If an act of militant violence is committed on behalf of a group, punishing the individual may not quite be a just thing
By Debraj Mookerjee
THE PRESENT decade is likely to see greater voicing of opinions and bolder initiatives. The Supreme Court has in recent times almost taken charge of the CBI. Civil society groups are demanding greater say in the drafting of the nation’s laws, thus challenging parliamentary privilege in that particular domain. And now, the political establishment in three states (Tamil Nadu, Jammu & Kashmir and Punjab) has voiced, or has indicated the likelihood of soon voicing, its opinion against judgments pronounced by the apex court — confirming, respectively, the death penalty awarded to Rajiv Gandhi’s killers, Afzal Guru in the 2001 Parliament attack case, and Devender Pal Singh Bhullar, whose car bomb attack on MS Bitta in 1993 in Delhi resulted in 12 deaths. I am of the opinion that the trend is good. However, the instance of the political plea for clemency even after the President has dismissed mercy petitions needs to be justified.
In each of the three instances where the political class (namely elected representatives) has sought review of the death penalty for the accused, the appellant is either a terrorist or an active supporter of a specific act of terror. In each instance, the act of terror was directed at a prominent individual or individuals. The act was born of militant activism, itself the product of massive mobilisation for ethnic self-assertion. In short, each of these instances of terrorism (resulting in murder) was a political act. Because ethnic self-assertion cannot occur without some type of spontaneous mobilisation within a community, it is clear there is a political constituency that feels strongly about the death penalty being awarded to someone who committed the particular act of terror either to avenge the community’s sense of outrage vis-a-vis action taken against it, or in support of his or her community’s deeply felt ideological aspirations.
Clearly, there is an agenda behind the political classes’ advocacy against these sentences, and it is not against capital punishment per se. Nevertheless, the question to ask is this: is it in principle right for the political class to seek clemency for one on who even the President has refused to show mercy?
The Constitution was adopted (thanks to liberals like Nehru) in the name of the people of the country. Sovereignty rests with the people. The institutions of democracy are therefore like pillars in the Diwan-e-aam; they definitely are not in themselves the Diwan-e-khas! Ultimately, the people must have their voice heard, over and above everything else. State legislatures are the legitimate voice of the people. When Assembly elections in Kashmir are conducted successfully, do we not express satisfaction over the process, claiming (at times almost gratuitously) that the will of the people has been expressed, democratically at that? Politicians do at times pander to public sentiments; that is when they are seen to be really doing their job! It is quite unlikely that the nation will lend a patient ear if a state Assembly adopts an antinational resolution. But to resolve to seek pardon (even for terrorists) from the death penalty (to be commuted perhaps to imprisonment for life) cannot be seen as anti-national.
Punishing the individual can be seen as a slur on the community to whom he belongs
Death by hanging is State-sponsored retribution. It is the ultimate deterrent. But the death penalty also conflicts, some might argue, with the right to life and liberty. When the State takes away the life of, say, an Afzal Guru, it can (again one might argue) be seen as an offensive act against the community in whose name the act of terror was committed. Imprisonment for life is justice; death by hanging is retribution. The inflammatory potential of such an act is the trigger behind the clamour for clemency. If the issue did not really matter to the people, the political class would not bother. Sobriety and restraint are the hallmarks of a mature polity. The question is: Have we grown up enough?
Debraj Mookerjee is Academic and Commentator.