As the execution of the convicts in the Nirbhaya gang-rape case awaits the response of President Ram Nath Kovind to the plea for clemency by Vinay Sharma, one of the criminals, it’s time to look at the history of capital punishment in independent India. It is as replete with instances of judgments, convincing and questionable, as it is full of instances where the accused were convicted and the judges ordered them to hang but the execution was not carried out.
On every such instance, the intelligentsia comes up with the ’cause’ of human rights, which they argue criminals must enjoy as much as the law-abiding citizenry, albeit with stronger advocacy of amnesty when a criminal is served his just deserts than when ordinary people are on the killer’s hit list. The Nirbhaya case is no different, although the cry for mercy for the convict has not, mercifully, made it to the headlines yet. But a handful of journalists is pushing it gently by citing data of Amnesty International in some of the paragraphs of news reports in print.
To answer this lot, let’s go through some hard data of hanging convicts till death before debunking the argument that criminals have human rights, too.
History of hanging in India
Cases of murder after rape
The hanging on 14 August 2004 is perhaps among the few cases where the liberals can argue that the problem with killing a person is that, if you realise later that he was innocent, you cannot bring him back to life. Dhananjoy Chatterjee was hanged for rape and murder of a 15-year-old student in Kolkata. But it was a verdict that did not convince the intelligentsia.
A book was written in Bengali, dealing with the case comprehensively: Adalat-Media-Samaj Ebong Dhananjayer Phansi (Court-Media-Society and The Hanging of Dhananjoy). Based on the well-researched plot, a film Dhananjay was made, featuring as a lawyer Mimi Chakraborty who is now a TMC MP. The book and the film said Dhananjoy was made a scapegoat in a case of honour-killing, as the evidence and witnesses’ accounts did not add up. Much as all the courts through the procedure of appellate jurisdiction up to the Supreme Court upheld the capital punishment!
While both the book and the film are compelling works advocating the convict’s innocence, the courts in India are not known to be execution-happy. We have one glaring case of former Prime Minister Rajiv Gandhi’s assassins indulging in Tamil politics every other day — only because the courts spared them the gallows. Under what was called a draconian law in the 1990s, TADA, as many as 26 were accused of killing Gandhi whereas the capital punishment of only four of them could be upheld when the case reached the Supreme Court.
In the case of West Bengal, maybe the first lawyer the accused had hired turned around when Dhananjoy’s poor family could not pay his handsome fee, but it would be a stretch to assume that the subsequent lawyers he was given could not convince the Calcutta High Court and the Supreme Court of India that something was amiss in the police story, rather many things were. While it is said that the real battle between the lawyers of the two parties to a dispute happens in the lower courts and the higher ones merely check whether the previous judges missed crucial evidence or witnesses’ accounts that were submitted in the lower court, whatever could have proven Dhananjoy was innocent must have been brought to the notice of the high court and the Supreme Court of India. Now let’s look at the numbers.
Capital punishment so far
According to the data of the National Law University, 1,414 convicts have been sentenced to death in India after independence. But hang on! As many convicts never died with the noose around the neck.
Among the famous cases, Nathuram Godse was hanged after independence for the assassination of MK Gandhi and Yakub Memon was hanged for the Mumbai bombings in 2015, which was only the 57th execution in independent India.
That was two years after Parliament House attack convict Mohammad Afzal Guru was hanged. I am not going into the propaganda that his trial was unfair unlike what I did for Dhananjoy Chatterjee because all campaigners here belonged either to one community, Islam, or owed allegiance to one political faith, leftism, which made their case political.
In 2018, 162 people were sentenced to death by different courts, but no one was hanged.
Famous hangman: Nata Malik of Kolkata
Prior to his death in 2009, Nata Malik had hanged 25 convicts on death row, with the last being of Dhananjoy Chatterjee. Note that hangmen are a rarity in India, which was why the services of Malik were sought whenever a convict had to hang. In an execution-happy society, executioners wouldn’t be rare.
106 countries abolished death penalty. So what?
According to Amnesty International, 106 countries had abolished the death penalty as of 2018. The NGO adds that, in 2018, 2,531 people in 54 countries were given the death penalty for conviction in different crimes. Does that not make India hardly a case where a campaign to end the death penalty must urgently be carried out?
3 reasons why India wants to continue with death penalty
A reason for public support to capital punishment in India is cases involving terrorists where their gangs take hostages and demand the release of their partner-in-crime from the jail. In the infamous case of hijacking of the Indian Airlines flight from Nepal that was flown out from Amritsar to Kandahar, Afghanistan, the Pakistan-supported terrorists demanded the release of Maulana Masood Azhar. He was released by the Atal Bihari Vajpayee government under the pressure of families of the hostages. The radical maulana went on to establish the terrorist outfit Jaish-e-Mohammed that has killed hundreds of innocent people since then.
The other reason is that the people cannot bear the sight of a criminal leading a life funded by them. When public prosecutor Ujjwal Nikam said that Ajmal Qasab, the convict of 26/11, was enjoying biryani in the jail at the taxpayers’ expense, it led to a nationwide demand of his immediate execution. Subsequently, Nikam had said he had deliberately made up the biryani story to create the national outrage.
In 1986, con man and serial killer Charles Sobhraj had fled from Tihar Jail after bribing and drugging the guards, giving sleepless nights to the police of several States until he was recaptured in Goa. The authority realised later that he had fled the prison only to get caught and serve the sentence for prison break so that he could not be extradited to Thailand where he would be executed.
It is to save the state from such hassles that there is no consensus in India about ending capital punishment. Of course, the examples of the kind above project, in some way, that the Indian nation-state is too incompetent in retaining a criminal in jail without fuss. But then, if this is the apparatus of governance India has, the death penalty in the statutes is what India must live with.