Time for India to rethink the death penalty?

New Delhi, Dec 11 (IANS) Is it time for India to rethink the death penalty and join the majority of the countries that have abolished it? Rights activists say executions serve no purpose and it is the state's duty to treat mercy petitions, including of parliament attack convict Afzal Guru, with compassion and commute the sentences.

Home Minister Sushilkumar Shinde had last month spoken of a rethink on the death penalty, days after 26/11 convict Ajmal Kasab's top-secret execution on Nov 21.

According to well-known rights activist and lawyer Vrinda Grover, "India needs to urgently reconsider the death penalty as it is established that it does not act as a deterrent."

Kasab was the surviving Pakistani terrorist among the 10 who stormed Mumbai in the Nov 26, 2008, attack, killing 166 people.

Amnesty termed Kasab's hanging as a "significant step backwards" for India. Two days before the execution, India had joined a minority of 39 countries that voted against a UN General Assembly draft resolution calling for abolishing the death penalty.

After Kasab, a chorus has started for the execution of Afzal Guru.

On Monday, the home minister said he would examine the mercy petition of Afzal Guru along with that of six others after parliament's winter session is over Dec 20.

Putting forward her argument against the death penalty, Grover told IANS: "In the era of suicide bombings, a death sentence is not a deterrent."

According to lawyer Rebecca John: "India should rethink the death penalty and commute it to life imprisonment."

"The state has no moral or legal authority to take life," John told IANS, adding that "most democracies have abolished the death penalty and India should follow".

Press Council of India head and former Supreme Court judge Markandey Katju told IANS that he feels that the death penalty should "normally not be imposed except in cases of honour killings, in the case of dowry deaths, or fake encounters and for serial killers".

India, while refusing to sign the UN moratorium on the death penalty, said in explanation: "The draft resolution sought a moratorium on executions. India could not support the text in its present form."

The country has imposed an unofficial moratorium on capital punishment since the Supreme Court ordered in 1980 that it be used only for the "rarest of rare" cases.

According to Grover, the apex court has acknowledged that the death penalty is "a judge-centric interpretation of crime being rarest of rare, rather than principled".

"Also there are people on death row, including two executions, on the basis of erroneous judgment," she added.

In August this year, top 14 former judges, led by former Supreme Court judge P.B. Sawant, signed an appeal to President Pranab Mukherjee seeking his intervention to commute the death sentences of 13 convicts, who had been erroneously sentenced to death according to the Supreme Court's own admission.

The former judges told the president that two prisoners who had been wrongly sentenced to death had been executed - in 1996 and 1997 - due to the flawed judgments.

Grover says this "establishes that all institutions are fallible, including the Supreme Court, and it has said there is an arbitration in infliction of death sentence".

"Further aggravating is that most on death row have received legal aid, which shows that the more socially and economically disadvantaged are on death row.. We need to rethink why we are holding on to it," she said.

On Nov 21, the Supreme Court said that its constitution bench's landmark judgment of 1980 on the criteria for imposing death penalty needs a "fresh look" as there is "no uniformity" in following its principles on what constitutes "the rarest of rare" cases.

On Afzal Guru, John said: "His mercy petition is before the president, and please remember that a mercy petition is filed when all legal avenues have ended."

"If it is a plea for mercy, then as a society we should show mercy, and I do not think any useful purpose will be served by rejecting it," she added.

She also said that in Afzal Guru's case "there was a problem of legal representation, and again, there is no evidence of his direct involvement, only of conspiracy".

"All those directly involved in the attack were killed at the spot.. And given the delay, and the incarceration he has suffered for many years, the state can show him mercy and commute his sentence from death to life," said John.

Grover said in the case of Afzal Guru, "we need to see Kashmir as a long history of people who have not received justice" in cases of extra judicial killings and disappearances, "people who have constantly experienced grave human rights violations and no justice".

She said "in Afzal Guru's case, unlike Kasab, certain questions seriously point towards certain infirmities in the due process, and certain question of fair trial," adding that "the case requires serious reconsideration".

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