An imminent yet uncertain execution

PACHU MENON
Wednesday, 29 January 2020

As the fateful time gets closer for Mukesh Singh, Pawan Gupta, Vinay Sharma and Akshay Thakur, last minute efforts are being made by their respective legal counsels to have their hanging stalled. The run-up to the executions however continues to be mired in confusions and judicial wrangles.

As the fateful time gets closer for Mukesh Singh, Pawan Gupta, Vinay Sharma and Akshay Thakur, last minute efforts are being made by their respective legal counsels to have their hanging stalled. The run-up to the executions however continues to be mired in confusions and judicial wrangles.
This has prompted the Supreme Court to very categorically state that condemned prisoners should not be under the impression that the death penalty remains ‘open ended’ and can be challenged all the time by them. The ‘finality’ of death sentence is extremely important!
In remarks that came against the backdrop of the four death row convicts in the 2012 Nirbhaya gangrape and murder case filing one petition after another leading to the delay in their hanging, the court stressed it has to act as per law and judges also have a duty towards the society and the victims to deliver justice.
The observations appearing in a section of the press makes one revolt at the very idea of a system that takes all the pain to hasten through with the trails in such cases, delivers judgements, only to falter at the final hurdle.
Prisoners condemned to death continue to languish in jails across the country with many dying a thousand deaths even before their rendezvous with the hangman.
As things have come to pass, it is pretty much obvious that the death sentence in India condemns a convict to a fate worse than death. The long delays between pronouncement of sentence and execution has led to a situation where, having spent considerable time on the death row in the melee of mercy pleas and other legal recourses available, the convict deems a commutation of his death sentence as a human right.
While not denying that it indeed is a ‘paradox’ that those who had not shown any mercy to their victims were now pleading for it, the fact remains that some of the recent rulings is indicative of the arbitrariness in the judicial administration of capital punishment.
As things stand today, a death sentence is fraught with enough pitfalls. No, not for the system but for the convicts in that they are predestined for a lengthy wait for the State to decide the ‘legality’ of their hangings.
And more often than not the government bows down to the public perception of the crime committed and the verdict to be pronounced.
Mohammed Ajmal Amir Kasab was a vile chapter in Indian history and as is pertinent to every malady afflicting the country, was a Pakistani import. Even in this instance we weren’t above exhibiting our democratic credentials and affording the villain a fair trial.
But when there were insinuations that he was deprived of certain legal rights that would have allowed him to escape the gallows, one was pained by the flow of dialogue thereafter that painted the Indian judicial system as a monstrous creation and there was sympathy all-around for the vermin.
Kasab is now an example of an ‘execution by stealth’. Could it have been more incriminating?
The modern age executions are entwined in a web of diplomatic rigmarole. Granting pardons, reprieves, respites, remissions or commuting the sentence which rests with the highest constitutional head of the country is in itself a lengthy process.
When the petition for clemency is pending before the concerned authority, the execution of the death sentence stands suspended.
Often the Executive is faulted for delaying executions. It is justifiable too considering that the judges award the death sentence only in the rarest of rare cases and when the alternative option is unquestionably foreclosed. Then as argued why should the executive be allowed to entertain mercy petitions?
Yet, the discussions on the abolition of the death penalty notwithstanding; the whole country is held spellbound by the prospects of sending the Nirbhaya rapists to the gallows!
For, such has the intensity, the enormity of their crime been!
With a Delhi court pronouncement of the 22nd January, 7am, ‘tryst with death’ for the condemned convicts, the whole country was rejoicing with the family members of the victim who were happy in the knowledge that they had not been denied justice.
Finally the curtain appeared to be falling on the seven-year-old saga which held the nation in rapt attention over the manner in which the collective will of the people would sway the government into retributive action against the perpetrators of a crime which numbed the countrymen beyond words.
Renowned for its ‘peculiarities’ where the juvenile alleged to be the most brutal of the rapists convicted in the crime walked free after serving the maximum sentence of three years imprisonment in a reform house had already set the tone for a nationwide censure on the shortcomings of our criminal justice system; the delays in executing the death sentence on the other four, after one of them had committed suicide in police custody, further enraged the public.
Petitions intending to wake up our law makers and enforcers to reconsider the case and set an example by enforcing extremely stringent laws for such devilish crimes by juveniles however failed to elicit any response and ‘potential’ offenders like the ‘minor’ in the Nirbhaya case continue to be a threat to the society.
Meanwhile, lodged in Tihar, the four convicts awarded capital punishment in the heinous rape and murder case continued to enjoy the hospitality of the jail authorities as much uncertain about their fate as the government was about carrying out their death sentences.
Legal hurdles along the way making it certain that there will always be a considerable delay between the passing of an order and the actual execution, such matters will continue to be debated.
For that matter, some of the legal ‘recourses’ taken to by death-cell convicts have been preposterous, to say the least.
As in the Nirbhaya case where one of the condemned in an apparent bid to escape the noose had asked the Supreme Court to spare him the death penalty since life in Delhi is anyway getting ‘short’ due to air and water pollution!
Perfectly within his rights, as until all legal remedies are exhausted the execution cannot take place. But it’s these very loopholes in our judicial system which gives rise to the feeling that one has been denied justice.
And in consonance with the doubts persisting about carrying out the death sentence, the Nirbhaya convicts were given another reprieve. The Delhi government and prison authorities expressed their helplessness in the matter due to pending mercy plea of one of the convicts before the President of India.
With the Court issuing fresh death warrants after the rejection of the mercy petition by the President, the four convicts will be executed at 6am on the 1st of February – hopefully, that is!
Another inevitable uncertainty?

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