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Updated: September 17, 2012 01:31 IST

Death is entirely discriminatory

Anup Surendranath
Comment (57)   ·   print   ·   T  T  

A life term for Kodnani and the hangman’s noose for Kasab show the arbitrariness in the judicial administration of capital punishment

Judge Jyotsna Yagnik’s invocation of human dignity while not awarding the death penalty in the Naroda-Patiya massacre case and the Supreme Court’s expression of helplessness while confirming the death penalty of Ajmal Kasab — sentenced in the 26/11 terror attack — go to the heart of the constitutional unviability of the death penalty. We would struggle to make any meaningful distinction in the culpability we attach to these two crimes but our collective response, in terms of the punishment they must receive, has been qualitatively different. While it will be debated whether it was appropriate for a trial judge to invoke concerns of human dignity at the sentencing stage, judge Yagnik’s judgment has also inadvertently demonstrated the inherent unfairness of the death penalty. One can’t help wonder about Kasab’s fate if he had appeared before judge Yagnik rather than judge M.L. Tahiliani. And it is precisely that unpredictability and inconsistency in the judicial administration of the death penalty that is at the heart of the principled objections to the death penalty.

Different responses

There has been very little discussion on why principled arguments against the death penalty should not apply in Kasab’s case. Raju Ramachandran, the amicus in Kasab’s case, did a terrific job in attempting to get the Supreme Court to commute Kasab’s death sentence but there has been very little else. As a nation and a society we seem to have quietly accepted the death penalty for Kasab despite all the objections that have been raised about the death penalty in the past. Kasab’s case is a significant setback for the move towards complete abolition of the death penalty in India. It was, in many ways, the perfect case for the death penalty. A profoundly hurt and grieving society, the guilt of the accused established through damning photographs and videos, wounded nationalism and the possible involvement of state actors across the border all contributed towards making Kasab’s case a strong validation of the need for the death penalty. It is as though we are acknowledging that there will be moments in our life as a nation where we will need to satisfy our need for collective revenge. A need satisfied with the gloss of the rule of law.

On what basis, then, do we not demand the death penalty for those who masterminded and led the carnage in Naroda-Patiya? Maya Kodnani as an MLA was supposed to represent and protect the interests of those in her constituency and not lead a mob of genocidaires to torture, rape and kill many helpless Muslims. Despite that, our acceptability of the punishments handed down in the Kasab and the Naroda-Patiya cases has proceeded along very different lines. There will certainly be no sustained demand for the death penalty for Maya Kodnani and Babu Bajrangi but there is widespread satisfaction at the confirmation of death penalty for Kasab. That this qualitative difference in our perception of the two crimes has found reflection in the judicial administration of the death penalty is most unfortunate with the invocation of human dignity in one case and no meaningful engagement with it in another.

The issue is not whether the death penalty offends human dignity or not. As a polity, we have unfortunately decided that it does not. The primary issue is whether it is possible to develop a model of administering the death penalty that is consistent and non-arbitrary. Judge Yagnik chose not to impose the death penalty because of her commitment to the position that the human dignity of all convicts must be respected. Judge Tahiliani either does not subscribe to that view or believes that it is inappropriate for a trial judge to take such considerations into account. Either way, it exposes why the ‘rarest of the rare’ framework cannot work in a fair and consistent manner. It ultimately leaves significant scope for judicial discretion where all sorts of factors creep in, and has ensured that comparing the death penalty in India to a lottery would not be an exaggeration. An analysis of death penalty cases in India from 1950-2006 by Amnesty International confirms that administering the death penalty has been an arbitrary exercise. Essentially, it was observed that in many similar circumstances some convicts were awarded the death penalty and others were not.

In the pursuit of consistent application of the death penalty, is the solution then to completely remove judicial discretion? Should we develop a list of very specific crimes where the death penalty is automatically awarded? Before it was found to be unconstitutional, Section 303 of the Indian Penal Code provided that an individual who committed murder while serving a life sentence would be automatically sentenced to death. Emphasising the importance of individual sentencing, five judges of the Supreme Court in Mithu v. State of Punjab found the automatic sentencing to be arbitrary and unjust. The inability of the sentencing judges to take into consideration individual circumstances while deciding the sentence, the judges felt, would cause grave injustice to the accused.

Achieving a balance between judicial discretion and individualised sentencing has proved to be an impossible task. The Supreme Court has tried to address this by developing guidelines in cases like Bachan Singh and Santosh Bariyar without much success. A damning indictment of such attempts has been the recent appeal by 14 eminent judges to the President to commute the death sentence of 13 convicts.

It is stated in the appeal that the Supreme Court itself has admitted to the wrongful administration of the death penalty in these 13 cases and that it would be a grave miscarriage of justice to not commute their sentence. It is time for the Supreme Court to recognise that it is attempting the impossible by trying to achieve a consistent application of the death penalty while maintaining the discretion of judges.

This debate between consistent application of the death penalty and individualised sentencing was at its peak in the U.S. Supreme Court in the 1970s. In Furman v. Georgia (1972), the U.S. Supreme Court raised constitutional concerns about the discriminatory and arbitrary use of the death penalty. After the judgment in Furman, many States responded with new guidelines for imposing the death penalty, including some mandatory death penalty schemes. While the attempt of the States to provide guidelines was upheld, the mandatory death penalty schemes were struck down in Gregg v. Georgia in 1976. However, the U.S. experience with ‘guided discretion’ since then has been disastrous and has been documented in great detail by the Steiker Report (2009) commissioned by the American Law Institute (ALI).

‘Tinkering with the machinery’

The ALI’s model framework for the administration of death penalty developed in 1962 provided the basis for the death penalty statutes that the U.S. Supreme Court found acceptable in Gregg. However, after the Steiker Report came to the conclusion that the death penalty continued to be administered in an arbitrary manner, the ALI deleted the death penalty provisions from its Model Penal Code in December 2009 with no proposal to introduce another framework. Justice Harry Blackmun’s judicial view on the death penalty while on the Supreme Court holds an important lesson for India’s judges in the Supreme Court. Appointed by President Nixon, he started out upholding the constitutionality of the death penalty including mandatory death sentences in the 1970s. Until a few months before his retirement in August 1994, Justice Blackmun was a supporter of the death penalty by upholding many attempts to achieve its non-arbitrary application. But in Callins v. Collins in February 1994, Justice Blackmun concluded that efforts of the U.S. Supreme Court over two decades since Furman to ensure fair and non-arbitrary application of the death penalty had proved to be futile. Finding the death penalty to be ‘fraught with arbitrariness, discrimination, caprice, and mistake’, Justice Blackmun revoked his support for the death penalty by declaring that he would no longer ‘tinker with the machinery of death’. The Indian Supreme Court must recognise the impossibility of what it is trying to achieve.

(Anup Surendranath is an Assistant Professor of Law at the National Law University, Delhi, and a doctoral candidate at the Faculty of Law, University of Oxford.)

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Both are killing one is a trusted insider with highest level of education and an elected representative who
can be considered a traitor to the country and the other is an outsider Pawn of his handlers acting without
a reason.

The crime committed by Maya kodnani outweighs every crime as she has done it to her own people with
all knowledge , intent and planning.

This shows the general ambiguity or bigotry prevalent all over the country and a populace which is so
used to ambiguity that it has become blind to it.....

Bold and honest article ...., nice to know there are still people who see things as they are and not through
some filtered lenses

from:  Naser
Posted on: Sep 18, 2012 at 12:53 IST

Extraordinary.. a foreign national waging war against the Indian state
is a very different question from an Indian national inciting violence.
Mr. Surendranath seems to think that Pakistani's coming to India,
sponsored by the ISI and Jihadi groups are protected species.

from:  Aditya
Posted on: Sep 18, 2012 at 12:50 IST

The decision for the death sentence or the life imprisonment for the heinous crimes committed depend on the mood and public response/ feed back that the judge may get through media. It has been found that in the cases where media makes much hue and cry the judges are impressed and forced to pronounce the death sentence and in the cases where public does not bother decision for life imprisonment has greater probability. The judges decide as per the public mood and involve the element of democracy in the domain of justice.

from:  Tamsheed Gilani
Posted on: Sep 18, 2012 at 10:49 IST

If Mr Surendranath is arguing for abolition of the death penalty I have
no problem. I for one would like Kasab incarcerated for life (and that
means till he dies) in the equivalent of an american supermax prison.

However, his comparison of Kasab and Maya Kodnani is odious.

from:  Arun Visvanathan
Posted on: Sep 18, 2012 at 10:06 IST

He should have argued death sentence for Kodnani only and should not have drawn Kasab into debate. This shows immaturity and total bankrupcy of thoughts.

from:  Abhishek
Posted on: Sep 18, 2012 at 09:42 IST

The only functional institution in the country, the supreme court is
now being targeted as part of an unfinished business of subverting our
constitution for vested interests. Is the law of the land supreme? Let
the law take the course was the refrain of "The Hindu" in many
instances, even in the instance of the Kanchi Shankaracharyas (citing
many "scholars", "intellectuals", and the PM supporting that). So why
not let the "law take its course"?

As the supreme court observed recently, freedom of speech is not
absolute, it comes with responsibilities and boundaries!

from:  P.S.Swami
Posted on: Sep 18, 2012 at 08:56 IST

Anup needs to take a broader look on death penalty. The killers of
Indra Gandhi were hanged but the perpetrators of the Sikh genocide in
1984 are still free and in fact sponsoring more hate speeches and acts.
The Killers of Rajiv Gandhi are still in the jail and there are pleas
for the commutation of their death sentence. why this disparity then?

What will abolition of death penalty achieve?

from:  Badri
Posted on: Sep 18, 2012 at 07:21 IST

Though the Kasab case is different from the Kodnani's, the result is the same. Terrorize people, murder people. It doesn't matter whether the Kodnani incident was in response to another event.

from:  Rizwan
Posted on: Sep 18, 2012 at 03:38 IST

Laws made by humans and the administration of such laws are not necessarily perfect. It is possible to argue that there could be arbitritariness even if a person is not sentenced to death. I am sure there are numerous cases where the sentence awarded to one person for a crime committed by him/her could be different from that awarded to another for committing a similar crime. As far as the article is concerned, it is pertinent to mention that Kasab is not an Indian citizen who came to India for the express purpose of waging war against the Indian state. He was ideologically indoctrinated and was prepared to die for his chosen cause. His case cannot be compared to that of an Indian citizen convicted of murder. I think the author is trying to make a case for the death penalty awarded to Kasab to be commuted tothat of life imprisonment.

from:  krishna
Posted on: Sep 18, 2012 at 00:15 IST

Mr. Surbhit Gupta
You claim that that Narodya Patiya pogroms were a "retaliation" for the Godhra violence. Problem is that the people who were killed i n Narodya Patiya had nothing to do with the crime in Godhra but belonged, to the same community as the alleged community that carried out the Godhra carnage. What you now establish by this perverted logic is the idea of punsihing an entire community for the crimes of one more individuals of that community. This is a dangerous precedent especially since you now have large Indian communities all over the world.
As a resident of Norway, I recollect that in 1982, six Indians were indicted for the grotesque gang rape of a deaf and dumb Norwegian girl. Does that then justify the Narodya Patiya type reactions against the rest of the law abiding Indian community in Norway? Or the 1984 pogroms aginst innocent Sikhs after the assasination of Mrs. Gandhi? Indeed sad that even in 2012, educated Indians believe in collective punishment.

from:  V.Suresh
Posted on: Sep 17, 2012 at 23:31 IST

The author is confusing the issue.He is not clear in his objective.While
he is not reconciled to the death sentence for Kasab,he laments that
there will be no sustained demand for death penalty to the convicts in
the Gujarat riots.He is opposing death penalty.At the same time the
author would like to impose death penalty on riot convicts and he would
like to save Kasab from death sentence.
I hope that no terror group had pressuried him.I also hope that the anti
Modi campaigners have not outsourced him.
In the end the article will encourage terrorism.It will help to further
the communal divide.

from:  S.Srinivasan
Posted on: Sep 17, 2012 at 23:18 IST

Prof. Anup Surendranath should now write an article on how the two men convicted in the Pune BPO rape and murder case should be set free. Good work professor, you have used your knowledge to make this world a better place to live (for criminals).

from:  Viswanathan
Posted on: Sep 17, 2012 at 21:53 IST

Writer has not talked about another criteria called conviction beyond reasonable doubt. In riots case it is very difficult to prove the guilt
beyond reasonable doubt. I think because of which judge may not have
awarded the death sentence in that case

from:  ankur
Posted on: Sep 17, 2012 at 21:52 IST

It is absurd to compare the two incidents and the accused. In Nadia Patia case it was in reaction to burning of men, women and children in train by a particular community. The perpetrators of that crime 30 of those, court gave only life imprisonment considering the circumstances. Though at Nadia patia it was reaction, court gave life imprisonment to so many that they should not have taken law in their own hands.Whereas in Kasab case, there was no reason for him to kill so many.He was trained to kill.The only issue can be that why it is taking so long to hang him? It is loosing its deterrant value by delay. Court is right in confirming the death sentence.

from:  Srivastava
Posted on: Sep 17, 2012 at 21:41 IST

Mr. Surendranath,

Do not understand whether you do not see the difference or you blindly want to sensationalise a non-issue.

A man kills his wife for no reason or out of perversion. He needs to be punished as it is a rarest of rare cases. A wife cheats on a man and out of agony he kills his wife, then it is more of a act of reaction and does not fall in the rarest of rare cases.

If he understands the difference in the above scenario, he can very well appreciate the difference between kasab's case and naroda patiya case and will not throw muck at the judgement of the court and trying to potray as if Muslims do not get just judgement in India.

from:  Vijay
Posted on: Sep 17, 2012 at 21:38 IST

this is the precedence of '84 riot judgement the judiciary is following. Reverse the same and you can qoute all on human dignity et al.

from:  Martin Kurian
Posted on: Sep 17, 2012 at 20:43 IST

No arguments please. Hang the culprit kasab as early as possible

from:  packottusasi
Posted on: Sep 17, 2012 at 20:26 IST

Every nation has a sovereign right to protect itself against
terrorism and severely punish perpetrators thereof. Generally
terrorists of foreign origin are treated under separate set of laws;
and in extreme cases beyond all laws; e.g. post-9/11 USA had created
a Guantanamo Bay for incarcerating suspected foreign terrorists who
had no access even to basic human rights, not to talk of
constitutional or legal rights like decent trial. It was thus indeed
admirable for India that Azmal Kasab— admittedly a Pakistani who was
caught red-handed as a perpetrator of gruesome Mumbai attacks at the
behest of ISI,- was given a fair trial and appeal up to the Supreme
Court, precisely for the sake of justice and human dignity. In view
of reliable direct evidence against Kasab, there was no ground
either for the trial judge or the apex court to oust this case from
the category of “rarest of the rare”. In Maya Kodnani’s trial court
decision, however, the magistrate has appreciated available
evidences at her level best, which is subject to further appeals in
high court and the Supreme Court. One may oppose capital punishment
but to build a case just for saving life of a proven enemy of the
country like Kasab by discrediting our own judiciary for its so-
called “arbitrary” awarding of death penalties seems to be too much.
The 15-judges’ memorandum against award of death penalty nowhere
censures any characteristic inadvertent or deliberate
“arbitrariness” in our judicial system. Such comments may supply
fodder to those who examine institutional performances from communal
angle. Can one expect a more perspicacious approach from respectable
members of legal academia?

from:  D.K.Bhatt
Posted on: Sep 17, 2012 at 20:19 IST

I find the comparison of the two offenses, wrong, and reprehensible.
In the first place, capital punishment is unethical, immoral, & cruel,
to say the least. India is one of the few countries that executes
persons found guilty of a cruel crime. To suggest that Maya Kodnani
should be meted out the same punishment as Ajmal Kasab, is downright
wrong. What we need is not a comparison of the offenses committed, but
an effort to change the law, and abolish capital punishment. I realize
that it is only applied in the "rarest of cases", but it is still
wrong.

Countries like UK and Canada abolished capital punishment long back.
How can we call ourselves members of a civilized world, if we continue
to execute offenders? I wonder why the society in India does not see e
need to examine this.

from:  Mohan Narayanan
Posted on: Sep 17, 2012 at 20:19 IST

Disappointingly argued, even if the importance of repealing the death penalty has been highlighted. If the author has his way, no doubt Kasab would be flown back to Pakistan First Class to a hero's welcome. After all, one must respect the dignity of man, even if he has been explicitly trained to murder Indian citizens en masse without refrain, morphing into an automaton of death.

from:  Samir Mody
Posted on: Sep 17, 2012 at 20:09 IST

I understand the pro and contra standing of death penalty.
Technically we can't outperform over western rest of the world.
However ,moraly we can achieve the supermacy through non violence.
Our nation has been built up on the pillar of truth. There is no space for death penalty in a truthful world.
Do we have no respect to our father of nation ?

from:  Sebastain
Posted on: Sep 17, 2012 at 20:04 IST

I don't understand why the author is comparing two crimes - one resulted
from the sudden outrage from a group a people after coach of people are
burnt to ashes and the other who meticulously planned with a full
conscience for years and almost waged a war against our nation.

from:  chaitanya
Posted on: Sep 17, 2012 at 20:02 IST

The comparisons here do not stand to reason. In Kasab's case the highest court has approved the death penalty. In case of Kodnani, it is the first court which has given the verdict. The prosecution can still ask for death penalty in appeal. Apart from that in Kasab's case these terrorists were sent from across the border trained by Lashkar who is a creation of ISI which is part of Pak army which is the de facto government in Pak. It was no less than external aggression. Some people would argue that his case should have been tried by a military tribunal. Maya has been found to be involved in the conspiracy. In Kasab's case no body is seriously pursuing the conspirators. On the other hand our Government is negotiating with the Pakistani Government which is culpable of sheltering the criminals if not involved in the cospiracy itself

from:  Ramakrishnan K
Posted on: Sep 17, 2012 at 19:33 IST

I dont think it is proper to compare the two judgments. Kasab was a case of a terrorist attack against our country. There is however a case of reviewing the death penalty as is being done in most countries. The punishment should act as a deterrent as well as should allow the person convicted to realise their serious mistake and perhaps repent!

from:  S.N.Iyer
Posted on: Sep 17, 2012 at 19:16 IST

It is foolish to argue that Kasb's killing Indians can only be termed waging a war against India while Maya Kodnani's organised crime of massacring innocent Indians, most of whom were women and children belonging to the constituency she herself represented can not be treated as crime against the nation!Is not Kodnani's going against the interests of the citizens of our country, that too innocent persons and masterminding and leading a mad crowd,instigating them against the hapless fellow citizens and supplying lethal weapons like swords and enjoying with all sadism, when the innocent women and children were massacred more an anti national and unpardonable crime than the murders committed by a hired, uneducated and brain- washed Kasab against people who are alien to him? In all fairness, Maya Kodnani and Bajrangi who have so very heartlessly killed our own country men and have gone against the tenets of the nation deserve gallows much before Kasab is hanged.

from:  Tharcius S.Fernando
Posted on: Sep 17, 2012 at 18:53 IST

All the comments are really nice and appreciable.. Everyone has its own view of perceiving the question of death sentence. Even I don't want that Kasab should be given any scope of life. However, law never attaches itself to any emotional argument and in law prima facie, there is no rule as such. So, we cannot put two cases on equal footing. Though we can draw an analogy between the two but it is ultimately the judge to decide.

from:  Monika Verma
Posted on: Sep 17, 2012 at 18:50 IST

One fact that is painfully apparent to me in the above comments is this - our country, despite all the talk of religious tolerance, is very deeply divided on the basis of religion. Most of the comments by Hindus and Muslims for this article lie on the opposite extremes. I believe that the trauma of partition and the resultant mistrust between Hindu and Muslim communities gone very deep indeed.

from:  Vineeth
Posted on: Sep 17, 2012 at 18:35 IST

Looking at all other comments I am tempted to write here. As @Satish summed up why
Kodnani did not do the same as Kasab, I really disagree. What if you had the handlers of
Kasab in India, wouldn't you shout to hang them as well? I know its 'Yes' then why not for
Kodnani. Mr. Anup has brought a very valid argument. Either its raging a war against India
(in case of Kasab) or mass murdering its own citizens (in case of Gujrat riots), the
sentencing should be the same/similar as its the same type of crime looked from different
perspective. In the end our law is not binary (yes/no kind of) and there is lots of room for
interpretation, so I do agree with the point of view of Anup in the article.

from:  Abhishek Dwivedi
Posted on: Sep 17, 2012 at 16:11 IST

Capital Punishment is and will remain subject to debate because to
some it depends on the nature of the crime and to others, it is an
unjust sanctioned murder.

It is not possible to narrow down on what is consistently right and
wrong in such cases.

To achieve a consistent application of the death penalty irrespective
of maintaining the discretion of judges seems impossible to me.

from:  Kanika
Posted on: Sep 17, 2012 at 15:28 IST

No judicial system is perfect. Perfect justice will continue to be elusive however much the society matures. Leave alone the discretion in awarding death penalty, innocents have been executed in the US which is deemed as role model of liberty, justice and equality.

from:  Syed
Posted on: Sep 17, 2012 at 14:59 IST

A thoughtful and incisive article. These judgements do point to an element of arbitrariness -
call it by any other euphemism if you like - and the degree or magnitude ,perhaps,would vary
from one learned judge to another.
The Hindu should be complemented for publishing this rather than being asked not to
provide a platform for such author(s).

from:  M. Salahuddin
Posted on: Sep 17, 2012 at 14:30 IST

Poor article, not comparing the circumstances, intentions and other relevant
actions. Why is there an article in the newpaper, discussing judgements passed by
the judges after all? One should test the judges prior to appointing them. Should we
discuss all other similar judgements--like why did Sanjay Dutt remains out of jail
and not tried under TADA (despite keeping weapons in his house), while others (who just happen to be at his house) were punished under TADA?

from:  valmiki
Posted on: Sep 17, 2012 at 13:46 IST

@surbhit gupta: would you genuinely accept the naroda-patiya massacre as a
rightful revenge for godhra, literally, an eye for an eye? if so, then shouldn't your
"self-styled avengers" have found out and attacked only those that committed the
carnage at godhra? else, we'll have a chain reaction. A kills B, C kills D for revenge,
and F kills E and the numbers explode. In fact, if we are truly talking of revenge as justice, then both Qasab and Kodnani deserve the death penalty.
The very reason why we have a justice system and not a lynch mob is that such arbitrary self-styled justice is not a civilized system, nor does it serve any purpose except to provoke a chain reaction of violence. We have seen it during the partition of India where mobs in India matched those in Pakistan in their bloodthirstiness. I would propose that those convicted in Godhra and Naroda Patiya case all get the death penalty.

from:  Vivek
Posted on: Sep 17, 2012 at 13:14 IST

Rightly Said Mr.Surendranath. Death sentence should be awarded to those who are killing the people in any form. The Law should be equal to all, whether the person is from our country or outside. Everyday so many people are killed, so how we are going to give them the punishments immediately. We should not help the fire to spread, instead it should be washed out.

from:  Mubeen
Posted on: Sep 17, 2012 at 12:51 IST

Argument understood, but the crimes by Kasab and Kodnani are different, so
different levels of punishment are justified. If Kodnani had colluded with foreign terrorists and open fired at innocent people, judge Yagnik would have sent Kodnani to the gallows too. If Kasab would have only instigated the crowd to kill, he would have got only life imprisonment. Comparig individual cases arbitrarily is not good. BTW, will the author also put in examples the punishments awarded to those who burnt the train coaches with people in them in Godhra and the Samjhauta exp blasts too?

from:  Umash Singh
Posted on: Sep 17, 2012 at 12:33 IST

the main objective of the writer is to highlight the policy of
prohibiting or stopping the practice of Death Penalty by Highest
Courts of the land , which has been ratified by more than 100 nations
throughout the world. He wants to highlight the drawbacks of the
Capital punishment so that india also ratifies the policy. By
comparing two altogether distinct cases he has made his point the
world at large however questioning the decisions of two different
individuals who happen to be judges, the author has touched two sets
of crimes one involving communalism and other terrorism. Both of these
are dangerous for the survival of democracy in india and effective
soulution to both is Capital punishment.

from:  Sumeet Jalgaonkar
Posted on: Sep 17, 2012 at 12:26 IST

I dont agree with the author.
1) Some amount of discretionary powers needs to rest with Judciary. Infact I would even advocate for them having more such powers.
The reasons
- No matter how much we may document the types of crimes, but life is always steps ahead of our forsight. Not all crimes may be so easily classified by Written Rules as 'requiring death penalty or not'.
We see so many times that criminals find loopholes in existing laws to evade the punishment they deserve. SO Judges must have their descritionary powers.2) There is no requirement to scrap Death Punishment. There have hardly been a hundered capital punishments in India so far. Contrast, I am sure more than 100 murders would be taking place in entire country on one single day.
Furthermore, there are far more avoidable deaths caused due to malnutrition, Health, road accidents etc. Its more important to avoid such deaths rather than focusing on the fate of handeful of criminals awaitng death sentence.

from:  Prashant Kaushik
Posted on: Sep 17, 2012 at 11:57 IST

The nation's silence over the issue can be considered acceptance, and
it only shows why such a provision (of death sentence) was made
available in the law of the land. The law makers were right in
explicitly specifying that the death sentence should be used only in
the rarest of the rare situation. The arbitrariness in administering
it might be reduced if it is made mandatory for death sentences are
approved by a group of judges (not just one) unanimously. Something
like the 1957 hollywood movie, 12 Angry Men.
But calling the current situation as lottery is gross disrespect to
the process.

from:  guru
Posted on: Sep 17, 2012 at 11:43 IST

The difference between the Naroda/Patiya and 26/11 case is that between sheer madness by a handful of people and state sponsored terrorism, planned years and precisely executed respectively.
Terrorists are trained and harboured across border to cause mayhem and at large war against State India and its government. So the death sentence upheld in the Mumbai attacks was necessary to send across a strong message, determination to counter terrorism in all forms.
Moreover life sentence to terrorist(in these deadly acts) would nurture environment of more Kandhar like cases where the entire nation will be taken hostage. The Indian judiciary has taken the right decision in upholding the death sentence for 26/11 terrorist.

from:  Ardhendu Sardar
Posted on: Sep 17, 2012 at 11:26 IST

The author is neither a practising lawyer nor has the experience of a judge.He teaches Law. His conceptual clarity is shallow,rather doubtful. The belief is reinforced by his inept comparison of Kasab with Maya Kodnani.He is a prisoner of prejudices and pseudo secularism. Comparing a rotten egg with an apple is the silliest thing one would not expect from a teacher.Mind you, I am no Modi’s acolyte. Kasab attacked India’s sovereignty and killed hundreds of innocent Indians assisted by the ISI. Kodnani’s was retaliation to a provocative action.Both harmed the innocent Indians.
A K SAXENA (A retired civil servant)

from:  A K SAXENA
Posted on: Sep 17, 2012 at 11:25 IST

I m absolutely against the citations of US Supreme court's rulings and subsequent American Law Institute's suggestions.In matters pertaining to questions involving the importance of Criminal Jurisprudence it would not be wise and appropriate to compare two different jurisdictions (In this case US & India) as it is a basic knowledge that in United States the Supreme court goes by its own spirit derived from the "Due process of Law" however Indian Supreme court follows the "Settled priciple of Law".I believe that highly enlightened and intellectual Jurists and Leagl professionals are well aware of this.

from:  Venkatakrishnan Govindasamy
Posted on: Sep 17, 2012 at 11:14 IST

Can't capital punishment deter the rate of brutal crimes to an extent?I am totally in favour of awarding capital punishment to poeple who commit severe crimes and i am very sad to see that media still ,may be to gain popularity ,air views in favour of commuting his punishment?
How on earth we should commute the punishment in Casab's case, sgainst the feeling of all the poeple in India.In my view,casab's and kodany's case are not similar.Casab's role in the killing spree was apparent where as Kodany's case is really many dimensions and can never be compared with this.In gujarat,the post Godhra situations was really uncontrollable.She took part in inflaming the violence.But her act was not proved in such a way that she deserved death penalty.
Why on earth poeple come up with strange ideas about casab's case.I am sure such things will happen only in India.In other countries everyone will stand united in such cases.In India opportunistic politics play spoilsport in everything.

from:  Pallikunnil Divakaran
Posted on: Sep 17, 2012 at 11:13 IST

I read 'The Hindu' Group's 'Frontline' magazine cover story a month ago on the arbitrariness of the death penalty and how so many former Judges admitted to the arbitrariness -- it is mostly the poor who get the death penalty as they don't have good lawyers. In India where the wheels of Justice grind very very slowly and where the legal-aid is unaffordable for the majority, it is better to scrap away the death penalty altogether as it has been reasonably proved that death penalty does not act as a deterrent to anybody committing crime.

from:  Yashwanth P
Posted on: Sep 17, 2012 at 10:47 IST

Perhaps the author has lost touch with reality. This is not his doctoral thesis, to draw parallels between two theoritical cases and a generalization of crime. Kasab is a terrorist, an act against the security of the country, Naroda-patia is an internal matter, these two cannot be compared unless it is purely academic. If it is academic it should not be published in national news papers. Just imagine, you want to give Kasab life imprisonment, how stupid is that, or hang a rioter, we will have to hand 100s of people. Will the HR junta agree to that.

from:  Vijay
Posted on: Sep 17, 2012 at 10:41 IST

A very well written article and his views on death sentence are highly
convincing. But majority of our people including the so called
meritorious, efficient and educated sections do not understand such
writings or rather do not bother to read and understand. Their stock
response is who bothers about Godhra victims. At the same time
Narendra Modi’s inability to find the perpetrators of Godhra and
punish them are not questioned. We as a society are beset with many
biases. We are hopelessly polarized on many lines like language,
religion, caste, food habits, dress and many other but majority of
Hindus are united in one matter that is in their pathological aversion
towards the minorities. Using this Narendra Modi gets elected
repeatedly. I feel Kasab judgment was also influenced by this jingoism
ably popularized by the electronic media. The author talks about
demands for death sentence against Mayaben Kodnani. Only the riot
affected may demand it. Otherwise I heard many voices sympathetic to
her among the articulate sections. The ignoramuses who want Kasab
hanged immediately do not have the common sense to understand that he
wants exactly that. I recommend them the novel ‘Papillion’ to
understand the travails of a condemned prisoner. Is that a better way
of doing justice or end his miseries in one go by hanging him?

from:  Baikadi Suryanarayana Rao
Posted on: Sep 17, 2012 at 10:29 IST

Rightly stated above,that death in Indian judicial system is discriminatory.Although there is hardly any difference between the crimes committed by Ajmal Kasab and Usha Kodnani,but the sentences served are different.Isn't Kasab a human being like Kodnani?One feels afraid to state the hard fact here that perhaps it is the difference in the religion of the two convicts that subjects them to different treatments.What else can be the reason?If they are talking about human dignity then it is Kasab who should get advantage of this proposition more than Kodnani.Kasab is an uneducated,illiterate and brainwashed person who perhaps due lack love and respect for human beings committed the inhuman act.On the other hand Kodnani was a doctor by profession , an educated person and the so called leader and representative of public.In fact she deserves a harsher punishment than Kasab.

from:  Tajamul
Posted on: Sep 17, 2012 at 10:14 IST

Articles such as these leave one with a sickening feeling inside. I fail to understand how anyone can even make a case for a foreign terrorist like Kasab. The main reason why the judge did not award death to the riot accused was because she held that while there was a criminal conspiracy, the riots were a response to the Godhra train carnage.
Some people may indeed argue reasonably for death to riot accused. But to compare them to hardened terrorists full of hate against the very idea of India begs reasoning.

from:  Svetaketu
Posted on: Sep 17, 2012 at 10:09 IST

A thought provoking and well written article. Throws light on the
arbitrariness in the judicial process while awarding death sentences.

from:  Chacko George
Posted on: Sep 17, 2012 at 09:39 IST

Although, Death Penalty is wrong and in most cases against human
dignity,comparing the death penalty in India to a lottery would
definitely be an exaggeration. We need Supreme Court to set up
guidelines and not mandatory statutes. If death penalty is entailed in
our penal code, it should be administered else an amendment should be
made to the penal code. The judiciary in India should stick to the
task of administering most appropriately our constitution and penal
code. Judge's discretion although important should play a much smaller
role in deciding the appropriate punishment.

from:  Harhvardhan Hemant Samvatsar
Posted on: Sep 17, 2012 at 08:37 IST

While there could be a strong case for considering death penalty to Maya Kodnani and Bajarangi, its comparison with the Kasab case is onerous. In fact all cases where death penalty can be contemplated will differ from each other. To cite the example quoted by the author, Kasab had raised war against India, while Kodnani did not, however ghastly her crime may be. Thus, there is a qualitative difference. As regards abolition of death penalty, three major countries, India, China & the U.S. have not abolished it and Russia did it just to comply with condition imposed by the European Union. In fact, abolition of the death penalty is just an European utopia. This has not made European countries less violent as compared to others. In war-like situations involving threat to the existence of the nation death sentence has to be considered. Holding Kasab for his life-time could be a costly exercise and can invite another terrorist attempt to release him. Why take this chance? Just hang him.

from:  Pramod Patil
Posted on: Sep 17, 2012 at 06:59 IST

It is a pity to see scholars argue emotively ignoring the fuller context or consequences. Such logic I though was the exclusive preserve of politicians but now scholars too play for the gallery with warped logic. Kasab's case is a war against India and the other cases are crimes. If Kasab were to be incarcerated for life, Khandahar like extortions will arise whereas the others will look for remissions on national days to exit the prison soon. It is time that Hindu does not offer a platform for such arguments.

from:  Siva
Posted on: Sep 17, 2012 at 06:48 IST

We should be greatly thankful to Mr. Anup Surendranath for raging such debate sitting in his comfort zone.definitely such debate/editorial is not going to make any difference but needless to say will invoke a sense that whatever be the graveness of crime committed there will be always some self proclaimed masters who will publish sch article in order to wash his hand in flowing water.
definitely you can seek death penalty in the Naroda-Patiya massacre case but not in case of A.Kasab . Both cases are far apart and uncomparable.

from:  ravi
Posted on: Sep 17, 2012 at 05:05 IST

Kasab fired bullets on innocent victims. Kodnani is
found guilty of provoking and she did not fire a bullet.

from:  Satish
Posted on: Sep 17, 2012 at 04:43 IST

Prof. Surendranath has put forward very lucid essay on why death penalty ought to be
abolished if not in law but at least in practice. Unfortunately, not too many Indians are ready
to look at the reasons that Mr. Surendranath has cited for his case. I am afraid the
cexistence of death penalty is seen as a due revenge by far too many people. So, I don't think we are likely to see much progress on that front any time soon. However, perhaps, the professor can address his mind to the issue of credibility of the judicial system in India. Lots of people, with evidence on their side, believe that the country's judicial system has been highly ineffective in delivering timely justice.
How to improve the functioning of our system and enhance its credibility among masses is a challenge worthy of the evidently sharp mind of the professor. Also as a footnote, India
actually hangs very few people as compared to other nations.

from:  Virendra gupta
Posted on: Sep 17, 2012 at 04:33 IST

The article is slanted and contrived in its argument that all
cases of culpable murders should be given either death penalty or
other penalties with out discrimination.
This amounts either death penalty for all or no death penalty!
Cases can be quoted and judgement in other cases can be cited but
it is for the judge to decide the level of culpability and
whether it is rarest of rare or not.Of course it is open to
judicial review of appeals as provided in our laws
The concept of comparing one crime with another and discussing
the judgement appear far fetched and against principles of
natural justice. Death penalty can be banned or given in the
rarest of rare case-This is a different discussion. But it is for
the judiciary to decide the culpability in the individual case
and decide purely on the merit of the case under the law with out
clouding the judgement.You can not punish a criminal to death
because another murderer has been given death sentence The
punishment can only be based on culpability level of the
individual case and circumstance as decided by the judge .
One wonders why the author is against judicial discretion , as
the process of judgement is only by logical discretion - which
is defined as the freedom to decide what should be done in a
particular situation..

from:  Krishnan
Posted on: Sep 17, 2012 at 04:03 IST

Death Penalities are unconstitutional.They are a complete violation of
Human Rights.Either we need to develop a system that is not arbitrary
and provides for uniformity,else we will continue to see the Casual
randomness in which in some cases we want to set up a deterrent and
award the death penalty and revoking the same in some cases.What needs
to be realised is that nothing is actually more painful than Life
Imprisonment.I hope the president steps up for the cause

from:  Rajdeep Singh
Posted on: Sep 17, 2012 at 03:02 IST

i think it is completely baseless to form an analogy between naroda
patia and kasab's case for raising questions on judiciary of india.Kasab
case was apparently a terrorist attack,i don't really see any similarity
with naroda patia.Clearly naroda patia was a retaliation to the godhara
kand.So, it is completely baseless to compare these two cases.

from:  surbhit gupta
Posted on: Sep 17, 2012 at 01:52 IST
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