The Centre has stayed the hanging. Now it must commute the sentence.

“And what if excess of love

Bewildered them till they died?”

W. B. Yeats, Easter 1916

It is a relief that the Centre has stayed the hanging of Balwant Singh Rajoana. Though I have represented many such prisoners, he is not my client. However, his case has disturbing implications for our country, our democracy and, I dare say, for our humanity.

Balwant Singh was a member of the Babbar Khalsa and a party to the assassination of Punjab Chief Minister Beant Singh. Sixteen other persons died in the blast. He was arrested in December 1995, and sentenced to death in 2006. The High Court confirmed his death sentence in October 2010 and a few days ago he was given his execution. He has spent the last 16 years in prison.

What the records say

Of all those prosecuted in this case, Balwant Singh alone confessed his guilt. He refused to contest the prosecution's charges, challenge its evidence, engage a lawyer or accept a court-appointed lawyer. Instead, he spoke from the dock and from the prison through statements to the courts and letters to the judges. His story, as reproduced in the courts' records, is extracted below.

Balwant Singh tied the belt containing the explosives on Dilawar Singh who had blown himself up while killing the chief minister. He said his conscience would not permit him to deny his role in the killing when Dilawar and others had sacrificed their lives for it. A Punjabi couplet in his handwriting was found by the police: “My comrades died in the hope that I render their pain into a song. If I keep quiet, their souls will not be at peace.”

Balwant Singh explained his actions. He described the deep wounds on the Sikh psyche caused by the despoiling of the Golden Temple by the security forces during Operation Blue Star. He spoke of the pogrom following Indira Gandhi's assassination, where Sikhs were burnt, mutilated and left for carrion, funeral rites denied, when women were dishonoured, the youth emasculated and homes burnt. He asked the Chief Justice who were the terrorists: those who did these acts or those who defended the victims? He said human beings can fight such injustice and oppression only by becoming human bombs and sacrificing themselves. Balwant Singh said the government of this country had killed its own people. He said Beant Singh had licensed fake encounter killings, abductions, and secret cremations which remained unpunished to date. Balwant Singh said he did not regret his actions. He said the government had mocked Sikh sentiments by honouring and promoting those that led this pogrom. He did not want to beg for his life, and if the consequence of his rebellion was a death sentence, he would embrace it willingly. Balwant Singh refused to appeal to the Supreme Court and instructed his friends and family not to petition the government for mercy. He also turned away social, religious and political groups wanting to petition the government. He said he wanted to live with respect and dignity and if the state wanted to kill him, he wanted to die honourably. Balwant Singh has written his will and donated his organs for the use of others.

Commute the sentence

The State and Central governments have powers to commute death sentences after their final judicial confirmation. This power, unlike judicial power, is of the widest amplitude and un-circumscribed, except that its exercise must be bona fide. Issues often alien and irrelevant to legal adjudication — morality, public good, social and policy considerations — are intrinsically germane to the exercise of the government's powers. These powers exist because in appropriate cases the strict requirements of law need to be tempered and departed from to reach a truly just outcome in the widest sense of the word. The government's powers to commute a death sentence thus operate as a national conscience.

Every citizen has a right to petition the government to commute any death sentence, since the state's power to take life emanates from the people and executions are carried out in our name. As one who opposes the death penalty on the grounds that the state should not have the right to take life, it is irrelevant whether the condemned prisoner wants to live or die. I therefore petition the government to commute Balwant Singh's death sentence.

Indeed, I find myself stricken with paralysis in the face of his compelling, courageous and principled position. Incriminating evidence against accused persons is routinely challenged by them in courts, even though many of them are actually guilty. The staunchest political beliefs wilt under the threat of a death sentence or lifelong incarceration. Balwant Singh's courage, conviction and honesty in the face of this threat mark him as one apart. That his cause is not our cause does not diminish our respect for him or mitigate our collective loss in the event of his execution.

Balwant Singh's refusal or the reluctance of any citizen or organisation to petition the state for commutation does not preclude the state from suo moto reviewing his case. The government is obliged to do so, for it, and not the courts, have the final word in such matters.

The use of the death penalty in such cases is extremely problematic and potentially divisive. Balwant Singh's case graphically illustrates a spiral of violence, revenge and reprisals. Further violence, albeit state-sanctioned, could be used to legitimise earlier violence and perpetuate the spiral. Let us show that the justice we administer is not victor's justice but one tempered by humility, compassion and humanity.

The Punjab troubles are behind us now, but the ghosts still linger. In the name of India's territorial integrity, the government used questionable methods to put down the Khalistan movement. Will executing Balwant Singh do us credit? When, as a nation, we have condoned the government's excesses, can we not now reconcile with Balwant Singh? Has not enough blood been shed? Will we remain silent in the face of yet more blood-letting to avenge an old feud? O, when may it suffice?

(The author is a lawyer practising in the Bombay High Court.)

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