People’s Union for Democratic Rights strongly opposes the impending death penalty for gang rape and murder that the four convicts in the Nirbhaya case, Akshay, Mukesh, Pawan and Vinay are awaiting. It is widely known and well established that death penalty is not a deterrent; instead it is an abhorrent and retributive form of punishment which is ethically questionable in a civilized society. Sadly, the current clamour for retribution has overtaken the larger issues that are at stake in the context of death penalty.
The date of the execution set for 22nd January was extended to 1st February following Mukesh’s mercy petition, since rejected. The unseemly political battles which have erupted after the Centre accused the Delhi Government of delaying the hanging of the four accused, point to the most objectionable politics that have emerged in the wake of the convicts filing their mercy and other petitions. If the crime committed by the accused in 2012 is said to have shaken the collective conscience of society, then the present politics surrounding the punishment and the summary dismissal of permissible legal processes and rights of the accused, definitely shakes our collective faith in the political leadership and the judiciary. With the impending Delhi Elections and the political environment described above, which the Courts are surely not oblivious of, it is only proper that, if not commutation, any Order for execution should have been kept in abeyance till at least the end of polling.
The role of the Delhi High Court and the Supreme Court has been extremely unconscionable. The High Court not only heard Pawan’s petition against the order rejecting his plea of juvenility, in the absence of his attorney, but also fined and passed strictures against the defence attorney for adopting 'delaying tactics'. It needs to be noted that all that Pawan pleaded was juvenility based on primary school records which as per law must be given primacy over any other record. On 20th January the Supreme Court rejected Pawan’s special leave petition and earlier Mukesh’s curative petition within a day each. Amidst the retributive hysteria ratcheted up by the media, the political leadership and reinforced by the judiciary over the delay in execution, remembering Dhananjoy Chatterjee who was executed for the 1990 rape and murder of a young girl can be instructive. The widespread demand for executing Chatterjee, including from influential figures in public life ensured that his trial and appeals completed in record time and his mercy petition rejected by the President in 1994. But then the Government and the Prosecution forgot to vacate the stay Dhananjoy had obtained in 1994, and when it woke up ten years later in 2004—time Dhananjoy had spent on death row, a large part in solitary confinement—summarily executed him.
Historically, hangings have served political goals of ruling regimes in sensitive times and the executions of Ajmal Kasab, Afzal Guru and Yakub Memon which happened in quick succession (2012, 2013, 2015) illustrate this need especially since they happened after a decade-long moratorium on the death penalty. It cannot be reiterated enough that the crime against Nirbhaya was horrifically unspeakable and that the accused deserve exemplary punishment. But what we are witnessing is the political nature of death penalty supposedly being done in the name of curbing crimes against women. The impending hanging of the four convicts today serves the political goals of the ruling regime, of creating a spectacle of lawless state violence being unfurled to serve the BJP government’s self-projection as being tough on crimes against women.
Evidence from across the globe testifies to the failure of the death penalty to act as a deterrent to crime. Sexual crimes against women and resultant punishments are woven in the social and political fabric of society, as illustrated in the wilfully botched up investigation in the abduction, gang-rape and murder of an eight year old in Kathua in 2018 as well as in the communal and political support that the perpetrators enjoyed. Addressing sexual violence needs measures that ensure accountability of not only perpetrators but also of the state and other actors often complicit in creating impunity. Hanging four convicts in such a situation is a bizarre form of retributive justice that needs to be opposed and rejected.
The four convicted have been in jail for over 7 years. They and the crime committed by them has been condemned by everybody from people at large, to the political parties, the legal community and the courts. At the time of awarding them punishment and deciding on mercy, what is on trial is not the actions of the convicts but those of a sovereign democratic republic and its ability to be humane and forgiving. PUDR therefore hopes for the commutation of the four death penalties to life imprisonment, and the final removal of death penalty from the statute books.
Radhika Chitkara and Vikas Kumar