Why not appoint an eminent persons group to examine in a time-bound manner whether the death penalty should continue to be on our statute book? Why not keep execution of all death penalties in abeyance till then?
Mohd. Afzal Guru, the jihadi terrorist, played a leading role in the jointattack by the Lashkar-e-Toiba (LET) and the Jaish-e-Mohammad (JEM) of Pakistanon the Indian Parliament in December, 2001. The attack was thwarted by an alertsecurity force guarding the Parliament, but not before 10 members of thesecurity force, including a lady constable, had been killed by the terrorists inan exchange of fire.
He has been found guilty by the trial court and sentenced to death. Hisconviction and sentence have been upheld by higher courts. He has exhausted alljudicial avenues for having his conviction and sentence set aside and thecompetent court has passed orders for carrying out the death sentence againsthim on October 20, 2006.
He can still appeal to the President of India, Shri Abdul Kalam, forclemency, but there is no indication so far as to whether he would. There havebeen demands from sections of the political leadership in Jammu & Kashmir(J&K) as also from civil society human rights activists for the state totake the initiative to commute the death sentence to one of life imprisonment,irrespective of whether he submits a clemency petition to the President or not.There have been demonstrations in J&K against the death sentence.
Those opposing any clemency give three arguments: First, he was responsiblefor the intentional killing of 10 members of the security forces and, hence,showing any mercy to him could demoralise the security forces bravelyconfronting the cancer of jihadi terrorism. Second, the execution of the deathsentence would deter similar terrorist attacks in future. Third, if theexecution of the Sikh security guards who assassinated Indira Gandhi and thedeath sentence passed on those who were responsible for killing Rajiv Gandhiwere justified, why should a death sentence passed against a jihadi terroristfor killing members of the security forces be projected as unjustified?
There is no reason for India to nurse any qualms over the award of the deathsentence to this terrorist and over its ultimate execution, if it materialises.More death sentences are awarded and carried out in the Islamic Ummah than inthe non-Islamic world. Death sentence is mandatory for narcotics smugglers inmany countries of the Ummah. Acts of political violence—whether they amount toterrorism or not— are often punished with the death penalty. The recentinstance of the execution of some Christians in Sulawesi in Indonesia, who wereaccused of indulging in acts of terrorism against Muslims, is an example.Appeals for clemency from the leaders of the local Christian community, thechurch and, reportedly, even the Vatican, were rejected by the Indonesiangovernment. Fear of violent demonstrations by the Christian community did notdeter the state from carrying out the death sentence.
Those in favour of the government of India taking the initiative in commutingthe death sentence to one of life imprisonment argue that his execution couldadd to the anger against the government in J&K and thereby, createdifficulties at a time when the security forces have been bringing theactivities of jihadi terrorist elements under control. This could lead to a rashof new terrorist strikes, they argue. One saw, they point out, how the award ofthe death sentence to Maqbool Butt of the Jammu and Kashmir Liberation Front (JKLF)in the early 1980s led to the kidnapping and murder of Ravi Mhatre, an Indiandiplomat posted at Birmingham, by the JKLF elements in 1983.
Certain other factors also need consideration. The assumption that deathpenalty acts as a deterrent has not been conclusively proved. Narcoticssmuggling continues to take place despite the award of dozens of death penaltyin many countries every year. In the US, which rigorously enforces the deathpenalty against those guilty of certain heinous crimes, such crimes continue totake place. Fear of death penalty has not deterred compulsive criminals fromindulging in heinous crimes. We saw a recent incident in which a 53-year-old mantook hostage some young girls studying in a US school and sexually assaultedsome of them. In terrorism-related situations, death penalties often make heroesof the terrorists in the eyes of their communities and prove counter-productive.
In January, 1993, Mir Aimal Kansi, a Pakistani national, drove to the gatesof the headquarters of the Central Intelligence Agency (CIA) in Washington andindiscriminately opened fire on the staff of the CIA arriving to work. He killedtwo officers and injured some others. During the trial, he was found guilty andsentenced to death. He was executed and his dead body returned to his tribalvillage in Pakistan. He became a local hero. A large number of people attendedhis burial function and his execution added to the tribal anger against the US.
In May, 1975, Carlos, who later became notorious and much dreaded as aninternational terrorist, shot dead two officers of the DST, the FrenchCounter-Terrorism Agency, when they entered a place in Paris where he wasstaying in order to question him and escaped to Libya. He organised anInternational Front of Leftist Revolutionaries and carried out a number ofterrorist strikes in West Europe, including France, before he was finallyarrested at Khartoum in Sudan in August 1994, by the French counter-terrorismagency.
He was tried in France and found guilty. Since there is a ban on deathpenalty in France, he was merely sentenced to a long period of imprisonment,which would keep him in jail for the rest of his life. He has been forgotten andconsigned to the dustbin of history. Had the death sentence been still in voguein France and had he been executed, he might have become a hero to at least somesections of the people, just as Kansi did.
Just as there is no conclusive evidence to show that dangerous crime in theUS has decreased due to the imposition and execution of the death penalty, thereis no conclusive evidence to show that the absence of the death penalty in theEuropean Union countries has created difficulties for their counter-terrorismagencies. Despite the absence of the death penalty, indigenous terroristorganisations in Europe have been withering away one after another— theBaader-Meinhof and the Red Army faction of Germany, the Red Brigade of Italy,the Action Directe of France etc. Even the Irish Republican Army of the UK andthe Basque separatists of Spain have been having second thoughts about resortingto terrorism.
This was partly because of the firm counter-terrorism policies of theEuropean governments which made it clear to the terrorist organisations thatterrorism will not pay and partly because of the collapse of the state-sponsorsof terrorism such as the erstwhile USSR, East Germany and Yugoslavia.
The European governments are now facing difficulty due to the increasingactivities of the jihadi terrorists as seen in Spain and the UK. Well-informedsections of public opinion and professional counter-terrorism experts areadvocating greater powers of detention, search, interrogation, surveillance etcfor the police and other agencies to enable them to deal with the jihaditerrorists, but no one is demanding the re-imposition of the death penalty. Theyfeel confident that they they can deal with the situation without the need forthe re-introduction of the death penalty.
Death penalty can be particularly counter-productive in the case of jihaditerrorist groups, which glorify acts of terrorism as acts of martyrdom. Deathsat the hands of the state—either during an encounter or a terrorist operationor after a trial— would be projected as acts of martyrdom.
There is another aspect, which needs to be considered in any debate on thisissue. The security forces are authorised by law to kill a terrorist or adangerous criminal in exercise of the right of self-defence. They can kill inorder to protect themselves or others, if they reasonably conclude that there isno other way of protecting themselves or others. A dilemma arises in respect ofexecuting an arrested and convicted terrorist because he is being executed as apunishment for what he did in the past and not due to a fear of what he may doin the future. So long as he is in custody serving a life imprisonment, he canno longer kill. What is the point in executing him?
The time has come for the government to appoint an eminent persons group toexamine in a time-bound manner the efficacy of death penalty as a means ofpreventing terrorism and other dangerous crime and suggest whether the deathpenalty should continue to be on our statute book. Till it submits its reportand a decision on it is taken by the government, the execution of all deathpenalties could be kept in abeyance.
B. Raman is Additional Secretary (retd), Cabinet Secretariat, Govt. of India,New Delhi, and, presently, Director, Institute For Topical Studies, Chennai.