On November 20, 2012, India was one of 39 countries that voted against the U.N. General Assembly draft resolution, which called for the abolition of the death penalty. A day later, Ajmal Kasab was hanged after being pronounced guilty of perpetrating terrorist attacks on Mumbai on November 26, 2008. Afzal Guru was executed on February 9, 2013. Although there is a world of difference between the two cases, there are questions that arise in common in relation to the death penalty.
The eschewing of the death penalty is not a matter of judicial reason alone. It is not the prerogative of courts. In fact, the writ of the courts is limited. It is essentially a matter of politics. On what basis did the government vote to retain the death penalty? On what basis did the former President turn down a mercy petition? On what basis does the UPA government push for the rejection of mercy petitions by the President?
These questions have a context that we have lost sight of. Sonia Gandhi, the Chairperson of UPA, has gone on record in a letter to President Narayanan arguing strongly in favour of clemency for those convicted in the Rajiv Gandhi assassination case, and she also spoke on behalf of both her children, one of whom is now a Member of Parliament representing the Congress Party, and an acknowledged leader. The pain and loss was deeply personal. But it was also political. It concerned the assassination of a former Prime Minister and leader of the Opposition. In taking this principled stand, Sonia Gandhi was also putting the practice of politics and the public good above the personal loss she and her children suffered. In doing this, she drew a radical convergence between the personal and the political that should have become the guiding principle for the entire Indian parliament’s political stand on the death penalty. In what is a deep and unexplainable contradiction, the government led by her party has undermined her own stand on this matter. Was there a discussion? What is the justification for this contradiction?
The loss of memory of deliberative politics has tragic consequences in our time. Memory is not honoured or kept alive by taking life “lawfully” (or “justly” even if unlawfully). There is no justice in the death penalty. We need today, more than ever, to remember that there is an irreversible principle Sonia Gandhi and her children established in the matter of the death penalty — a principle that separates personal anger and grief from the idea of justice. It is this principle that should guide parliamentary and governmental deliberations on the death penalty — and indeed also guide presidential deliberations on clemency, thereby setting new measures for the practice of politics — and indeed governance in India. Its repeated negation in letter and spirit is a very worrying sign of our times.
(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad.)