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Association of Retired Senior IPS Officers (ARSIPSO)

This is with reference to my letter No. ARSIPSO/GS-BSD-4/2023 dated. 10/08/2023 on the 4th B.S. Das Memorial Lecture, which had to be rescheduled for unavoidable reasons.

The 4th B.S.Das Memorial Lecture to be delivered by Shri Anil Kumar Sinha, IAS (Retd.), on the subject Disaster Management: Creating Safer Communities, has now been rescheduled for October 14, 2023 as per the following:

Conference Room No. 2, India International Centre, Max Mueller Marg, New Delhi, October 14, 2023 (Saturday)

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Afjal Guru's hanging has evoked widespread public support. Political parties across the board have supported the action of the government. The main opposition party, the BJP, however, has also criticized the government for delayed action and held that the government had to yield to the mounting public pressure for Guru’s hanging. The UPA claims that Guru’s execution was the culmination of a legal judicial process and hopes that it will send a tough message to all that the government will not hesitate to firmly deal with terrorist violence. The public opinion in the country has been overwhelmingly in favour of the execution and viewed it as a well-deserved retribution for a person involved in the conspiracy to attack the Parliament on December 13, 2001.

Guru was a member of the terrorist outfit Jaish-e-Mohammad and was sentenced to death by Delhi High Court in 2002 and the decision was upheld by the Supreme Court in 2003, again in 2007. It is unfortunate that the execution was needlessly kept pending by the government because of various political considerations. Indeed, prompt action would have avoided some of the controversies that have now surfaced. The usage of prisoners as pawns for furthering government’s policy by overlooking the dehumanizing effect of long imprisonment is unfortunate and unaccepted. Indeed, it will be a good idea to narrow the scope the executive discretion in the matter and have a time-out clause in the mercy petition so that they do not remain pending unnecessarily.

The controversy surrounding Afjal execution should also be an occasion to review appropriateness of death penalty and its implication. Since death penalty is carried out in the name of the nation, it is necessary to make people aware of what death penalty means and how its violates fundamental human rights. The constitutionality of death penalty was upheld by the Supreme Court in Bacchan Singh’s case in 1982. The apex court, however, laid down the principle that only in “rarest of rare” cases of exceptional depravity and brutality death penalty should be awarded. However, Justice Bagawati in his dissenting judgment in the case held that the death sentence is discriminatory and has a certain “class complexion and caste bias”. Though made in a dissenting judgment, these remarks have been reiterated in subsequent unanimous judgments by the Supreme Court in Santosh Kumar Baryar (2009) and Alok Dutta in 2007. After examining cases over the past two decades the court admitted the failure on its part to evolve a uniform sentencing policy in capital punishment cases. A study of Supreme Court’s judgments from 1950 to 2006 (Lethal Lottery: death penalty in India) by Amnesty International and People’s Union of Civil Liberties (PUCL) shows that the cases in which death penalty was imposed are often indistinguishable from those in which it was commuted.

Further, the justification of death penalty on the ground that it will have a deterrent effect on crime is without any empirical support. It is not the harshness or severity of death penalty that acts as a deterrent. A life sentence of 20 years or more without parole would act as equally as a deterrent as death penalty, provided the killer feels that the crime will not go unpunished.

Further, today the global trend is towards the abolition of death penalty. More than two/thirds of the countries of the world have abolished death penalty in law and in practice. Total number of abolitionists is 139 while total number of retentionists is 58. Thus, by upholding death penalty, India remains on the wrong side of history. Before the coming of democracy, South Africa was one of the world’s greatest executioners. However, the South African court in a recent ruling declared death penalty to be “cruel, inhuman and degrading punishment and hence unconstitutional”. India voted against the resolution of UN General Assembly (December 21, 2010) seeking moratorium on the use of death penalty.

Another important pro-death penalty is retribution. It is argued that families of homicidal victims need retributive satisfaction. There are press reports highlighting satisfaction of the family members of security personnel killed in Parliament attack at the execution of Afjal Guru. To sell policies of tough law and order under the pretext of doing justice to the victims requires portrayal of the victims as vengeful and retributive. However, empirical studies have shown that majority of the victims require recovery, redress and prevention of further victimization and not the blood of the accused persons. Indeed, the question of death penalty is a fundamental human rights issue and should be viewed as such. The gallows stands for irreverence for life.

The manner of secretive hanging of Afjal Guru also varies concerning and shows the government in a poor light. The government perhaps wanted to keep Guru’s execution vide wraps with a view to avoiding any last minute legal challenge of last minute reprisal such as granted by the Madras High Court convicts in Rajiv Gandhi’s assassination case.

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