Above: Rajoana being brought to hospital in Patiala/Photo: sikh24.com

The president’s commutation of death sentence given to Balwant Singh Rajoana, convicted for Punjab CM Beant Singh’s assassination, stirs the debate on how the State should consider such petitions

By Venkatasubramanian

How does the president of India decide the mercy petitions submitted to him by death row convicts? Article 72 of the Constitution which enables the president to consider such petitions, merely states that he shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the sentence is one of death. The president’s power under Article 72 is unique in that it is uninfluenced by the finding of guilt of an accused by a court of law.

What factors influence a president to commute the death sentence of a convict, after the Supreme Court confirms it, exhausting all the legal remedies available to review and reverse it? Article 72 enables a president to exercise his moral authority over the judicial confirmation of guilt of an accused at the appellate stage. It also gives the president the powers to make a fresh appraisal of the materials which enabled various judicial forums to find the accused guilty, and deserving of the death penalty, considering the heinous nature of the offence committed. This power, unlike judicial power, in the words of an expert, is of the “wildest amplitude and uncircumscribed,” except that its exercise must be bona fide.

Although the president is bound by the advice of the council of ministers to reject or accept a mercy petition, he is also expected to ask the Government to reconsider such advice, in the light of his own opinion on whether in that case execution of the death sentence would be warranted. In some cases, concerns about the culpability of the mercy petitioner in the offence he was found to have committed could trigger a rethink.

In others, the socio-political milieu in which the offence was committed could justify reconsideration of the extreme penalty as being disproportionate. In yet other instances, the president may find justification in granting pardon to a convict, just as a gesture of goodwill, or to provide a healing touch to a community which may feel aggrieved that the convict has suffered a disproportionate punishment in the guise of waiting for the gallows all these years. The Constitution envisages such exceptions because the strict requirements of law would need to be tempered to reach a truly just outcome, howsoever one chooses to interpret it. The president exercises his power under Article 72 avowedly on behalf of the people, and therefore, his reasons for accepting or rejecting a mercy petition must be transparent, so as to make sense to the people at large.

Thus when the Union ministry of home affairs decided last month to commute the death sentence of Balwant Singh Rajoana, the convicted killer of  Punjab Chief Minister Beant Singh, to life imprisonment, as a “humanitarian gesture” ahead of the 550th birth anniversary celebrations of Sikhism founder Guru Nanak, it was more than symbolism which guided its decision.

An explosion, triggered by terrorists outside the Civil Secretariat complex in Chandigarh on August 31, 1995, killed Chief Minister Beant Singh and 16 others, including three of his commandos in his inner security ring. It was established that Rajoana was a member of a terrorist outfit that went by the name of Babbar Khalsa and had conspired in the attack.

He was supposed to have been a back-up option in case the original plans failed. Rajoana, an accused in the case, was arrested in December 1995 and sentenced to death in 2006. The Punjab and Haryana High Court confirmed his death sentence in October 2010. So far, he has spent a total of 24 years in prison.

Of all the accused in the case, Rajoana alone confessed his guilt. He refused to engage a lawyer and did not even avail of legal aid through an appointed lawyer. In his confession recorded in January 1996, he claimed to have associated himself with the plot in order to avenge the desecration of the Golden Temple by the security forces during Operation Blue Star, which later resulted in the killing of Prime Minister Indira Gandhi, and the anti-Sikh pogrom in Delhi and elsewhere in 1984. He admitted to tying the belt containing the explosives on Dilawar Singh, the human bomb who blew himself up to assassinate Beant Singh. He said he could not deny his role when Dilawar and others had sacrificed their lives for it. Rajoana accused Beant Singh of having acquiesced in fake encounter killings, abductions and secret cremations by the security forces, and even of honouring and promoting the guilty.

More important, Rajoana did not appeal to the Supreme Court against the High Court’s confirmation of his death sentence. Nor did he permit anyone to submit a mercy petition on his behalf to the governor or the president. Rajoana also wrote his will, and reportedly donated his organs.

Rajoana’s honesty in admitting his guilt and refusing to defend himself may still not earn him enough sympathisers. The State, while deciding to commute his death sentence into life imprisonment, might not have considered his honesty as the sufficient reason for its leniency, as it could set a wrong precedent.

Instead, the present government at the centre appears to be sending a subtle message by its decision on Rajoana that the then Congress government had adopted questionable methods to stamp out militancy in Punjab, and Rajoana was a result of that flawed pursuit with scant regard for human rights.

The centre has also decided to release eight Sikh prisoners, convicted under the Terrorist and Disruptive Activities (Prevention) Act (TADA), in contravention of the official policy. There were widespread protests not just in India but abroad too over the death sentence which was scheduled for March 2012, but a stay was obtained on a plea filed by the Shiromani Akali Dal leaders Parkash Singh Badal and his son Sukhbir, and the SGPC. Then, in August last year, the Badals and SGPC chief Gobind Singh Longowal met the then Home Minister Rajnath Singh, demanding that Rajoana’s death sentence be commuted to life imprisonment.

While the decision on Rajoana has indeed sent a message of compassion and of healing touch to the Sikh psyche across the country, the feeling whether the centre does so selectively persists.

President Ram Nath Kovind, since assuming office in July 2017, has so far rejected the mercy petition of one death row convict, Jagat Rai, on April 23 last year. The accused in this case were found guilty of murdering a family of six  for non-withdrawal of a complaint filed by an informant over theft of his buffalo at Raghopur in Vaishali district, Bihar. The deceased included the informant’s wife and their five children. The Supreme Court found two of the accused to be deserving of no sympathy, in view of the heinous nature of their crime, and their complicity in it. The socio-economic factors behind this gruesome murder, however, could justify a rethink by the State, as execution of the death penalty by itself would not bring closure to the underlying roots of conflict in rural India.

A recent study carried out by the Death Penalty Research Project (DPRP) of the National Law University, Delhi, has revealed that 74.1 percent of the death row prisoners are economically vulnerable, according to their occupation and landholding. Amongst the states with 10 or more prisoners sentenced to death, Kerala had the highest proportion of economically vulnerable prisoners with 14 out of 15 prisoners falling in this category. Other states which had 75 percent or more prisoners sentenced to death belonging to the economically vulnerable category were Bihar, Chhattisgarh, Delhi, Gujarat, Jharkhand, Karnataka and Maharashtra.

Amongst the states with a substantial number of prisoners on death row, Bihar (35.3 percent) and Karnataka (34.1 percent) had the highest proportion of prisoners who had never attended school.

While the national ratio for prisoners sentenced to death who did not complete their secondary education is 62 percent, states like Gujarat, Kerala, Jharkhand, Maharashtra, Delhi and Uttar Pradesh had a large population of prisoners under this category.

The study also disclosed that 76 per cent of prisoners sentenced to death belong to backward classes and religious minorities. “While the purpose is certainly not to suggest any causal connection or direct discrimination, disparate impact of death penalty on marginalised and vulnerable groups must find a prominent place in the conversation on the death penalty,” the report concluded.

 

The proportion of Scheduled Castes/Scheduled Tribes amongst all prisoners sentenced to death in India is 24.5 percent, the study further revealed. This proportion is significantly higher in Maharashtra, Karnataka, Madhya Pradesh, Bihar, Jharkhand and Delhi, amongst the states with 10 or more prisoners sentenced to death. Religious minorities comprised a disproportionate share of the prisoners sentenced to death in Gujarat, Kerala and Karnataka, the DPRP report found.

Prisoners on death row are treated differently from the moment they are sentenced to death by the trial courts, despite the bar against their execution until confirmation of death sentence by the High Court, and during the pendency of their appeals in the Supreme Court, and their mercy petitions with the governor or the president. “In many prisons, these differences have been extended to prohibition on work, lack of interaction with general prison population or prohibition from participating in prison activities,” the study added.

The commutation of the death sentence awarded to Rajoana to life imprisonment should hopefully lead to a review of the utility of the death penalty as a form of punishment in our criminal justice system.

It is neither shown to have deterred crime, nor considered an adequate punishment to render effective justice even in the rarest of rare cases.

Justification for the death penalty as an answer for society’s cry for justice, and its commutation purportedly to bring about social peace are inconsistent with each other.