New Delhi: The Law Commission’s recent report recommending the abolition of the death penalty except for cases related to terror and ‘waging war’ ignores a critical fact – that to fight terror, it might be more practical to do away with the death penalty. The Law Commission was responding to a Supreme Court suggestion in the case of Santosh Kumar Satishbhushan Bariyar vs Maharashtra and Shankar Kisanrao Khade vs Maharashtra, that it revisit the issue of death penalty in India to “allow for an up-to-date and informed discussion and debate on the subject.”
As the Asian Centre for Human Rights (ACHR) has noted in its own, simultaneously released, report “India: Not Safe for Extradition of those facing Death Penalty?”, countries which have abolished capital punishment are unwilling to extradite suspects who might face the death penalty in India. If India is indeed “serious about widening its fight against terrorism,” it must abolish the death penalty for terror cases too.
140 countries have abolished the death penalty — 98 countries for all crimes, 7 countries for ordinary crimes, and 35 who are abolitionist in practice. India is in the minority of 59 countries who still retain the death penalty.
158 countries have also ratified the UN Convention Against Torture, Article 3 of which prohibits return (‘refouler’) or extradition of a person to another state where there are substantial grounds for believing that he/she would be in danger of being tortured. The European Union (EU), Canada, Mexico, South Africa and Philippines all seek assurances that the death penalty shall not be carried out in the case of extradition of those charged with offences carrying the death sentence.
Death sentence as obstacle for CBI
As of July 31, 2015, the Central Bureau of Investigation (CBI) had issued red corner notices on 650 suspects or accused persons, who were required either to face prosecution or to serve a penal sentence. Of these, says the ACHR report, 192 were charged under laws that provide the death penalty as punishment: “These include crimes under the Arms Act, Indian Penal Code, the Maharashtra Control of Organized Crimes Act, the Narcotic Drugs and Psychotropic Substances Act, the Unlawful Activities Prevention Act, the Terrorist and Disruptive Activities (Prevention) Act and the Prevention of Terrorism Act of 2002. Out of 192 wanted persons, 124 are wanted for committing terrorist offences.”
ACHR claims that the execution of three terror convicts — Ajmal Kasab , Afzal Guru and Yakub Abdul Razak Memon — in the last three years has seriously impacted India’s requests for extradition from a number of countries which have abolished the death penalty.
The EU has been under intense pressure not to send any more potential death penalty cases to India, ever since Germany deported Devender Pal Singh Bhullar who was promptly arrested and later sentenced to hang. The ACHR report notes that “(t)he EU is unlikely to extradite any terror suspect without guarantees from the Government of India that death sentence shall not be imposed on the deportees. Following the death sentence on Bhullar, the jurisprudence against deportation without guarantees for non-imposition of death sentences has further been strengthened across Europe. India had to give assurance to Portugal that Abu Salem shall not be given death sentence for his deportation to India.”
Speaking on the issue, Suhas Chakma, Coordinator of the National Campaign for Abolition of Death Penalty, pointed out that if the Indian government could assure Portugal they would not hang Abu Salem for the same offences for which they had hanged Yakub Memon, there was no reason to retain the death penalty. “It is the fear of the law, not necessarily death penalty, that can act as deterrent,” he said.
The torture impediment
As further evidence of the illogicality of hanging if the aim is really to fight terror, the ACHR report cites the case of Mohammed Hanif Umerji Patel alias Tiger Hanif, an alleged associate of the underworld don Dawood Ibrahim.
Tiger Hanif is wanted in India for his role in two terror attacks in Surat city of Gujarat in January and April 1993. He was arrested by the British authorities acting on an Interpol warrant in February 2010 from Bolton, part of Greater Manchester. Subsequently, in May 2012, a British Court ordered his extradition, but he went on appeal claiming “a real risk of torture” if sent back. In May this year, Union Minister of State for Home Haribhai Parathibhai Chaudhary indicated that India had again requested the British authorities to accelerate Hanif’s extradition. However, the recent hanging of Yakub Memon is likely to set back this process.
Similarly, India has been unable to get the prime accused in the Purulia arms drop case, Kim Davy, since it has not ratified the United Nations Convention Against Torture. While the Danish government had in April 2010 decided to send Davy to India, the Danish High Court ruled against the extradition on the grounds that he could face mistreatment in Indian prisons.
The ACHR report describes a public interest litigation filed before the Kolkata High Court, which argues that if the Indian Government had ratified the UN Convention against Torture, it might have been possible to bring Davy to justice to India. In September 2011, the Kolkata High Court issued notices to the Ministry of Home Affairs and the CBI on this. ACHR notes that “the petition appears to have been lost in the Indian judicial system.” India’s only reaction has been to downgrade its relations with Denmark.
One might well ask — if you can’t even catch them, what’s the point of insisting on hanging them? Whether the government disregards the Law Commission’s advice or accepts it, the retention of capital punishment on the statute books is likely to remain an obstacle for the long arm of Indian law getting hold of terror suspects if they manage to flee the country.