The death penalty for 26 people found guilty in the Rajiv Gandhi assassination case was bound to provoke mixed reactions among jurists and human rights activists. An informed debate will be all to the good and the wider it ranges over the issue of capital punishment and the law which provides for it, the better. All laws and certainly a law as drastic as the one on the death penalty can benefit from periodic public airing of the purposes behind them and their effectiveness. There are those who are opposed to capital punishment on religious-moral grounds. It has always been a strong argument that human beings should not play god by taking away another's life. The humanitarianism case is based on the belief that criminals should have the chance to make reparation and can make it in full by serving their time in jail. There is the fallibility of the legal process to consider as well as the deterrent effect of capital punishment. But one does not have to be an abolitionist to ask in what circumstances the maximumpenalty is justified and when it is not.Indian law recognises the death penalty for murder and conspiracy to murder, charges on which the 26 were found guilty by the designated court in Chennai. At the same time, judicial precedent says that such a penalty be used only in the ``rarest of rare'' circumstances. This is interpreted to mean the nature of the crime and the degree of motivation must be taken into account. On all those counts, the sentences for the 26 would seem to be well deserved. Here was a massively organised conspiracy to assassinate a former prime minister, carried out in the most brutal and cold-blooded fashion, with 16 others killed at the same time, and intended to have a political outcome. The deterrent argument works here too in that all those who engage in similar acts of terrorism must learn that the law will extract the maximum price.
After all this is said and accepted there is still the shadow of Kehar Singh. To deal with it calls for scrupulous examination of the facts withoutregard to the political nature of the crime, the public mood or extraneous factors such as the continuing threat from the LTTE. When Kehar Singh was given the death sentence in 1989 for his part in the conspiracy to assassinate Indira Gandhi, many able jurists argued that the extent of his complicity had not been proved beyond all shadow of doubt. Others disagreed. Singh was hanged to death. What the controversy has left for subsequent trials to resolve is what degree of involvement in a conspiracy should invite capital punishment. The Chennai trials have not shut the door on this question. Some of the 26 convicted played key roles in the conspiracy to assassinate Rajiv Gandhi, others relatively subsidiary ones. The common sense view would be that there are distinctions to be made between aiding and abetting murder to a greater or lesser degree. Whether these are distinctions without a difference will be decided when appeals go to the Supreme Court.
Copyright © 1998 Indian Express Newspapers (Bombay) Ltd.
