Grasping the reality

Joginder Singh
A Government Minister has expressed dissatisfaction with the award of 35 years jail sentence to Pakistani-American Dawood Gilani or David Coleman Headley for his role in planning of the 26/11 Mumbai attacks, in which some American citizens had been killed.
He said “We would have wanted him to be produced in court here and face trial because we suffered the maximum damage from him. We will continue to strive to ensure that people like him are brought here and made to face trial because I believe that if the trial took place here, the punishment would have been even more serious…We are a bit disappointed with the verdict.
But we know that the judge also said that the punishment was limited because under their criminal justice system he (Headley) was entitled to enter into a plea bargain and evade death penalty and extradition,”
The Honourable Minister being a lawyer should know fully well that we have no law in our country against terrorism and even if a terrorist makes confession before a Police Officer, it is not admissible in the court of law. A terrorist can attack, make a confession and still get away because nobody wants to be involved with the Court cases, as a witness. (Current Pendency 3.32 Crores and less than 14000 judges in position). It takes ages to get justice. Mumbai blast cases of 1993 were decided after nearly 15 years in 2008. So is the lot of cases all States in India.
There are certain types of crimes for which it is impossible to get any independent evidence but only the Statement of the accused. This category includes terrorism or dacoity or Naxalism or Maoist killings or murder in the night, ( Remember Bhanwari Devi. Madhumita murder to conceal the sex escapade of Politicians) rape or even for fatal road accidents. When the British framed laws in 1863 they were meant only for sustaining their rule in India. At the same time, they took care to ensure that only the Britishers occupied the position of Judges or Police Officers or even Traffic Sergeants that people accused of treason were not let off.
Even Mahatma Gandhi was sentenced to imprisonment for waging war against India in which his own writings were produced. The Supreme Court itself has said that the justice is judge centric and it is right to view the gravity of crime differently.
Rajiv Gandhi, the former Prime Minister was killed in 1991.The Madras High Court’s order in November, 2011 stayed the execution of former prime Gandhi’s three killers The court also asked the government to explain why it took 11 years for the president to reject the trio’s mercy pleas, as the then President of India rejected them in early August, 2011.
The Tamil Nadu assembly then passed a unanimous resolution requesting the President to reconsider her decision. Politicians in Punjab and J&K have made similar demands, for getting the death sentence of some of their convicts commuted.
Till now that is nearly 22 years after the assassination of Rajiv Gandhi, the death sentence on the killers has not been carried out.
More than 105 people in India were sentenced to death in 2010, but not even one, has been executed so far as, human rights watchdog Amnesty International says.
The Supreme Court in its wisdom which has to be accepted by the entire Government and Nation as what it says is the law for the country refused to impose the capital punishment in the Graham Staines, Jessica Lall and Priyadarshini Mattoo murder cases on the ground that these did not fall within the category of “rarest of rare.”
Even a two judge bench of the Supreme Court said, some time ago, it was time to revisit jurisprudence behind imposition of death penalty.
The Apex court asked the Union government why provisions in some laws mandating compulsory death penalty as punishment be not struck down as unconstitutional.
The question arose in the argument the Centre’s appeal against a Bombay high court judgment diluting the mandatory death penalty prescribed under section 31A of Narcotics aw Psychotropic Substances (NDPS) Act for repeat offenders trading in huge quantities of contraband.
Though the Union Government’s appeal challenged the Bombay HC’s decision to read down Section 31A to provide the concerned judge with the discretion of imposing life sentence a Supreme Court bench decided to take suo moto notice of other similar provisions in some laws warranting mandatory imposition of death penalty. Expressing its view on statutory provisions mandating compulsory capital punishment the bench said prima facie it appeared to be violative of Article 21 (right to life) and Article 14 (non-discrimination/equality).
“Instead of declaring Section 31A as unconstitutional we accede to the alternative argument of the Union Government that the said provision be construed as directory by reading down the expression ‘shall be punishable with death’ as ‘may he punishable with death’ in relation to the offences covered under Section 31A of the Act,” the HC had said.
It said: “The mandatory death penalty provided in Section 31A is in the nature of minimum sentence in respect of repeat offenders of specified activities and for offences involving huge quantities of specified categories of nar-cotic drugs.
Would it still be open for the court to reduce the minimum sentence provided for by the legislature?” the Union Government asked and said offences falling under NDPS Act had been held by the apex court to be of such nature which had deleterious effect and deadly impact on the society as a whole.
A murder is a murder, however ghastly or non ghastly it may be. Most of the time, it is the result of well planned conspiracy. As it is the conviction rate of murders is one of the poorest in India. As per the information available in answer to an RTI application.
There have been nearly 1.27 lakh murders between 2005 and 2009 in the country. Yet, just 44,601 people have been convicted for them in the last five years, with a conviction rate of 36.2%, As it is almost only one out of three gets convicted and even for them, there is a demand that they should not meet their desserts and death penalty be abolished. It is accepted by all countries that if criminals are let off easily, the society will impose vigilante justice, which has happened more than once in India.
There is no fear of law in India and people will feel that they can get away with literally not only murder, as the above facts show, but with any crime.
Mumbai High Court observed on 12th December, 2012.
“What is happening? Something is seriously wrong. There was a time when the presence of a single constable was enough to deter crime. Now nobody is afraid.”
If Gilani had been expedited to India, chances are that he might have been discharged in the firsthearing. At least in USA, he would never see the outside the jail, unlike India, where under every plausible excuse or Republic Day or Independence Day or Gandhi Jayanti or for so called behaviour, the Government remits the punishment.
It is time to remind the Government, that the people’s good should be the highest law. Our country men, also need to be reminded that, here are not enough jails, not enough policemen, not even enough courts, too enforce a law not supported by them. Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence. Government should heed the advice of Aristotle who once said that “Even when laws have been written down, they ought not always to remain unaltered”.

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