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Aug 07, 2009 at 04:08am IST

Capital punishment no deterrent for terror

New Delhi: Six years after the twin blasts at Gateway of India and Zaveri Bazaar killed 54 people, a special POTA court in Mumbai sentenced the three convicts to death on Thursday, with the prosecution calling it the rarest of rare cases.

So is death penalty an effective deterrent against terror? CNN-IBN debated the issue with expert lawyers Harish Salve and Kamini Jaiswal on India at 9.

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CNN-IBN: Is capital punishment the ultimate deterrent against terror? What does it mean for the Ajmal Kasab case? Mr Salve, a clear road ahead has been set by the judge when he says that a case involving terror where the accused virtually admits his terror befits the rarest of rare and must get the death penalty?

Harish Salve: Oh, absolutely, absolutely. Society has always punished waging war on state and high treason with death and I think, in current times if any kind of punishment is a deterrent then it is the death penalty. Going by news reports, I believe one of these fellows appealed that he would not mind 50 years in jail as long as he is not given death penalty. Even conceptually, keeping these people in jail has proven to be a hazardous exercise. Look at it any which way, death penalty is the appropriate sentence.

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CNN-IBN: But is it a deterrent? Given the spate of terror attacks that have taken place, do you believe that handing over the death penalty will become the ultimate deterrent?

Harish Salve: Well, it might not deter somebody who is incapable of being deterred. You know, there are religious fanatics who are not going to be deterred by anything. So, you can't judge it by those people. I call them the lunatic fringe who are not going to be affected by anything. But for the wobbling, middle-of-the-road who are toying with the idea, the very fact that you would definitely get the death penalty if you are caught would to an extent be deterred if some penalty is a deterrent.

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CNN-IBN: The death penalty, many would say is pointless where you have a number of people who are willing to commit suicide and to kill others?

Harish Salve: Yes, but the point is that any kind of punishment for these kind of people would be pointless. So I don't understand this logic. When a state has been attacked by people and they have unleashed mayhem and murder, the state must respond appropriately. The state is prosecuting in the name of the people of India. They must be punished.

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CNN-IBN: Kamini Jaiswal, do you now believe that it is now very clear that death is the only deterrent for someone who is committing an act of terror? What does this mean for the other cases which are waiting, whether it is Afzal Guru or Ajmal Kasab?

Kamini Jaiswal: See, there are two things. One is that I do not believe that a death sentence is a deterrent for a terrorist who has come out and he has put everything at stake because his mission is to do something. He does not care what the end result is. Just like Kasab has confessed to his crimes, he would be happy if he gets a death sentence because these people are indoctrinated with the belief that if you kill yourself in the name of religion, there will be so many angels waiting for you and you will reach Heaven. You are doing it in the name of God. How can you expect the death sentence to be a deterrent for such people? That is their ultimate goal.

Harish Salve: I do not believe that is true. This requires, perhaps a degree of psychiatric research. I feel that it is all very well in the heat of the moment when you are all charged up and you are shoved ahead and then you go ahead and fight. But, now when you are under trial and the moment has passed away and you are in completely different environment. Now, I am sure he is going to be bothered by a death penalty. Look at this person involved in the Mumbai blasts case. Surely, he knew he would get a death penalty if he was caught. He was also willing to die for the cause. Yet, he is now begging for 50 years in jail instead of the death penalty.

CNN-IBN: Mr Salve, would you also say that the death penalty should also be extended to people who are accused of furthering or financing terrorist activities? Isn't that a part of the same equation?

Harish Salve: Absolutely! Absolutely! See, ultimately what is happening is that we are punishing only the foot soldiers. The real people who should be given the death penalty are the ones who sit at the top and who further their politics, be it religious politics or communal politics. The people who further their politics using these foot soldiers are the first people who should be given the death politics.

CNN-IBN: That's one part of it. Kamini Jaiswal, when you argue against the death politics and say that it will not be a deterrent, the bottomline at the end of the day is that they will go through a long judicial process. It will take 15 years and then appeal in a mercy petition. It breeds cynicism and frustration.

Kamini Jaiswal: No! Please have a proper judicial system which will finish trial within six months, finish appeal in another six months and not club up some 23 incidents and try and do one trial, as it happened in the Mumbai blasts case.

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CNN-IBN: So, are you saying we must have fast track courts?

Kamini Jaiswal: Have fast track courts, have proper investigations. Have a quick appeal.

CNN-IBN: But Madam, you cannot avoid the fact that even this case will go through the High court, then it could go to the Supreme Court and then a mercy petition which could take 20 years.

Kamini Jaiswal: Yes, yes! It has to. The constitution provides for it. The legal system provides for it. No body can curtail that right of any accused. Do you mean to say that our investigation agencies are so fool-proof and so unbiased that once they investigate the case, and they say X, Y and Z is guilty hang him, why put him through trial? Can we have such faith in our police?

CNN-IBN: Having said that, we do have people who have been given the death penalty but the Government doesn't seem to be taking a decision on them and the legal process is all staggered and they remain in jail forever. Taking Rajdeep's point forward, it does lead to a bit of cynicism that you eventually never get justice.

Kamini Jaiswal: I agree. Both sides do not get justice. It's not just the victim. It is also the accused. You put a man behind the bars on the death row, you keep him there for twenty years and do you know what a death cell is like? Suppose he does get mercy afterwards or supposing after having been through the process of appeal that has lasted for twelve years, the death sentence is set aside; can you give back those twenty years to him?

CNN-IBN: Mr Salve, would you want to respond to that? Some would agree, because at the end of the day, like Mr Chidambaram told CNN-IBN the other day, spending twenty years on the death row can be worse than the death penalty per se?

Harish Salve: Well, I really do not know if that is true, because that is a matter for psychiatric research and what is true for one may not be true for another. Let me respond to what Kamini said. Kamini is absolutely correct as far as the normal trial process is concerned. We cannot sacrifice the safeguards in our criminal justice systems, only because the way we run our criminal justice system is so incompetent. The trials which should take three months take three years or five years. You are saying that this will go to the High Court. Nothing prevents the High Court from dealing with the appeal in the next three months. And if it comes to the Supreme Court, nothing prevents the Supreme Court from dealing with it in the next three months. If we want to do it, we can do it. It's a question of how seriously you take it. The saddest thing is the way is the way the Central Government is doing. They are sitting on the Afzal Guru mercy-plea. Say yes or say no. If you think it is a case of mercy, (though I do not think so) say so and if you think that it is not a case of mercy say so. That's one answer.

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CNN-IBN: Are you saying that the judicial system right down the line either needs an amendment? Special courts are there especially for acts like this, like the 2003 blasts and you create a system which is fast-track.

Harish Salve: You do not need special courts, it happens all the time. Supreme Court expedites cases and says please hear this trial from day to day. You do not need special court. You just request a special judge, spare a judge and tell him to hear the case day to day and finsh it off.

CNN-IBN: Sir, but that did not happen in the 1993 Mumbai blasts case. You can have day to day trials and even those can drag on for a long time.

Harish Salve: See, the trouble then is that we have A bit of overkill in our system. You have clubbed 100 cases and this is one procedural amendment we have to bring and plus we need a bit of robust judging. What happens is every one of those 100 accused say. I have a complete right to cross examine the witness from start to finish. And to deal with this you need a tough judge and I think the time has come to reconsider reinstating the original site of the High Court for certain serious crimes, where you have a senior High Court judge who will control proceedings. Today what happens in the Sessions court? I have myself been a special public prosecutor in the Ansal's trial. How long did it take? After I finished submissions, each of the accused said, "We have the full right to argue." and the Sessions judge said, alright go on. It is a question of Court management.

CNN-IBN: We know capital punishment is for the rarest of rare cases. Is it time to bring terror in to that ambit and say it is rarest of rare?

Kamini Jaiswal: No. Who is going to identify what is terror? Today, we do not even have an Act to deal with terror. We have to go under the normal Indian Penal Code.

CNN-IBN: 56 people died in a blast.

Kamini Jaiswal: I am not saying that it is not an act of terror. I am only saying that 2000 people died in Gujarat, how many have been tried? Today we are living in an age of terror. There is state terrorism, there is fanatic terrorism. What are we talking about?

CNN-IBN: So do you want to say that a religious riot would also classify as terror and therefore a death penalty should also be applied there?

Kamini Jaiswal: Why not? Anybody killing a person, as far as the victim is concerned, he has lost a life. A family has lost a breadwinner. How do we discriminate? We do not get to the higher people. There was the NN Vora Committee report which talks of the political nexus and how the terrorist funds were coming and going. The Hawala matter talked of the terrorists’ funds coming and going to various politicians. What have we done about it? Aren't they the bigger criminals? Why don't we hang some of them?

CNN-IBN: I think that is a fair point. Only the foot soldiers get death sentence. Ms Kamini Jaiswal and Mr Harish Salve thank you very much for joining us on this show. This debate could continue endlessly, but at least let's hope the judgements do not go on endlessly.

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