In declining to use its powers to review the death sentence of Dhananjoy Chatterjee, the Supreme Court of India has today not only declined to take responsibility for the life that it has condemned, but also the principles which it ought to be representing.
The Constitution of India establishes that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Supreme Court has rejected the petition filed by Bikas Chatterjee, brother of the sentenced man, as his appeal for clemency to the President of India was already rejected. By this narrow reasoning, the procedure established by law has been met, and a man can be killed.
But where was the procedure established by law when Dhananjoy Chatterjee was tried? A poor man who could not afford to engage good lawyers, the case against him was decided on circumstantial evidence. Just a few days ago prosecutors in the United States freed the 115th person condemned to death there, having finally proven his innocence on the basis of DNA testing. No DNA test has ever been conducted to prove the guilt of Dhananjoy Chatterjee, nor does the Supreme Court seem to feel that this standard of evidence is necessary to execute a man in India.
Where was the procedure established by law during the last 13 years that Dhananjoy Chatterjee spent in solitary confinement? Precedents exist for the Supreme Court to commute the death sentence on the ground that the convicted person has already been punished enough due to an unreasonable delay in carrying out the sentence, and attendant suffering. The former Supreme Court Justice V R Krishna Iyer may have had these precedents—and the higher values they represent—in mind when he too appealed to the Court to overturn the sentence in this case. Regrettably, the current bench of the Supreme Court seems to subscribe to a lower standard of justice than did its predecessors.
Where is the procedure established by international law to permit this killing? India is legally bound to the International Covenant on Civil and Political Rights, which in its wording strongly suggests that the death penalty should be abolished, hence its Second Optional Protocol, prohibiting the act. Inexplicably, India has declined to ratify the latter document. Furthermore, the 13 years that Dhananjoy Chatterjee spent in solitary confinement amount to cruel and inhuman treatment, in violation of the international Convention against Torture. India is also yet to ratify this instrument, on the spurious claim that the protection afforded by the Convention already exists in domestic law; were that the case, Dhananjoy Chatterjee would not be facing imminent execution this Saturday morning.
That the Supreme Court has either ignored or wilfully undermined these standards is both disappointing and predictable. People in South Asia for thousands of years subsisted under the draconian Law of Manu; in granting the death sentence, the Court is simply regressing into feudal practices of retributive punishment delivered by the rich and powerful against the poor and defenceless. The Indian justice system is today reviving that ancient nightmare, in which true justice is a stranger. The question being asked more often is why has the Indian judiciary been treated like a holy cow? How is it that most Indians remain reluctant to question the role and decisions of the judges presiding over their courtrooms and lives?
Where the life of a person is at stake, there is no room for reluctance. Irrespective of what they have been accused, let alone the extenuating circumstances in this case, a condemned person deserves our defence. At this juncture, Indians should abandon polite dinnertime conversations about whether or not the death penalty is justified and protest loudly against the Supreme Court’s rejection of the petition by Bikas Chatterjee. Contrary to the finding of the Court, that petition is full of merit, for it is motivated by the desire to spare a life. Loud protests against its decision may be a further wake up call to Indians that their voices are needed to enlighten and overhaul their damaged judiciary — from top to bottom.
