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Evidence must be unimpeachable for a death sentence: Gopal Subramaniam

Interview with Former Solicitor General & Member, J S Verma Committee

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Gopal Subramaniam, former solicitor general and member of the Justice J S Verma Committee, which is deliberating on amendments to criminal law to provide for quicker trial and enhanced punishment for criminals accused of against women, tells Gyan Varma the panel has received about 70,000 suggestions on the issue

The gang rape and murder of a 23-year-old paramedic student in Delhi last month shocked the entire nation. What was your first reaction when you heard about the incident? How do you view the large-scale protests against the incident?
It is one of the most shocking and heinous crimes ever. It is a shame that despite all the resources and police machinery, such a crime could take place in the country’s capital . There is a stigma against Delhi now, and that’s a matter of great public concern. But I also interpret this incident in the larger context — in terms of the ability or the inability of the state to secure women and ensure their safety. I think the protests took place spontaneously, with great dignity and showed a certain degree of solidarity. In a democracy, citizens have the right to protest and express their anger. Hence, the protests are legitimate.

The three-member received several suggestions. Can you share some of these? Do you think amendments to the criminal law can end violence against women?
We have received about 70,000 suggestions. All three of us (members of the committee) are working day and night. We have rarely slept for more than two hours a night. We have an excellent team of lawyers to assist us, and experts have been consulted from India and abroad. We are going to take into account the existing state of the laws and examine what ought to be changed.

Is the committee considering punishments such as death penalties or castrations, as demanded by a large section of the people?
The committee is considering all kinds of suggestions. As I said, we are still in the process of deliberating these. We have invited organisations for discussions and have met many of these on a one-to-one basis. We are trying to ensure public opinion is taken into account. We might be able to present the report before the due date of January 24. We’re planning to present it on January 23.

The Bharatiya Janata Party has demanded 2001 Parliament attack accused Afzal Guru be hanged. You were involved in that case. What are your views? What is the reason for the delay?
I was the special public prosecutor. I still remember before I started the matter, I paid special homage to all those security personnel who laid down their lives. I appeared in the Delhi High Court and the Supreme Court. Investigations were completed in record time and the trial was carried out expeditiously by the sessions court. A division bench of the Delhi High Court, too, completed the reference quickly. There were nuanced arguments in the Supreme Court — almost lasting six months. The delay should be explained by the executive. There was no delay as far as the legal system was concerned.

The gang rape has led to calls for lowering the juvenile age from 18 to 16 years. According to child rights’ activists, 4,000 juvenile offenders have committed repeat offences.
The concept of ‘juvenile age’ needs to be understood in a proper perspective. We are signatories of international conventions, and we think 18 years is the age that separates a child from a major. For a person aged more than 15 years, it is expected hisher comprehension, understanding and discrimination would be better. But we need to consider the different bandwidths of age. In the United Kingdom, one aged up to 13 years is considered a child; for those aged between 13 and 15 years, there’s another bandwidth of consent. In India, one law considers the age of 16, while another takes it as 18. We need to reconcile that. Of course, we have two strands of opinion — one is to reduce the juvenile age to 16 years and the other is to keep it unchanged. For certain consensual acts of intercourse, 16 years can be the age limit.

People believe the 26/11 terror attacks case against Ajmal Kasab was an open-and-shut case because of the overwhelming evidence. What was the most challenging part in the case?
The most challenging part was looking at the case afresh. You needed to disabuse your mind of impressions, feelings, sensation and public opinion. When you are a prosecutor, you have to look at everything closely. I admire the Supreme Court for hearing the case in meticulous and thorough detail. It was one of the most extraordinary hearings in the court. I wish we could have videographed it because it was a perfect example for sessions courts and others to follow.

Some people have argued against capital punishment. What are your views, especially at a time when the Union government has to deal with terrorists such as Ajmal Kasab and Afzal Guru, as well as several rape perpetrators?
The debate on capital punishment is a valid one. But look at it in two contexts: First, what is the purpose of capital punishment? We still don’t understand that for a person sentenced to imprisonment, it is meant to enable him to begin certain new transformative psychological processes in his life. I am afraid our prisons do not believe in this outlook, and that is a reason for such a degree of wastage of human potential. So, we must understand when people say capital punishment is of no use, one of the good arguments in support is our transformative processes are very effective, but that’s not the position.

Second, in India, there can be extreme crimes such as the 26/11 terror attacks; there can be a crime of the most heinous variety, in which death sentence may be the only way in which the society’s conscience can be answered. There can be extreme cases for which death sentences can’t be ruled out. But I would add for myself, it should be the rarest of the rare; evidence must be unimpeachable; there should be no circumstance inconsistent with the hypothesis of guilt. So, as a prosecutor, I would use very stringent standards before recommending a death sentence.

You had resigned as solicitor general after Union minister Kapil Sibal decided to appoint Rohinton Nariman to appear in a public interest litigation against him. What went wrong? Do you feel the Union government did not treat you fairly?
I must say in the six years I spent in office – four years as additional solicitor general and two years as solicitor general – I had a great opportunity to work with the government. Sibal has been a valuable colleague at the Bar and I have known him for many years. His father was an extraordinary person and I had the opportunity to meet him several times. Though at that moment, Sibal might have decided to appoint Nariman, my point was not about Sibal at all. In fact, there is no clash between us. Even today, we share the same degree of warmth. What worried me was since I was solicitor general, someone else being inducted into the case ought to have been done with the consent of the solicitor general. So, it is a point of principle. Although it may appear to be not very material, since the office demands a certain degree of respect and perception, I decided to resign. The appointment of Nariman, also a friend of mine, was a happy event and I was one of the first to congratulate him.

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