By Pragya Dhoundiyal, Law Center-1, Faculty of Law, Delhi University.
The changing global political dynamics has brought India and Germany closer. Recently, Angela Merkel, Chancellor of Germany visited India along with her delegation. Progress was made on various fronts, however the Mutual Legal Assistance Treaty, could not culminate successfully even though the negotiations have been on since 2007. The reason given by Germany to not accept the treaty is the ‘death sentence’ that still prevails in India. India tried to convince Germany by giving them assurance that ‘death sentence’ is not a general rule but an exception which is handed out in the ‘rarest of rare’ cases, in order to deter criminals. Though every criminal act is heinous but there are some acts that shock the conscience of the society as a whole, like the ‘Nirbhaya case’ which is when the provision of death penalty is resorted to. The provision related to death penalty can only be invoked in cases where such a provision is provided, though for most of the offences in the Indian Penal Code, death penalty is not even provided.
We must first try to understand as to what exactly does the Mutual Legal Assistance Treaty signify. It is a treaty or agreement between two or more nations that agree to gather and exchange information, assist and cooperate to enforce public laws or criminal laws. This has assumed significance in today’s time when crime has been spreading like wildfire blurring all boundaries, along with other things crime has also globalized and attained a global character. There are no clear demarcations of borders from within which crimes are committed, assisted by growing connectivity it is now easier for masterminds sitting in Pakistan to plot and conduct an attack like 26/11 even without stepping on the Indian soil. This makes the work for our intelligence forces difficult, because of the territorial nature of our municipal laws and we are also supposed to maintain and respect the sovereignty of the other sovereign nation. So the modern states are now trying to come up with such instruments that facilitate requesting and obtaining evidence for criminal investigations and prosecutions.
Mutual legal assistance means cooperating to get evidence, documents or records or any other form of legal assistance such as witness statements, the service of documents, taking testimony of persons, locating or identifying persons, executing requests for search and seizure or identifying, seizing and tracing proceeds of crime, custodial transfers or extradition requests. However, such mutual assistance can be denied by a country on various grounds some being political and security concerns or if the offence is not equally punishable in both the countries. It is this latter ground that is taken by Germany for refusal to accept the Mutual Legal Assistance Treaty, since capital punishment was abolished in West Germany in 1949 and in 1987 in East Germany, whereas India still continues with the practice. This is the first time a country has denied signing a Mutual Legal Assistance Treaty with India on this ground. India has already signed this treaty with 39 countries including The United States of America, United Kingdom, France, Canada, Russia and Australia.
The benefits of such an agreement are that it provides information at the investigative stage itself and often does not require dual criminality and provides scope for a wide range of possible assistance. Though such assistance cannot be asked for when it relates to military offences or will interfere with the investigation in the requested state or tax offences as provided under some treaties.
This treaty is of immense importance to India because it will help India put up a better fight against terrorism, which is threatening to engulf the entire world. Money laundering has cost our economy dearly with all the black money being stashed away and the consequent tax evasions, with the current government raising its pitch against ‘kala dhan’ such instruments gain precedence. Just like terrorism, other offences like smuggling and human trafficking also need to be controlled. Especially with the cases of harassment of domestic help coming to light every day, we need a system to keep a check to ensure such incidents do not recur.
It will not only help protect individuals but also the internal security of India, as intelligence sharing is a part of Mutual Legal Assistance Treaty. India can also have access to the database of that country within whose jurisdiction the case falls, in case India has got into an agreement with that particular country under the treaty. This facility does not stop here, it also extends to extradition of both Indian and foreign criminals, who either fled from the Indian soil to escape being caught or even those who are foreign nationals and have committed crimes in India.
If the developed nations sign this treaty then it will help India crack many important cases which are still unresolved due to lack of evidence or technical cooperation or partnership.
These discussions and the hanging of Yakub Memon, have once again raised doubts on the constitutionality and validity of death sentence. Some have even gone to the extent of calling it judicial murder, reason being the ambiguity with regards to the cases falling under the rarest of rare cases. This theory of ‘rarest of rare’ case was for the first time propounded in Bachan Singh’s case which gave a discretionary power to the courts to decide whether a case fell in that category or not. But, it does not end here, it is not only once that the court hears an accused but goes through various stages of appeal andto the Home Ministry, so basically whenever capital punishment is given, there are a lot of learned and qualified persons deliberating on the same and it is not recklessly given out. The common man has to show some trust in the existing democratic institutions, so that they may function smoothly. There have been arguments on the lines that death penalty has not been able to act as a deterrent and instead make the offender appear as a martyr, but going on this line of argument we can see a steady increase in all kinds of offences because of increase in conflicts in an increasing population, so we cannot do away with punishments and if the criminals did not actually fear death then why would they go in for appeals and delay the process for years in hope for mercy or commutation.
The law commission report is out which suggests for abolition of capital punishment. Now the ball is in the legislature’s court and we will have to wait and watch the next move in this turbulent atmosphere that is building pressure on the government to abolish the draconian provision.