By M R Shamshad
This forgiveness or diyah is based entirely on the private right of the victim, and not of the sovereign
LuLu Group owner Yusuff Ali’s generous act to save a man who was languishing in a United Arab Emirates jail after being sentenced to death by the top court, has grabbed headlines. The 65-year-old billionaire has reportedly paid Rs 1 crore to free Becks Krishnan after he was convicted in a 2012 road accident case, which claimed the life of a Sudanese national.
In a majority of legal systems, including the system in India, death penalty is non-negotiable. However, there is some scope in Islamic jurisdictions to save the life of a convict by waiving off the death penalty in case the victim’s relatives decides to forgive the killer. This principle is called “diyah”, which is loosely understood as “blood money”.
But today, in the modern sense of justice, death penalty is discouraged. In 140 countries, it has been abolished, where life imprisonment is awarded to a convict of culpable homicide. As a rule, however, the Islamic sense of justice requires death penalty as a ‘norm’ in the cases of proven murder; the reasoning being that the killer should lose his own life for taking another’s, which is based on the principle of ‘qisas’ (retaliation of the same degree).
The original sacred texts state that the objective of it is not to extract ‘revenge’, but save others from the same fate, in order to make the society safer. However, in case the victim does not want ‘qisas’, the Islamic law sets out an exception to this principle by conducting a settlement between the murderer and the victim. This can be compensatory, in terms of money, or mere forgiveness sans money.
This forgiveness or diyah, it must be noted, is based entirely on the private right of the victim, and not of the sovereign, like we have the concept of executive clemency (the power of a president in federal criminal cases, and the governor in state convictions, to pardon a person convicted of a crime, commute the sentence, or reduce it from death to another lesser sentence).
In the early Islamic era, under certain situations, slaves could be made free in lieu of monetary compensation. These exceptional measures of the Islamic law are the other face of it; to avoid hardship in the social order with the objective to establish fraternity. Many of these exceptional provisions were part of the Indian criminal law jurisprudence till the time British established the foundation of the present criminal justice system.
Compensation though is not an alien concept in non-Islamic Western legal systems, but that claim is in addition to taking the criminal legal process to its logical conclusion. However, in the Islamic system, if monetary compensation is accepted, then the killer is presumed to be forgiven by the victim for the offence.
When the British began enforcing its legal system in India, they decided to put an end to this informal practice of settling criminal cases. One of the initial regulations relating to criminal law mandated the law officers to give their opinion on homicide cases on the assumption that the victim’s family wanted ‘retaliation’. It then began to take immediate steps for the removal of death penalty in accidental homicidal cases.
In Rudolph Peter’s book Crime and Punishment in Islamic Law, he writes that, “between 1790 and 1807, the British transformed Islamic criminal law totally and beyond recognition” and for all culpable homicide and wounding, imprisonment would be a mandatory sentence. Half a century later, this system came into effect as the Indian Penal Code 1861, which remains the basic criminal law doctrine today.
Cut to 2005. India has today adopted a situationist approach by introducing the concept of ‘plea bargain’ for certain classes of cases during the pendency of a criminal trial. Firstly, for the inability to dispose of criminal cases due to delay in trials, and secondly, because of a very low conviction rate. In a plea bargain, the accused and the victim can work out mutually satisfactory terms of disposition, and then the judge exercises his or her power to dispose of the case as the court deems appropriate.
The US judiciary recognised this concept much earlier, but it does not let off the accused completely. The accused can avoid a stringent sentencing to a lesser one, but considering the high number of plea bargain cases, this method has become very important in the US criminal justice system for its functioning.
In countries like Thailand, Russia and Venezuela, the rapist of a girl of a marriageable age stands forgiven by law if he agrees to marry her. This is on the same lines of giving ‘diyah’, with repentance to the crime. Although murder, rape, robbery and many crimes against women are not part of plea bargain in India, according to the 2014 NCRB report, there are many such cases that have been resolved through this process during the trial.
This concept of ‘diyah’, which has saved Krishnan’s life in another jurisdiction, has given him a second lease of life. World over, including our legal system, nations have sought to introduce various such measures to introduce reforms in the criminal justice system. Many are along the lines of the principle which saved Krishnan’s life in the UAE.
The writer is a Supreme Court advocate.
(Views expressed by the author are personal)
‘This article first appeared in the Times of India’.