Abolition of capital punishment. Is India ready?

Through this article, I intend to offer insight and more importantly, a perspective different from that based on generic and ‘rational’ thinking to what has arguably become the most talked about and controversial topic; and for which India has faced strong international condemnation, especially in the aftermath of recent events.

Recently, the apex court upheld the death sentence of Yakub Memon by referring to him as the ‘mastermind’ of the 1993 Mumbai serial bomb blasts. The hanging was to be done on the morning of his 53rd birthday. While the digital and print media was busy covering the entire trial, a slow yet steady movement was silently gaining momentum. The internet was getting increasingly flooded with criticism against the Supreme Court’s decision to administer the harshest punishment available in this case. A form of punishment, which had already been abolished by 103 countries.  Some people went so far as to assert that the decision represented ‘a significant judicial miscarriage’ and that the Supreme Court acted ‘in a manner inconsistent with the premise of justice and humanity’.

“Essentially Yakub Memon’s deeds can’t be viewed distinct from the act of Tiger Memon, hence both owe an equivalent responsibility for the blasts. They were the architects of the blasts, without whom the plan would never have seen the daylight,” said the Hon’ble court.

The bench also observed that there was no direct act attributed to Yakub Memon as far as parking of explosive filled vehicles in different localities was concerned. But it should be kept in mind, that if not for the planning of the conspirators to which Yakub Memon was a party too, the explosives and ammunition required for the execution wouldn’t have entered into our country and as a consequence the execution itself wouldn’t have materialised.

Amidst all the above arguments, it would be wise to note that the punishment was awarded only after Yakub Memon had exhausted every possible appeal available to him and that the entire judicial apparatus was at his disposal during the trial. So people on the internet, are you guys privy to some hidden secret about his innocence? Because if you’re not then you certainly are as misinformed as those who claim Asaram Bapu’s saintliness.

So, to the death penalty argument now. Can two wrongs make a right?

Therefore if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good. Therefore to kill a man who retains his natural worthiness is intrinsically evil, although it may be justifiable to kill a sinner just as it is to kill a beast, for, as Aristotle points out, an evil man is worse than a beast and more harmful.

– Thomas Aquinas, the Summa

Everyone has an inalienable right to life, even those who commit murder. However, I believe that a person forfeits his right to live when he commits such odious crimes. No matter how well-reasoned the arguments criticizing capital punishment might seem, I for one, am of the view that India is not ready for the abolition. Yet.

The moment arguments centring around the value of human life, execution of innocents and the morally incorrect and cruel nature of this punishment are put forth, I stand defeated. ‘To take a life when a life has been lost is revenge and not justice’ and this is exactly what I feel. The point that I’m trying to make through this post is that India is not ready for the abolition as of now. And I have my reasons.

Firstly, I would like to draw attention to our friendly neighbours. And the neighbours of our neighbours. And the neighbours of their neighbours till the neighbourhood borders on the territories in control of the ISIS. India is not new to terror. Pakistan has violated ceasefire in the Kashmir valley a thousand times, Osama Bin Laden had been hiding in Pakistan for the major part of his abscondence. 26/11 happened courtesy Pakistan and I haven’t started talking about the PoK issue yet.

In such a situation, India cannot suddenly shrug off the death penalty. It is just not ready. Doing this will most certainly benefit the terrorist groups. Terror and riots can and should never be justified. Though it is not humane for a country to continue the use of capital punishment especially at a stage where it is doing everything it can to bring to the table progressive laws, judicial reforms and regulations which are in line with the constitutional principles, India as a state stands on a somewhat different footing and in my opinion, could be termed as an exception.

Secondly, abolishing capital punishment would encourage recruitment in terror camps, give a boost to terror activities all over the world and perhaps give something like a green signal to the ISIS to bomb a neighbourhood. By refusing to abolish the death penalty, India is making a statement. A statement that terror acts will not be tolerated. A reward encourages you to do the right thing, while a deterrent discourages you from doing the wrong thing. It’s that simple. Death penalty provides a sense of finality to the case. Its abolition will certainly be abused:-

‘Get caught planting a bomb and be ready to spend the rest of your life comfortably in the secure confines of Indian prisons, where you will be guaranteed a 10 x 12 room, bed and meals.’ – A package tailor-made for terrorists with no significant family to feed, as it will enable them to lead a carefree life post retirement.

I needn’t explain more.

I came across a very interesting proposition on the internet the other day. It was an interview of the acclaimed US lawyer Bryan Stevenson titled If it’s not right to rape a rapist, how can it be OK to kill a killer? (The entire piece can be found here). Though I largely agree with his points, all of them don’t fit in India’s complex dimensions. The whole point of the death penalty, as I would like to respectfully submit, is to give punishment to the offender so that he, and all other potential wrongdoers understand the magnitude of the crime. The aim is not necessarily to inflict pain and damage and more than retribution, the objective is to deliver a message of intolerance. And this, in my opinion is the thin line that separates a strict and disciplinarian state committed to justice from a state driven by political need to satiate public anger.

It would be important here to note, for those who don’t already know, judicial hanging causes the cervical vertebrae to break and thus results into instantaneous death. This runs contrary to popular belief that the offender is subjected to a slow, painful and helpless death caused due to strangling. In some countries, execution is also carried out by way of a lethal injection.

Lastly, I want to emphasize on the radically different social and political conditions existing in different countries around the globe.  Death penalty has been abolished in, among other countries, England, Spain, Australia, Netherlands and Canada. It would be appropriate to state here that these are highly developed countries with low crime rates and hence these countries had never really required the existence of the death penalty in the first place. Jurisprudence requires that we progressively craft our legal system in such a way so as to eradicate all forms of injustice. Death penalty is thus, necessitated in those countries which haven’t made any significant progress in achieving fool-proof justice to prevent the society from degenerating to chaos. And hence, death penalty is still awarded in a significant number of developing and underdeveloped countries even today. Also, the countries which have abolished the death penalty face no ‘real’ outside danger and their borders are relatively safe. The United States has not done so because it still lies in the jurisdiction of Al-Qaeda and the ISIS. India is placed on a similar footing and hence needs capital punishment in its armoury.

In my opinion, the effectiveness and independence of the Indian Judicial System should not be questioned. There is a lot more than meets the eye. A significant quantum of sensitive information cannot be made available to the media and public. Only the courts are privy to this information and the decisions are taken only after a thorough consideration of all the facts by the Judges. The majesty of the Supreme Court should not be questioned. In any case, the Supreme Court has directed that the death penalty be given in only the ‘rarest of the rare’ cases. It would do well for the people of this country to have faith in the courts. India has a strong legal apparatus wherein a large number of remedies, both legal and constitutional are available equally and without discrimination. So when an offender belonging to a particular community is sentenced to death, it is NOT because of his country/caste but because he committed a crime worthy of the highest level of punishment. We therefore need to #riseabove our preconceived opinions and trust the legal system of our country to not cause harm to innocents.

Global terrorism is at an all-time high and India lies exposed now more than ever. Capital punishment therefore, should stay.

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