This Article is From Jul 31, 2015

Charged Debate Over Yakub Memon Overlooked This

Yakub Memon is dead and buried. The debate over the circumstances of his arrest and quantum of guilt in the Mumbai bombings of 1993 is infructuous now, at least for him and his family. Indeed, after the Supreme Court decided on the finality of his conviction, and heard out repeated mercy petitions, arguments on this ground are pointless. There has to be a closure to the legal case against Memon. 

Even so, the larger debate on the death penalty - energised in the days leading up to Memon's hanging - is an important one and should be continued and delinked from just Memon's story. Indeed, a sober and calmer discussion on the death penalty, without the context and emotions of an imminent execution, would be entirely recommended. This would be small comfort for those who wanted Memon to live, but could form an important guide for the future.

The case for abolishing the death penalty is a compelling one. Many genuinely believe that hanging a person amounts to an atavistic bloodlust and an outmoded notion of collective vengeance, that it is not part of the concourse of human civilisation. That apart, the death penalty, though rarely implemented in India, has a chequered and wholly inconsistent history. 

For example, there is no deadline for the President to decide upon a mercy petition. As of now, a convict sends his mercy petition to the President's office. The President forwards it to the Union Home Ministry. The Home Ministry forwards it to the state government in the jurisdiction of which the crime took place. Not only do state governments take their own time, they also decide on the basis of subjective assessments that may not meet the same a standard/a common benchmark. 

Next, how does one compare wrongdoing? Why should an Ajmal Kasab hang if those who killed Rajiv Gandhi don't need to? How is Yakub Memon designated more evil and less capable of redemption than Surendra Koli, the child killer of Nithari? These are troubling questions and are bound to be raised each time there is an execution.

Everybody recognises such inconsistencies and that is why, despite hundreds being on death row, only four people have actually been hanged in India in the past 20 years. Like so much else in this country, the handing out of a death sentence by a court has come to mean very little. It would be entirely in order if the death sentence were to go, and be replaced by imprisonment for life, till the natural demise of the convict.

However, there is a caveat to be entered here. At the root of the criminal justice system is the principle of deterrence. A wrongdoer is punished so as to teach him that there is a price to pay for a crime and to prevent recurrence. Releasing a person after a seven or eight term year prison term is a bet that he has learnt his lesson and will not relapse into crime. Keeping a person in prison for life is an assumption that the person cannot be redeemed and must be locked up for the rest of his years to safeguard society.

So how does one consider the case of a death-row convict who may not repeat his crime - or be able to repeat his crime because he is in prison - but could still pose a danger to society as the target of a high-value hostage crisis? Of the four people hanged in India since the turn of the millennium, arguably at least Kasab falls into that category. If his death sentence had been commuted, it is a logical expectation that the Lashkar-e-Toiba would have sought to have him released by trying to hijack a plane and so on. It would have been a tempting mission for a terror group.

Does one then abolish the death sentence for "ordinary" crimes but retain it for terrorism-related crimes, where the continued existence of somebody otherwise guilty of a capital crime could pose a danger to society even if the person himself is incapable of committing another act of terrorism? 

This would lead to another conundrum. At this juncture, the threat perception from terrorism is highest from groups that happen to be Islamist. In the 1980s, it was highest from groups that happened to be Khalistani. Does this mean, in a medium-term framework at least, there will end up being a de facto acceptance of a religious skew to those who are hanged? What of political implications to this, and how will the polity respond? 

By extending that argument to its logical absurdity, is the retention of a death sentence for terrorism-related crimes only acceptable if terrorism vanishes and nobody is hanged, or if there is a fair sprinkling of lethal, death-deserving terrorists from all significant religious communities to fulfil a politically acceptable quota system? The first proposition is utopian; the second is undesirable to the point of sounding macabre.

The points made above reflect the genuine confusion and dilemma of this writer, and, one suspects, of a larger group that is otherwise uncomfortable with the death penalty. They also offer a glimpse as to the practical problems politicians and governments will cite in retaining the status quo.

Postscript: The death penalty correctly impels a moral and philosophical debate. It has to be pointed out though that fewer than 60 people have been hanged in India in the 68 years since Independence. 

In contrast, half a million children under the age of five die in India each year due to vaccine-preventable diseases. In a sense, they too are victims of the state and of a public immunisation programme that is failing to deliver. When was the last time you saw protests and a candlelight vigil for these children? When was the last time you heard a breathless television anchor bizarrely announce: "Rushing to Nagpur for the live telecast of a child about to die of whooping cough ... Many people present. They've been waiting for this moment for a long time ..."?

Priorities, priorities ...

(The author is senior fellow, Observer Research Foundation. He can be reached at

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