Judicial finality need not necessarily mean that India should hang Yakub Memon. Even in this situation, as his life hangs on the slender thread of a fresh mercy plea to the President, is the irreversible and inhuman sentence of death the only recourse for a democratic government?
Carrying out the sentence will only have the appearance of a justice that is retributive and vengeful, not substantial or morally different from the very offence that gave rise to the proceedings. In recent times, we saw the horrific judicial murder of Afzal Guru, who was hanged in secret without a final opportunity for his family to meet him, marking an unprecedented abandonment of morality on the part of the state. It was only in apparent cognisance of this that the Supreme Court ruled early last year that a formal communication to the convict and his family, intimation to the local legal aid centre and a clear gap of 14 days between the communication and the execution were necessary. Further, there are bound to be questions each time someone is hanged or spared. Even in the Mumbai blasts case, the 10 men sentenced to death by the trial court for planting the explosives were given only life terms by the Supreme Court on appeal, while Yakub Memon alone was awarded the death penalty. Such distinctions may seem arbitrary to the layman. As also, the revelation that the Memon family may have been induced to return to India will cast a shadow on the legitimacy of hanging a man who cooperated with Indian agencies.
The debate on the need and desirability of retaining the death penalty has been overshadowed by much intellectual exertion on the nature of the crime involved, its gravity, its heinousness and the fatalities it caused. The time has come to end this debate once and for all by ascending to a moral position that there shall be no death penalty on the statute book, regardless of the heinousness of the offence, the circumstances or the number of fatalities involved. Anyone following closely the evolution of the law on death sentences and the clemency jurisdiction in India will understand that the Supreme Court is making it more and more difficult for the executive to carry out death sentences. It has evolved a jurisprudence that limits capital punishment to the ‘rarest of rare cases’, allowed a post-appeal review as well as a curative petition, and made decisions on appeals for mercy justiciable. It has laid down a cast-iron rule against undue delay in disposing of such mercy pleas, and it has humanised the process by repeatedly intervening in favour of condemned prisoners, often at the very last minute. A truly lasting solution to the moral dilemma that each instance of capital punishment poses will be to abolish it altogether and replace it with a sentence of imprisonment for the rest of the convict’s life. The quality of mercy is not strained. The President, under Article 72 of the Constitution, has the power to grant pardon, and to suspend, remit or commute sentences. To not exercise this expansive power in the service of mercy would be inhuman and unconscionable.