Harsh Mander, Deccan Herald , Dec 2, 2012

As the world moves towards abolition of capital punishment or a moratorium on its use, India remains unmoved

Under the shroud of extraordinary secrecy, on the morning of November 21, 2012, a young man called Ajmal Kasab was hung in Yerwada Jail, shortly after his mercy petition was rejected by the President of India.

Kasab was the only surviving gunman from among those who killed 166 people in Mumbai in an audacious and bloody terrorist shootout four years earlier.

His trial was fair, his conviction just, his crime merciless and horrendous, therefore many celebrated his hanging as fitting closure to a people traumatised by his offence.

But I was among those who believed that his hasty execution was an exercise in collective revenge unworthy of a humane people, and would have greatly preferred instead the application of public compassion. As lawyer and campaigner Yug Mohit Chaudhary observed, “If we have to become a more humane and compassionate society, and leave a better… world behind for our children, we have to curb our instinct for bloody retribution.”

He adds: “Mercy tempers justice, makes it less exacting, more humane.”
Kasab’s judicial killing and the imminent possibility of several other hangings have revived with urgency the debates around the death penalty in India. This discussion involves many vital questions of public ethics and judicial fairness.

Amnesty International reports that in 1945, when the United Nations was constituted, only eight member-states had abolished the death penalty for all crimes. Today the number of countries which no longer award the death penalty to people convicted of even the gravest crimes has risen to 141.

India now stands in a minority of nation states in which the death penalty still survives in its statute books, although the Supreme Court of India mandates that it must be applied in only ‘the rarest of the rare’ cases.

Proponents of the death penalty often suggest that it is essential as a deterrent to heinous crime: if potential killers, hate criminals, child abusers, drug peddlers and serial rapists are assured that even if caught and convicted, they may be jailed for life but never executed, they will be emboldened to commit these dark crimes with greater impunity.

Fallibility of justice

However, the overwhelming evidence globally from all countries which abolished the death penalty is that ending death penalty has nowhere resulted in increased crime.

Even in India, the numbers of persons executed has come down substantially from around one almost every second day around Independence to one after several years today. Again, there is little evidence of enhanced crime in India resulting from this steeply declining application of the death penalty.

On the other hand, the arguments against the death penalty are both judicial and ethical. Foremost among judicial arguments is the recognition of the fallibility of public justice. Laws and evidence are interpreted by human beings – judges and senior executive functionaries such as heads of state – and they are subject like anyone else to human failings of error and prejudice.

Law scholar Usha Ramanathan documents globally many ‘narratives of fallibility’, of people convicted of grave crimes who are later proved to be innocent. She finds that even people who confess to crimes may turn out ultimately to be innocent, because confessions may be made under duress, after physical torture, in exhaustion or without adequate knowledge of the law.

These dangers are further greatly magnified for persons tried under extraordinary laws such as anti-terror statutes, which compromise the standards of proof required for conviction.

She concludes that “the Indian experience is replete with these problems – eyewitness misidentification, flawed forensics, police and prosecutorial pursuing of conviction and not justice, false witnesses, dearth of defence lawyers for the indigent, false confessions and miscarriage of justice. The breakdown of the criminal justice system is common knowledge, yet wrongful convictions have not deterred us” from pressing ahead with capital punishment.

The core issue is that if no judicial system in the world has been able to eliminate the chances of wrongful conviction, how can we morally justify taking away the life of a person who may actually turn out eventually to be innocent?  It is unconscionably reckless to risk executing a person who may indeed not be guilty of the crime with which he is charged.

The inherent subjectivity and ad-hocism of judicial interpretation renders the fate of a person convicted of grave transgressions to what Chaudhary aptly describes as a ‘lottery’.

The principle that the death penalty should apply only to the rarest of the rare cases applies equally to all judges, and all judges are informed that these highly exceptional cases are only those in which the convicted person is found to represent an exceptional threat to society, and is considered beyond repair and redemption. But what actually determines the difference between life and death for a convict is not so much his crime as the chance of which bench his case happens to be allotted to.

There are some judges who are known to be ‘convicting judges’, others who are far more restrained. Chaudhary finds that there were four times greater chances of being awarded the death penalty if the convict appeared before one bench of the Supreme Court instead of another. This subjects convicted persons to a roulette of life and death, which is entirely untenable morally.

What is even more worrying about judicial subjectivity is that it is not random or chance, but deeply embedded in class, gender, caste, racial and communal prejudices.

As far back as 1979, Justice Krishna Iyer observed that ‘capital sentence perhaps has a class bias and colour bar’, as the death penalty was ‘reserved’ for crimes committed by the poor. Justice Bhagvati concurred in 1982, that the death penalty is discriminatory and “has a certain class bias inasmuch as it is largely the poor and downtrodden who are victims of this extreme penalty”. Chaudhary concludes that “poverty is as significant a factor in the death sentence as the nature of the crime or the quality of evidence”.

I feel even more worried when the Supreme Court declares in a particular matter of a political crime of terror that the death sentence must be applied to ‘satisfy the collective conscience’ of the nation; or the clearly political motivations in the haste with which Kasab was executed.

And finally, even beyond the vagaries of the criminal justice system and the politics of hanging political criminals, I am compelled most by fundamental ethical claims against the death penalty. We must morally grapple with what Justice Krishna Iyer describes as the sacredness of life, the ever-present possibility of redemption of the worst type of criminal, and the barbarity of the death penalty. I feel convinced that every human being must be given a chance to redeem himself. And every human being, even the most unrepentant criminal who wrongs us most grievously, still is worthy of our compassion.

(The author is a writer and human rights worker.)

The death penalty is an ineffective, cruel, and simplistic response to the serious and complex problem of violent crime. It institutionalises discrimination against the poor and oppressed, diverts attention and financial resources from preventive measures that would actually increase public safety, risks the execution of innocent people, and does not deter crime. 

Capital account

Serial killer

Hanged at Salem
Central Prison on April 27, 1995

Hanged at Alipore
Central Jail, Kolkata on August 14, 2004

Mohammed Ajmal Amir Kasab
Hanged at Yerwada Jail, Pune on
November 21, 2012