Human judgments are never so certain as to permit society to kill a human who’s being judged by other human beings, writes FAIZAN MUSTAFA

Yakub Memon has been hanged on his birthday after due process of law and after being in jail for 21 years. Eight judges were convinced that he deserved death as ‘just deserts’. They did not change their mind even in yesterday’s pre-dawn hearing. Now is the time to debate the efficacy of the death penalty as a punishment. The Romans had abolished the death penalty because so far as the death penalty was concerned, Julius Caesar had said, ‘I can say with truth that amid grief and wretchedness death is a relief from woes, not a punishment; that it puts an end; to all moral ills and leaves no room either for joy…..To kill is not to punish…. If by death we cut off his joys and happiness in the same measure we cut off his sorrows and humiliation….Death is an asylum, impregnable against punishment’. By contrast, between 2000 and 2015, 1,617 people were sentenced to death by the trial courts in India. This is the state of affairs in spite of the ‘rarest of rare’ doctrine. The shocking findings of the latest study by National Law University, Delhi, have clearly proved that just like in the United States, the death penalty in India is basically used against the poor, marginalised and minorities. Blacks who killed whites were three times more likely to get the death penalty than whites who killed blacks.

PRATHAM GOKHALE/HT The shocking findings of the latest study by National Law University, Delhi, have clearly proved that just like in the United States, the death penalty in India is basically used against the poor, marginalised and minoritiesThe criminal law is described as ‘an island of technicality in a sea of discretion’. The police have the discretion in arrest; the prosecutor as to whether to prosecute and if so, for what crime. The judges have the discretion as to sentence. The President and the governor too have the discretion in pardoning powers. Should the decision to kill be left to discretion?

For centuries the death penalty was not debated so far as its legitimacy was concerned. Its acceptance in ancient societies seems to have depended on two fundamental principles: First, insignificant values attached to human life or, at least, to the life of any particular individual. Second, the death of the criminal was considered to be just and necessary under the principle of retribution.

Thorsten Sellin in the US conducted a study of crime rates and trends, which showed that the abolition or the re-establishment of capital punishment never led to an abrupt and appreciable rise (or fall) in criminality. In 18th century England even pick-pocketing was punishable with death. Even when the offender was being hanged, there were sharpers ready to pickpocket those who delighted themselves as spectators at the scene of the execution.

The constituent assembly did debate the death penalty and its leading members favoured abolition. Shibban Lal Saxena, who himself was on death row for 26 months and had seen 37 persons being hanged, forcefully argued that at least seven of them were innocent. BR Ambedkar, Frank Antony and Thakur Das Bhargava too argued for the abolition but eventually the matter was left to the decision of Parliament.

Justice Bhagwati rightly said that the death penalty is arbitrary, as it depends on the subjective decision of judges and composition of benches. It depends on their attitude, predilections and preconceptions, their value system and social philosophy. In Memon’s case, the difference in Justice Dave’s and Justice Joseph’s approach was clearly visible.

In the SKS Bariyar vs State of Maharashtra case, Justice SB Sinha held that in all cases, including the most brutal and heinous crimes, the circumstances pertaining to the ‘criminal’ should be given full weight. In DPS Bhullar’s case, the court held that the criminal deserved no sympathy in spite of flaws in prosecution and trial. The Supreme Court has itself admitted that seven of its death penalty judgments were rendered per incuriam (out of error or ignorance) and were contrary to the ‘rarest of rare’. The court has also accepted that it has been inconsistent with using the ‘rarest of rare’ scenario. In fact on the commutation of the death sentence, the court has been consistently inconsistent.

The apex court’s logic of giving death in the Afzal Guru case to meet the so-called ‘conscience of the nation’ has also been criticised. Public opinion is indeed irrelevant to the ‘rarest of rarest’ doctrine as it is neither an objective circumstance relating to ‘crime’ nor to the ‘criminal’.

As a matter of fact it would be a terrible thing if a man has been hanged for a crime that he has not committed; in such a case, the law itself would be a murderer. The number of convicts sent to the gallows and afterwards proved to be innocent has been counted by thousands in the western world alone.

Moreover, the death penalty is not a punishment as it indeed results in sympathy for the criminal. People forget the crimes of the convicts and remember only what happens at the end — the execution of the death sentence. The convict to some extent becomes a hero. The Kehar Singh case is a glaring example as most editorials had termed it a ‘shame’ or ‘judicial murder’. Even about Memon, editorials have argued that since he did not participate in the actual act of the blasts, he came back and surrendered to police and there was only circumstantial evidence against him and that too of the co-accused in police custody, the test of the ‘rarest of rare’ was not fully satisfied.

Human judgments are never so certain as to permit society to kill a human being judged by other human beings. Let us not deprive ourselves of any chance to redeem our errors. Let the Modi government, which is repealing obsolete laws, take the bold initiative of abolishing the death penalty as well.

Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad The views expressed are personal