CAVEAT This post was updated on the morning of 30 July.
Yakub Memon was hung in Nagpur Jail on Thursday morning for his role in the 1993 Mumbai blasts, in which 257 persons were killed.
While refusing to stay the hanging, Supreme Court Justice A.R. Dave quoted from the Manusmriti, saying the king must punish the sinner, or the sin would befall him.
This was another way of justifying the retributive form of justice, which was so opposed by Mahatma Gandhi, who said “an eye for an eye will leave everyone blind”.
Justice or revenge?
The demand for death penalty is revenge. Basically what the court and government and those who support the death penalty are saying is that the people who have killed others can be killed.
There is no justification of the crime committed by the murderer, but the question that we need to ask is just because someone has killed somebody, it gives the state the right to kill another human being?
Kofi Annan, the former Secretary General of the United Nations had asked, “Can the state, which represents the whole of society and has the duty of protecting society, fulfill that duty by lowering itself to the level of the murderer, and treating him as he treated others?
“The forfeiture of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. And I believe that future generations, throughout the world, will come to agree.”
Capital punishment is murder
No matter how one looks at it, when a person’s life is taken by another intentionally, it is murder.
There is no denying the reality that capital punishment, even though judicially sanctioned, is murder.
It is argued that by awarding the death penalty, the courts are deterring murderers. But has it worked? Studies have shown that the death penalty has not reduced murders anywhere in the world. It also does not bring closure to the victims of the crime.
Revenge is not justice, and is immoral. It also justifies violence.
Yakub’s special situation
Justice Dave commented that Yakub’s lawyers were showing concern for a person who killed 257 people. This was most unfortunate.
They did not claim that Yakub was not guilty. They were arguing against the inhumanity and immorality of the death penalty. They were pointing out that every time someone is hanged, we promote violence and murder.
In the case of Yakub, it is also necessary to recollect that he had surrendered to the police voluntarily. He had returned from Pakistan, where he was living in safety and had agreed to assist in the investigation.
The death penalty is nothing but a state’s right to murder a murderer. It is just another form of revenge
B Raman, the intelligence officer who had played a crucial role in bringing Yakub and his family back to India, has pointed out that Yakub had returned to India as he was given assurances of leniency by Indian investigators.
It is now known that Yakub had turned over a significant amount of documents and other material that helped the Indian investigating agencies disentangle the terror plot. It helped prove Pakistan’s complicity in the bombings.
According to Raman, Yakub’s full cooperation with the investigators entitled him to leniency. But the manner in which the investigation agencies handled Yakub’s case, and hid the fact of his cooperation, raises questions of ethics and good practice.
It has always been difficult to prove conspiracy. But hanging Yakub will send a clear signal to all those who might be thinking of surrendering and cooperating with Indian investigation agencies. This will certainly hamper the prospect of solving terror-related crimes in the future.
The broader argument
The death penalty is inherently discriminatory, arbitrary and ineffective. In reality, it vitiates the entire process of justice.
Hanging a criminal to appease public opinion, as the case of Yakub is, will not serve the end of justice. Keeping Yakub in jail for the rest of his life will serve the end better, as his lifelong incarceration will serve as an example that killers will not be let off.
It is time that we gave up this arcane and bizarre practice. The death penalty issue is divisive and we cannot deny that our system is also flawed.
And as Albert Camus had pointed out, crime has persisted despite the practice of death penalty for centuries. One must remember, the state is not God. It has no right to take away what it cannot restore when it wants to.