Death Penalty ot Capital Punishment in India Image

This one has India divided right down the middle. The debate on whether to abolish the death penalty or not, has been raging in India and in several other countries for decades, as each nation tries to address the issue through the lens of fair justice, human rights, ethics, morality and social well-being. There have been no easy answers and societies in most countries remain polarised on the subject.

The road to Yakub Memon’s execution has deeply divided Indian society, between those who were supporting his execution and those who believed executing him would only make us a society looking for retribution, while having no impact in the fight against terror.

The 1993 serial blasts in Mumbai was in response to the demolition of the Babri Masjid and was planned and executed by local gangster Dawood Ibrahim and actively supported by his associate Tiger Memon, Yakub’s brother. Dawood Ibrahim along with members of his gang and Tiger Memon, still remain at large and are believed to be living in Pakistan, under covert protection of the Pakistani Intelligence Service, ISI.

Yakub Memon, a chartered accountant by profession, was suspected of being involved in money laundering activity for his brother through front companies, prior to the Mumbai blast. However, his role, in the context of the death penalty, has been strongly contested by his family, his lawyers and subsequently, members of civil society including several eminent lawyers, all of whom mounted a vociferous defence in favour of commuting his death sentence to life.

So much so, that even after several years of trial and appeals, and his mercy petition being finally turned down by the President of India, his lawyers along with several other senior lawyers like Prashant Bhushan, approached the Supreme Court as late as 0300 hrs, just hours before his execution on the 30th of July, to appeal for granting him an extension of 14 days, so that his defence team could mount another last minute appeal for commuting his death sentence to life. Through all this, Indian society at large, remained divided and are still trying to come to terms with their own views on the subject.

A large section of people in the country, which included families of 257 victims who lost their lives and 713 others who were injured, remained bitter at the delay in carrying out the execution and wanted some sense of closure on a long but tragic chapter in their lives. As expected, various politicians came to a last minute defence to further polarise the debate and give the outcome a communal tone. The Supreme Court on its part remained strictly neutral and followed legal guidelines and procedure.

This was one hot potato that no political party would have liked to touch, as there is a political price to pay, irrespective of which side of the fence they were sitting on. But as it so happened, the final moment for taking the call came during the term of the present government. As per protocol, the Home Ministry took the final call to advise the President of India, on behalf of the Council of Ministers, to reject the last and final petition, thereby sealing Yakub’s fate on the evening of 29 July 2015. He was hanged in the early hours of 30 July, which also happened to be his birthday.

The message that went out to the nation, and the world at large, was that the government was not willing to take a soft line on terror, and law would take its own course, irrespective of who was involved. That said, the debate now assumes greater significance in light of the fact that the United Nations, as also Amnesty International, have appealed to India to review its existing laws on the subject and abolish the death penalty.

Let’s take a look at what position various stakeholders have taken on the subject.

The Government’s views

Arun Jaitley, the present Finance Minister and an eminent lawyer himself, has publicly defended his government’s position that death penalty should stay. He articulated his government’s stand stating that India faced a different law and order situation, as compared to those prevailing in many developed countries such as the United States, and EU as a whole. He highlighted the fact that none of the countries, including the US, faced the kind of threat emanating from cross border terrorism. Barring 9/11 attacks, the US has not seen any major terror incident in the country. Same is true for most countries in the EU, barring a few incidents over the last decade or so, whereas, India faces a terror attack almost on a weekly basis.

He spoke about how the country has to deal with militant and terror attacks in J&K, Maoist attacks in states like Chhattisgarh, Jharkhand, Odisha, MP, and AP, the insurgency in the North East etc. Therefore, what may be relevant to other countries may not hold true in India, which faces a far greater threat at all times and has to fight it on its own.

The question is, can the death penalty actually reduce or contain terror attacks? Arun Jaitley answers the same with a counter question. If we were to abolish the death penalty, would acts of terror in India come down? The answer to both questions is – probably not.

Right to life vs Right to Justice

Therefore, this complex issue must be seen from the lens of human rights, social justice, legal justice, right to live, social deterrence, ethics and morality, in contemporary times. Society is continually evolving, and therefore the definition and interpretation of all the above factors will vary from country to country, region to region, and from time to time, and therefore, its interpretation will always remain subjective. What feels just in one society, may seem otherwise to another. So how does a nation address this complex issue?

Perhaps the best way for each country and society is to address the issue of death penalty in the context of factors mentioned above, and try to seek consensus within each society, on what would be the right values and stance to take.

Still searching for answers

India faces another big question today. Who is to debate the issue of abolishing or retaining the death penalty? Is it the Parliament or should Supreme Court decide on the issue? And then there is the very vocal civil society that has a strong but well informed opinion on most issues, though it too remains divided over the issue.

Should we focus on the convict or the victim?

While we delve into our own thoughts and feelings on the subject, we need to ask ourselves – what kind of a nation do we want India to be? Do we want India to be a progressive society, if so, then does the practice of death penalty go contrary to it? Does upholding the death penalty hold relevance in our present times? Can the death penalty act as a deterrent to heinous crime? Are there definitive indicators through experience in other countries, as also in ours, whether the death penalty has resulted in reduction of heinous crime or acts of terror? If not, should our society take a more humane approach and keep the convict in prison for life?

But then, this also raises another question – how does converting the death sentence to life make it any better for the convict? After all, his agony only gets extended by living his remaining life deprived of all liberties, when the death penalty may seem a better way out for him.

So is society really being humane by converting his death into life sentence? If not, would society like to explore releasing the convict at some point of time, after he has served a long sentence? Should he be given a chance to spend his remaining life or what’s left of it, a free man?

If so, then what about the rights of those who were wronged by the actions of the convict, who have lost their only chance to life? What about justice to them? Do they not have the right to life, and when denied, can they not expect society to adequately punish those who were responsible? The argument here is not of deterrence, but punishment.

What about the rights of those kin who have to live on with horrible memories of what happened to their loved ones? After all, as surviving kin, it’s a life time of pain and agony for them. So how do they get a sense of closure, if at all?

A tough call

Society has to decide on which pan of the scale should it lean on – retribution and punishment on one side or reform and forgiveness on the other? There are no easy answers to this, as there are many stakeholders involved and all have a right to a fair and just existence in society. So, whose perspective should society take into account, the convict, or those of the victim and their surviving kin? That question remains open. What’s your call?

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