‘Executing’ Justice


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Questions on capital punishment: “Subtle and sure is the eternal warning that should such questions be ignored by the era it speaks to, time will find its own way of considering them. The answers that come thereof may not bode well for a modern, Constitutional nation-state”

 

Stroke after swipe, one after another, a chisel to a boulder reveals a story – an evolving story that grows sharper with each fresh and thoughtful strike. To the advance of human society, curiosity has been its faithful chisel. Where a strike would stub at a rigid spot – where a question would wrestle the status quo – resistance would be natural. Should this resistance prevail – the past and present are replete with examples – the progress of the human condition is brought to question.

Suspended somewhere between the factions of a shouting and slumbering citizenry, are questions pleading to be considered. Questions, in this case, on capital punishment and its applications in today’s India. Subtle and sure is the eternal warning that should such questions be ignored by the era it speaks to, time will find its own way of considering them. The answers that come thereof may not bode well for a modern, Constitutional nation-state; the stink of social unrest and discord often result from festering questions that have been supressed for far too long.

I have been contemplating Yakub Memon’s recent execution as a convict, and the “driving spirit”, behind the 1993 serial bomb blasts in Mumbai that killed 257 civilians. After numerous attempts to empathise with positions favouring the death penalty, I have been left with two shades of anguish: firstly, the pain in the hearts of so many who have lost their loved ones to the horrors of 1993 is heart-wrenching. My blood boils at the thought of the incident, just as it does in many others’. (There are times when I resent my birth in 1992, into an India bruised by violence and communal conflict – an India that prisoned itself within manufactured divisions).

In the same strain, as a sensitive citizen, I am doubly struck by the extent to which a large section of Indians have been shouting-down calls of conscience, probity and reason, whenever these should challenge the premises of public passion (the precise sort of passions, for instance, that are spawning memories of 1993). In its very extremes, this mind-set is scarcely apart from the self-righteous bigot’s, which views dissent, even of the constructive sort, as babblings from hell.

The spirit of this piece is to question a principle, which, at the moment, is the law of our land – the principle of law-sanctioned executions as upheld in the death penalty. Though Yakub Memon will be invoked as a metaphor to illustrate some points, a case is not being made for his innocence. Memon was a grave criminal, there’s little doubt about that, and he deserved a most severe sentence. However, when questions are cast on the death penalty, namely in Memon’s case, these are far from an attempt to undermine the atrocities of 1993. My critique on notion(s) of justice doesn’t speak to the crime-in-focus’s legitimacy at all. I seek to dismiss such suspicions at the very outset.

It must also be made clear that the legitimacy of our criminal justice system – the process of law – is not being probed here either; only the outcomes of this process are being questioned. I say this in deference to a very thoughtful column written on this subject by one of our finest public intellectuals – Dr Pratap Bhanu Mehta. In sincere support of the process of law, my argument is that the outcome of this case undermines the faith our judicial process must ideally elicit – a process that is sanctioned by the very exalted spirit and vision of our Constitution.

Two questions haunt the public discourse in India today as Yakub Memon hung on the gallows this morning: Should he have been executed? And should the death penalty be abolished in India?

As far as our President, the Government of Maharashtra, the Central Government, the Supreme Court and the Governor of Maharashtra are concerned, Memon deserved nothing short of death. While Memon’s first mercy petition (initiated by his brother) had already been rejected at Rashtrapati Bhavan, it remained to be seen if his renewed plea of mercy – personally pleaded by him this time – would be considered favourably, on the eve of his execution. The President, it turns out, stuck to the status quo.

I will avoid elaborating my stance on this issue too much as plenty has been said about it already. I will say this, at any rate: Memon, though a sure criminal, was, among all the absconding authors of this crime (Tiger Memon and Dawood Ibrahim, namely), the only one who – after being captured in 1994 – cooperated in some measure by persuading his family, including his wife, to return to India and surrender. Also, he is understood to have provided some useful information towards the progress of the investigations (this point, however, I believe is still debated). Regardless, since others convicted have only been given life-sentences, and the remaining “masterminds” of the crime are still at large, what on earth justifies Memon’s case to be singled-out as “rarest of rare”, such that he be executed? This is the third death by hanging to have been sanctioned in our country since 2012, by the way, all three of which have been surrounded in controversy.

Lessons may be drawn in retrospect, but nothing can be done about Memon and the fate he met. I will focus, hence, on the connected, and more far-reaching, question: should we abolish the death penalty?

From 193 member-states in the United Nations, 140 have dusted the death penalty. India, so far, has refrained. We’ve not even agreed to a moratorium endorsed by 114 UN members – we have basically refused to even spell our intention to, for some time or at some point, consider doing-away with the death penalty. The Government of India has argued that the decision to uphold the death penalty or not is India’s sovereign right and that the penalty is given only in the “rarest of rare” cases. The government then placed a cherry on its bombasts to say that India abides by the rule of law. Rule of law? How is vengeance as a concept of justice – eye for an eye, blood for blood – even remotely compliant with the rule of law?

Aside from the clumsiness in our government’s justifications, the penalty’s contemporary context appears more questionable:

Students from the National Law University, Delhi, in a recent, first-of-its-kind effort, interviewed 373 death-row convicts in India. They were to learn that 75% of them are economically poor, Dalits and from backward castes or religious minorities. Their findings are worrying.

The events of 2015 alone tell us how iniquitous our criminal justice system is. The wheels of justice roll differently for those with clout and financial resources, starkly at odds with how it does for those who are either economically marginalised, or are part of disadvantaged or excluded groups. With scarce funds and nil influence, where are those on the margins to go should they want to appeal against their fate? In a system such as ours, how can an irrevocable penalty (death) be justified? If miscarriage of justice is established in someone’s case, it will be too late to address the injustice of this miscarriage, as the aggrieved has already been killed!

Since there is no incontrovertible evidence to prove that the death penalty lessens crime-rate, and in view of the cavernous holes in our justice machinery, isn’t it sensible to err on the side of humanity and dismiss the death penalty altogether?

In my personal view, the President’s denial of Memon’s second mercy plea, after all judicial recourse had been exhausted, depicted a moral – dare I say Constitutional – low: keeping the questions of this case and the course of events in mind, the President appears to have ignored the conscience that governs his Constitutional chair, the same conscience that buoys the spirit of our Constitution (and thereby the interests of the Indian people). In his conduct here, President Mukherjee has perhaps demeaned his exalted office, should such an act by a reasonably accepted President even be possible.

Hopefully, the Law Commission, presently in sitting, comes out with its anticipated report, containing recommendations that the government and the Supreme Court address capital punishment, and its existing applications, with the rigour it warrants. Memon’s case aside, one shall wish that anyone hereafter, especially a poor or marginalized individual, would be spared the noose if such a person should fail in the fight for justice. Nothing less will serve the spirit of our lofty Constitution, which, really, is the only sovereign to India’s “collective conscience”.

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Anirudh Belle

Founder & Editor-in-Chief at You Speak India (www.youspeakindia.org), Anirudh is presently reading for a bachelors in law (LL.B.) at the Jindal Global Law School.

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