Death Penalty: Forget Memon and Think about the Dangers from a Subjective Judiciary!

Yakub Memon is no more. He was hanged till his death, by the state. Every killing, be it by a terrorist, a state, or by a common murderer raises various questions. These questions are triggered by the killings, but goes beyond the individual cases. In this post, I will deal with some of the questions related to the subjective exercise of the power to grant and execute death penalty, coming up in the backdrop of the latest hanging, of Yakub Memon. However, let us keep Yakub Memon out, as any reference to individual cases will only prejudice the views and harm the debate.

First question is about the death penalty itself. Undoubtedly, death penalty is not the only punishment for murders. Not all murders or even terrorists are executed. The debate about the death penalty will continue for a long time. Unfortunately, most people approach the issue very subjectively, in the light of specific executions. A lot of people seem to think nothing short of death is punishment enough. I will not go into details of the death penalty debate here (Those who are still interested in my views may read the 2011 post, Politics of Death Penalty and Mercy Petitions). Suffice to say, death penalty is a part of our legal system, as of today.

Without getting into the detailed debate on death penalty, let us consider the second question, why a lot of people support the executions, so vociferously? Is it because we are a blood thirsty people? Is it because we believe in the eye-for-an-eye justice system? Many people justify their support by citing the sufferings of the victims. In other words, the victims’ sufferings come to an end only by executing the revenge, by hanging the convict. When we adopt that logic aren’t we also justifying the original murder if it was carried out as a revenge for some perceived injustice to some victims? For example, many terror and extremist acts are carried out as revenge for the injustices meted out to some or other section of people!  The only logical counter argument is that it is the state alone that has a monopoly in revenge killings on behalf of any victim!

Third question is about the subjectivity in awarding capital punishment. Whether we approve it or not, so long as the death penalty is a part of our laws this question remains even more critical than the first two questions. If we adopt a law that every person convicted for murder will be hanged, then such a question will not be relevant. Similarly, if the law says only for such and such type of murders there will be death penalty, there won’t be any confusion. Our Supreme Court tried to address this issue by introducing a law that said death penalty will be awarded only in the rarest of rare cases. In other words, even the Apex Court felt that the death penalty should not be a natural choice for murders, as in an eye-for-an-eye kind of justice system.

                Nobody can argue that the justice system is a perfect one. If it was so, why we need appeals? The subjectivity of judges is an inevitable part of the justice delivery. In cases after cases, we have seen how the rich and powerful manage to stay out of prisons or punishments. We have also seen any number of convictions or penalties getting overturned in the appeals. Those who support death penalty by citing the objectivity of our judicial process only need to read the Supreme Court verdict in the Akshardham terror case where some people got saved after being awarded with the death penalty by the ‘objective’ lower judiciary and High Court. (Those who are interested may like to read my posts on this subject, Supreme Court Verdict in Akshardham Terror Case- Some Thoughts and Counter-Terrorism - POTA Style).  If the judiciary can make such grave errors in appreciating the evidences while awarding death penalty, as in the case of Akshardham terror case, the society has to be really concerned about the implications.

                Talking about the subjectivity, another question arises as to what are rarest of rare cases. Despite many judicial pronouncements on the subject there are no logical rules that applies across the cases.  If there is any objectivity is deciding what is a rarest of rare case, we would not have found those who were convicted for Naroda Patya massacre of 97 innocent people (including women and children) during 2002 Gujarat riots escaping gallows (I know some readers will accuse me of being selective in talking about 2002 while keeping silence about 1984. Let me remind, the judicial system has not even convicted people responsible for 1984. The quantum of punishment comes only after that). Similarly, a Kerala Court failed to see a planned murder that shook the conscience of Kerala, conducted with utmost cruelty, by a professional killer gang maintained by a political party, merely because the victim dared to oppose that political party, as rarest of rare!  I am not suggesting the convicted criminals in these cases should be hanged. What I am suggesting is the selective grant of death penalties, by a subjective judiciary.

                Fourth question relates to the mercy petitions.  What is the logic behind mercy petitions? Why should the Executive be allowed to undo a judicial verdict? Every government in power are concerned about vote banks and political fallout, more than furthering justice. A judiciary at least have the semblance of objectivity, but to entrust such a power to executive is simply dangerous. If the judicial verdicts has the finality, we can also avoid politicization of hanging, which makes us look like a blood thirsty people.

                Fifth question relates to the accountability for any delay in deciding mercy petitions.  It would be inappropriate for me to talk about Dr. Kalam and his unwillingness to decide mercy petitions, throughout his stay in the Rashtrapati Bhawan, as we bury him today. That apart, governments and Presidents have dithered for unreasonable periods, in deciding mercy petitions. Even the Supreme Court has agreed to this issues in principle. Supreme Court of India had quoted with approval the following words of the U.S. Supreme Court:

“The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanising effects of the lengthy imprisonment prior to execution. The prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of the sentence and the actual infliction of death” (You may refer my 2011 post, Delay in Considering Mercy Petitions- No Less a Crime).

As a result, the Supreme Court of India has treated the delay in deciding mercy petitions as a valid ground for setting aside many death penalties. It is a mere coincidence that on the same day it decided to send Yakub Memon to the gallows, the Supreme Court also decided to reject Central Govt’s plea against the commutation of death penalty of three terrorists involved in the murder of Rajiv Gandhi and others! The reason for the commutation was the delay in deciding their mercy petitions. Another prominent example is the case of Devinderpal Singh Bhullar who was awarded death penalty for killing 30 people in a terrorist attack. The Supreme Court commuted the death penalty of Bhullar, again on the ground of inordinate delay in deciding mercy petitions. Again, let me clarify, I am not complaining about the commutations, but pointing out the subjectivity and selectivity in making those decisions by which the judiciary had undone its own decisions to award death penalty. The justice would have served better if the Supreme Court fixed accountability or time limits for deciding a mercy petition instead of being selective in commuting the sentences. I have no hesitation to suggest the decisions to commute death penalties had to do as much with the so called public opinion and political clamoring as the delay in deciding mercy petitions.

                At least in the matter of life and death of a person, albeit a convicted person, let us not leave it to the whims and fancies of individual judges or governments of the day. Let us not stop the debate on these issues, now that Yakub Memon is hanged, until another person approaches the gallows. Let us have some objective rules on the death penalty so that each time a person is hanged or not awarded the death penalty, it serves the purpose of furthering justice. A subjective exercise of power by even judiciary is not in anybody’s interest.  

PS: When I tweeted about the total silence on certain serious allegations raised by an Ex Judge of the Supreme Court against the present Chief Justice and the government, somebody suggested that the Ex Judge is a maverick and we need not take his allegations seriously. Another serving Judge shared his fantasies about what he would do if he ever become a dictator! Now, when we know we have mavericks even in the Supreme Court, would we still prefer their idiosyncrasies, rather than well defined legal principles, to decide the life and death issues?