ENIGMA OF DEATH

Yakub Abdul Razak Memon, a convict in the 1993 Bombay Blasts Case, is hanged. Especially in the days and months leading up to the hanging, things happened as if the time set for the deed by a trial court was too sacred to be violated. So much so that his last writ petition was heard in the Supreme Court— during the wee hours of 30 July, hours before his hanging—rather than at the judges’ residences, as was the practice before, because it would then result in a few more legal procedures which could’ve delayed the decision.

The cover story of Frontline magazine mentions that the restless Attorney General repeatedly said, “After all, how long one can wait?” when Memon’s counsel sought a stay on his death warrant in order to give the court some time to reasonably apply its mind to the issues in the petition. It was manifest that government was impatient to hang Yakub Memon. In fact, the Judiciary and the Executive of our country never gave him enough time to exhaust all of his legal remedies. There were numerous instances where even the most respected constitutional institutions denied him the necessary space to comprehend and chart out his further legal means. What makes Memon more deserving to be executed than many other convicts who committed such crimes?

These questions will necessarily bring into question the very procedures followed and the efficacy of executions. Sadly, the media as well as the academia create brouhaha over death penalty only in times like these and slowly the debates fade into background while only a handful of dedicated activists and insiders fight persistently against it. However, notwithstanding the ephemerality of the issue, it is still imperative to understand why executing criminals is wrong.

To take a life when a life has been lost is revenge, it is not justice.

– Desmond Tutu

Before even arguing against the need for capital punishment, are the death sentences awarded properly in the first place? India’s criminal justice system, and its social, judicial and economic prejudices make it very tough to impose death sentence fairly. For example, what makes the convicts of Nirbhaya case so worthy of executing while hundreds of such criminals not? The Judiciary is vulnerable to the inflamed public opinion. But for the mass-scale protests ensued in Delhi, these criminals would’ve never committed the ‘rarest of the rare’ crime—the doctrine which the Supreme Court invokes to award death sentence—in the opinion of the Supreme Court. Criminals are hanged not for evidence and hard reasoning but because people want to take revenge.

It is also a fact that the lower courts of our country so often consider crimes as ‘rarest of the rare’.  Hundreds of death sentences were awarded in the past few years but only a handful (less than five) was finally sentenced.

Add to this the ubiquitous danger of errors committed by investigating agencies and judicial bodies in the course of a case. Evidence more often than not gets distorted over the lengthy course of criminal trial. And the principle followed by the courts—rarest of the rare doctrine—introduced arbitrariness in the system for there is no concrete parameter to classify which is what. Because the whole system is put in place and maintained by humans, a degree of error is a given.

Talk about economic status and justice. With soaring financial burden facing an accused, no normal person dares to move any court of law, let alone the Supreme Court.

Brinda Karat, a polit-bureau member of the CPI makes a curious case: States like Punjab and Tamil Nadu mobilise their MLAs against death sentence and even demand the release of death row inmates; and immediately the death sentence of Rajiv Gandhi killers and former Punjab CM Beant Singh killers was commuted to Life imprisonment. Whereas in the Afzal Guru case, Kashmir’s government was simply ignored. Politics increasingly decide who gets to live and who doesn’t. With such uncertainty over the credibility of sentencing, odds are that at least a few innocent individuals are denied their right to live.

Why should a criminal even be robbed of his/her life at all? Oftentimes, they answer, it is to deter people against committing such heinous crimes in the future. According to the suave Parliamentarian Shashi Tharoor, statistics belie this claim. The relation between the rate of crimes and the rate of executions is ambiguous at best. Even if deterrence were real, execution of an innocent or a criminal makes the same impact on people. Sooner or later scapegoats must die.

Alright, so you want an eye for an eye? Is this some Roman Empire or what?