A frequent target of terror attacks, Israel realized the futility of capital punishment more than five decades ago. Why is India still clinging to the death penalty?
By Abhay Vaidya
Should India persist with the death penalty for the “rarest of rare” crimes? The issue was recently brought into focus by the Yakub Memon hanging and continues to be debated although he was committed to the gallows on July 30. There certainly seems to be no unanimity when it comes to capital punishment. People differing with the decision in Yakub’s case included not just a section of ordinary folk but also people of eminence, including lawyers and former judges, who had petitioned President Pranab Mukherjee for clemency for Memon.
The petitions, which were forwarded to the home ministry, had no effect on the Narendra Modi government as it was determined to hang Yakub. This was justified by senior cabinet minister Arun Jaitley in a televised interview with Rajdeep Sardesai. Jaitley said that multiple benches of the Supreme Court had looked into all aspects of the case and had upheld the death sentence for Yakub. There was, therefore, no question of any miscarriage of justice. Jaitley also clarified that the government was not in favor of abolishing capital punishment in India, given the context of terrorism in the country. As he explained, some 150 countries which had abolished the death penalty were mostly those which did not suffer from terrorism or strife as did India.
ISRAEL’S REALIZATION
Jaitley got it wrong because even a nation like Israel which has arguably seen far more terror attacks and suicide bombings than India, has observed a moratorium on capital punishment for more than five decades now. The last execution in Israel was that of the Nazi criminal, Adolf Eichmann, in 1962 for his role in the Holocaust.
The Israeli military and its intelligence agency, Mossad, have been known to hunt and kill terrorists hiding in other countries,
irrespective of the repercussions. At home, however, Israel has refrained from capital punishment although a provision exists in the law.
This is because of the realization in Israel that the death penalty has proved futile as a deterrent. It was also viewed as counter-productive early on in the nation’s history because “there was always real fear in Israel of the powerful effects of martyrdom,” says Edna Ullmann-Margalit, Professor of Philosophy at the Hebrew University of Jerusalem, in a paper on the subject.
India needs to draw lessons from the example of Israel. To continue to cling to the death penalty in today’s day and age is a sign of an un-evolved vision. The death penalty today has not only become a blunt, worthless instrument, but also counter-productive, especially in cases of terrorism. It is also as outdated an idea as slavery and the worst manifestations of the caste system.
A terrorist who is barely in his 20s and 30s is so thoroughly brainwashed by his handlers that he has already embraced death before even setting out on his mission of mayhem. What greatness and real purpose is then served through capital punishment in such cases? That too, after managing to accidentally nab a Kasab or a Yakub Memon?
Till his last breath, Memon maintained that he was being punished for his brother “Tiger” Memon’s crime and had been betrayed by the Indian establishment which had promised him a lighter sentence in exchange for his surrender, cooperation and assistance in the investigations. This version, corroborated by the accounts of some ex-RAW officials, notably late B Raman, gained considerable credence, further weakening the case for his execution.
CASE FOR ABOLITION
What about the huge amount of time and money spent by the judiciary, the president’s office, the state and central governments and the various ministries and the PMO in back-and-forth consultations in deciding Yakub’s fate? What about the huge amount of time, money and resources spent by the police department in preparing for the execution, the funeral and then anticipating the consequences of the death penalty? What about the polarizing impact of the Yakub Memon execution on Indian society?
What about the strong arguments of miscarriage of justice in Yakub’s case?
“What about justice for the victims” is the question that is often asked by those who strongly favour the death penalty. The bigger tragedy is that the state itself is often found wanting in providing adequate compensation and rehabilitation to the victims of
terror attacks. During a recent televised debate, a victim who was grievously injured in the bomb blast near the Bombay Stock Exchange in 1993 complained that no one from the government had even once reached out to him in the last 22 years to ask about his welfare. In contrast, look at the manner in which industrialist Rata Tata cared for the victims of the 26/11 Mumbai terror attacks, visiting the homes of the people killed in the attack and putting in place a robust compensation and rehabilitation package for the victims and their families.
There are other reasons for the abolition of the death penalty. A state that decides to abolish capital punishment stands elevated to a much higher moral and philosophical plane. Significantly, it eliminates the possibility of miscarriages of justice and paves the way for repentance. The abolition of the death penalty symbolizes strength as there is strength in forgiveness.
By sparing a criminal’s life, it symbolizes the victory of good over evil—a stand amplified in Indian scriptures through the story of the dreaded brigand Valya who, after years of killing and looting people, repented his crimes and transformed himself into Valmiki, the author of the Ramayana.
The underlying message here is that the ultimate beneficiary in the abolition of the death penalty is society and the human civilization at large.
As per UN statistics, 102 nations have abolished the death penalty for all crimes, while 36 retain it in both law and practice. Six nations have abolished it but retain it for war crimes and other exceptional or special circumstances and 51 nations have not used it for at least 10 years or are under a moratorium.
India is among the nations along with the US, China and Japan in upholding the death penalty, although it was perceived as moving towards a moratorium. This was because of just one execution in the 13 years between 1999 and 2011. That perception changed with three executions in the last four years (Ajmal Kasab, Afzal Guru and Yakub Memon).
The commutation of Yakub’s death sentence to life imprisonment would have marked a worthy departure from the past. It would have helped eliminate the possibility of a miscarriage of justice, if any. It would have helped clear the perception of a bias against Muslims. It would have gone a long way towards the abolition of the death penalty in India. And finally, it could have opened up the possibility of the surrender of India’s most-wanted criminals, Dawood Ibrahim and Tiger Memon.
As is evident from Israel’s example, there is enormous self-interest in moving away from the death penalty.