When Ajmal Amir Kasab, the 26/11 Mumbai attack convict, was hanged on November 21, most of India woke up to the news with a sense of vindication and satisfaction. After all, the person from a rival country, who had killed so many in that brazen attack on India’s financial capital, had finally been punished for his deeds and revenge had been sought. The state’s act of violence (death penalty) had prevailed over the violence unleashed by the villains.
The widespread reactions to Kasab’s secret hanging were telling; a barbaric society was celebrating a barbaric act. However, some light of reason has been provided by home minister Sushil Kumar Shinde who on Sunday, prompted by some activists and intellectuals, said the government must do a rethink on its policy on capital punishment. Indeed, India should take a serious relook at death penalty and move towards abolishing it, even though the law hands out this punishment only in the ‘rarest of rare’ cases. However, what is also needed is a change in the mindset of the people who believe ‘legal’ killing is the appropriate revenge for an unlawful and brutal act.
PHOTO: PTI
There are obvious arguments both for and against capital punishment. That it is absolute and irreversible, that it is barbaric and cruel and that it only furthers the ‘eye for an eye’ ideology tell us why this form of punishment should be done away with. On the other hand, some arguments in favor of death penalty are that it is a serious deterrent, it does not give the criminal a chance to get out of prison and resume his criminal life, and that it is the right ‘lesson’ and punishment for someone who has committed an unusually brutal act.
The oft-repeated arguments aside, what is true is that capital punishment blurs the line between the civilized state and the uncivilized criminal; the state, with all its legal apparatus, does to the criminal exactly what he did to someone else, thus justifying violence. Hence, in effect it is not violence that we are condemning or punishing; it is the illegality of that violence that is being castigated.
Besides the philosophical aspect, however, the practical side of capital punishment is also questionable. You may be hanging a criminal, but with that, you are also giving him the easy way out. He does not have to live his punishment. On the other hand, if instead of death penalties in the rarest of rare cases, the state was to hand out life imprisonment unto death (without parole), wouldn’t the criminal have more time to regret and repent? Wouldn’t it be an even harsher and more meaningful punishment? Imprisonment till death also addresses the risk of the criminal resuming crimes after being released.
In Kasab’s case, there were many arguments for hanging him. One, that he would serve as an example to all those who dare attack India and its sovereignty. Two, that his being in prison will not lead to another Kandahar-like situation where a bunch of terrorists can hold the state to ransom to demand the release of one of their own. To counter these arguments, if Kasab were to be kept in prison till death, he would have served not just as an example but as a living example of the fate of anyone who launches terror attacks on innocents. He would have also served as a living evidence of Pakistan’s involvement in terrorism and a tool at India’s disposal. About the second concern, it is the state’s duty to prevent situations like Kandahar. It is the duty of our intelligence agencies and security bodies to divert such situations. The state cannot abdicate its responsibility by simply hanging terrorists to avoid any potential threats.
Further, Kasab was not the architect or mastermind of the 26/11 attacks. He was a mere puppet, an instrument of implementing somebody else’s plan. Those who actually designed and planned the attack perhaps remain safe somewhere; the puppet, meanwhile, has been hanged. How can that constitute sensible justice?
There is also the question of what constitutes the ‘rarest of rare’. The law of course has its own interpretation based on legalities and precedence. However, to those who have been wronged, to those whose dear ones have been brutally murdered, their case would qualify as the rarest of rare. It is a rare occurrence in their lives. If death penalty is legal and if revenge is the mantra, wouldn’t all victims want their offenders to be awarded the harshest possible punishment? How does one reconcile the sense of justice for victims and the measures of justice under law? Further, death penalty is becoming increasingly subjective and random, as the Supreme Court of India itself acknowledged last week. It is an irrevocable form of punishment, which is subject to the very varied and inconsistent views of different judges. And the rarest of rare clause makes it even more arbitrary.
As a society, the need for collective revenge for a brutal crime justifies capital punishment. But then, for a society that often condemns violence, frequently reiterates the words of Gandhi and teaches its children not to raise their hands, celebrating and glorifying a criminal’s hanging seems dichotomous. While passion and vendetta against many crimes may overpower a sense of rationality, justice and basic humanity, it is imperative that an advanced, mature and peace loving society questions the very basis of capital punishment that propagates violence, albeit legally.
ruhitewari@gmail.com
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