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August 01, 2015

Retributive Justice Is Injustice, Your Lordships

[This is an AHRC Article. Republished in Countercurrents.]
Yakub Memon is dead and buried. He was legally murdered on Thursday, 30 July 2015. This was after the Supreme Court dismissed the final petition put forward by a group of eminent lawyers pleading postponement of the sentence in a dramatic hearing that took place in the early hours of Thursday, just 2 hours before Yakub was hanged.

At the face of it, the Indian justice system often ticks boxes. In this case, it is one that even listened to the plea of a terror convict headed for the gallows. Dig only a little and one will begin noting the façade. Dig even more and the Indian criminal justice system is revealed as a retributive system seeking revenge, one that does not deliver justice.


How can capital punishment, killing someone to avenge killings or similar heinous crimes, continue in any civilized society? Does this not boil down to saying: okay, you killed or played a role in killing people, so now we are going to kill you, albeit under the pretence of this killing being “under due process of law”? Look at the flimsy logic of awarding death sentence in “rarest of the rare cases” as something meant to act as a deterrent. This logic never did get any support from empirical studies, and is laid bare in Yakub’s case.

Consider also the absurdity of killing the convict with most “painless and quickest”, in other words “humane”, way. The idea of killing someone “humanely” should bring out the paradox that it is. It should further make one look back at the idea of capital punishment being a deterrent against humans committing the heinous crimes for which such punishment is awarded. Why not kill the convict in the most inhuman, tortuous, and barbaric ways, preferably in public view, as it was done in medieval times, if it really is a deterrent. Would that not “deter” would be criminals much more than a “humane” killing? This is, after all, why countries like Saudi Arabia argue in favour of public beheadings. Why not borrow the entire practice from such dictatorships instead of only taking the killing and leaving their methods behind?

Let us consider, also, the flip-flop of the Indian criminal justice system in terms of capital punishment. The system has been oscillating from being humane and adding grounds for commuting death sentence to life terms on one hand to the very opposite on the other for a while now. Sometimes it has recognized that undue delay in deciding on mercy petitions of death row convicts amounts to torture, as it did in Shatrughan Chauhan vs. Union of India case on 21 January 2014, in a verdict of a 3-member bench headed by then Chief Justice P. Sathasivam. In doing so the bench over-turned a regressive order delivered by a 2-member bench of the same Court in April 2013. The April 2013 verdict in the Devender Pal Singh Bhullar case had held that those sentenced to death under anti-terror laws could not invoke the argument of undue delay for commutation. The January 2014 judgment overturned this by holding the nature of crime irrelevant in deciding the impact of the delay. And now, the same Court has dismissed the mercy petition of Yakub Memon, despite his having been on death row for about 8 years out of the 22 years he had spent inside prison.

Unfortunately, the randomness is not that random. All the recent hangings showcase a discernible pattern, one of bloodthirsty, frenzied, mobs seeking revenge and the Indian Judiciary delivering it to them. Did the Supreme Court not hang Afzal Guru for “satisfying the collective conscience of the nation”, with nothing more than circumstantial evidences to seal his fate? But then, it did not find Dara Singh’s ghastly act of burning Christian priest Graham Staines and his two sons alive in Orissa in 1999 rarest of rare and gave him a lifer. No one deserves to get killed by the state, not even Dara Singh but that is not the point. The real point is how the increasing sectarianism of the society has started getting reflected in judiciary.

Add to this the apparent randomness in verdicts delivered on the lives of death row convicts and the system starts looking other than just. Consider, the possibilities if Yakub Memon’s mercy petition had reached a bench of comprising a different set of justices, such as those retired justices who had sought commutation of Yakub’s death sentence. Many such retired judges signed the last mercy petition on Yakub’s behalf. This is where this apparent randomness betrays the design behind it, the design that plays out in the formation of benches, in the frenzy that system helps to build in by ‘leaking’ the date of death warrant and so on.

One finds the same sickness again and again in similar cases: awarding the death sentence and its execution in India is linked to mobs baying for blood, mostly the blood of the minorities and other marginalised sections. The increasing communalisation of the society and media is only going to add more muscle to such murderous mobs, and their impact throughout society and in the Judiciary itself.

Yakub Memon is dead and gone. It is just that his death has brought the debate on capital punishment back on the table and it is time the civil society makes a final push for its abolishment. If it fails, there will, from time to time, be dramatic midnight hearings that make the system look superficially like a just one. And the legal murders following pretentious hearings will not stop.

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