When there are crimes against society, the state always resorts to retribution

Did Yakub Memon come back to India because of a deal struck with the Indian authorities?

Was he promised some sort of immunity? The honest answer has to be that we don’t know. Some of those involved in his arrest and prosecution say that India reneged on an agreement made with Yakub. Others say that there was never any deal.

 

Personally, while I feel a deep disquiet at the thought that a man who may have actually helped the Indian authorities (as the late B Raman of R&AW said Yakub did) should have been the victim of broken promises and false undertakings, I take the line that Yakub was offered the benefit of due process. He retained lawyers who argued on his behalf before a variety of courts and the Supreme Court even sat in the middle of the night to hear his final appeal.

 

   If all of these courts believed that he was guilty and deserved to be hanged then, I think, as citizens of India, we have to leave it there.

 

   But the doubts over the Yakub case have now been transformed by his defenders into a more generalised campaign against the death penalty. Though the argument is expressed in overwrought language (“state-sponsored terror”, “barbaric”, etc.), its essential contours are familiar to anyone who has taken even a six-month course in moral philosophy. It rests on three pillars: retributive punishment is just revenge and therefore wrong; the state has no right to take a life; and the death penalty is not a deterrent.

 

   The weakest of these pillars is the claim that the state has no right to take a life, which is an assertion not an argument. The claim that the death penalty is not a deterrent seems stronger at first glance. This is traditionally framed as a comparison between those US states that have the death penalty and those that don’t. Statistics show that states with no death penalty actually have a lower murder rate than those that do. So, say its opponents, how can capital punishment be a deterrent?

 

   There are many problems with this argument but the biggest one is this. American studies on recidivism (re-offence) demonstrate that prison is no deterrent either. People who go to jail are much more likely to commit crimes again compared to those who were never jailed.

 

   At an intuitive level, we know this is true. Do we genuinely believe when we send a gangster to jail that he will never commit a crime again because he will be deterred by the thought of a second jail term? In fact, every major Indian gangster (including Dawood) has spent some time in jail. It has neither deterred him nor his associates.

 

"Extra-judicial killings are even more common in India. The authorities routinely kill hundreds of gangsters and terrorists in staged encounters."

   So why then do we bother to jail criminals if the deterrent value is questionable? Well, we do it because we feel that a crime cannot go unpunished. In other words, we do use retribution as a justification for all kinds of punishment, including jail. And we also say that society is safer if a gangster sits in jail. At least he is out of circulation.

 

   Even in the West, the case against capital punishment does not rest on the absence of deterrence. It rests on an individual choice. Either you feel that hanging is a valid punishment or you feel that it is unacceptable. It is a matter of belief, not one that depends on arguments.

 

   Which is fair enough. But history shows us that Western societies only abolish capital punishment when they have reached a certain level of affluence and education. Till then, they are happy to hang criminals.

 

   And when the threat is too great, they junk their opposition to the death penalty. In the US, President Obama, a noted liberal, routinely sends drones to kill terrorists without worrying about due process. His allies in NATO (who have no death penalty in their own societies) are happy to help with these strikes. And when the US kills a major terrorist (say Osama bin Laden), the whole world cheers.

 

   Extra-judicial killings are even more common in India. The authorities routinely kill hundreds of gangsters and terrorists in staged encounters. Unless they kill the wrong people, there is never any significant public protest. We know, for instance, that the Punjab police ended the insurgency in the 1980s through encounters (“bullet for bullet”) and we accept it because we believe there was no other way.

 

    Take another example. If R&AW had managed to kill Dawood in an Osama-style operation, would we have minded? Suppose it had been Tiger Memon (Yakub’s brother) who had been assassinated by a hit team? Would we have even worried about due process? Would we have described it as 'state-sponsored murder', as some people are now describing the death penalty?

 

   When there are crimes against society, the state always resorts to retribution. And death is the ultimate extension of the keep-him-out-of-circulation argument. This is as true of the US as it is of India.

 

   So when I hear the same tired arguments against the death penalty being recycled in India, I always wonder: do these people realise how many alleged criminals and terrorists are killed every week by Indian authorities without any due process at all? Why do we focus on the one man who actually got the full attention of the Indian system?

 

   The truth is that most of us only complain if we believe that the condemned man was not really guilty or deserved a lesser punishment. This is why so few voices were raised when Ajmal Kasab was hanged. Consistency demands that opponents of the death penalty get as upset about Kasab as they do about Yakub. But because we knew that Kasab was guilty, his hanging attracted far fewer protests.

 

   So yes, I can understand the disquiet that many people feel over Yakub's conviction. But if an injustice was done to him, then blame the judicial system. Don't confuse an individual matter with a campaign against the death penalty and then cloak your confusion in overwrought rhetoric.