I can never understand a judicial bloodlust. I can understand the desire for revenge, of course. Suppose somebody killed somebody you loved. It is only human to sometimes be so angered that you want to strike down the murderer on the spot. But usually, that sort of emotion begins to fade with the passage of time. So, I have difficulty understanding the demand for the execution of a convicted murderer.
Those who claim to subscribe to such feelings often justify them in terms of closure. Once the murderer is dead, they say, they feel that justice has been done and they need not feel as much grief. Certainly, the demands for the execution of Ajmal Kasab have been framed in those terms. But will the death of Kasab offer any real closure to those who mourn his victims? Of the 12 terrorists who spread mayhem in Bombay on 26/11, eleven were killed within 72 hours. But have their deaths offered any kind of closure to the families of those who fell to their bullets? Does a mother who lost a son at the Taj feel better because the four terrorists who attacked the hotel are dead? I don’t know. And I have still to be convinced by the closure argument.
The case for the death penalty is a difficult one to make at a philosophical level. Most advanced countries have abolished the death penalty. In the US, support for the death penalty is greatest among the least educated and the traditional battle is between liberals who want to see it abolished and reactionaries who support the execution of criminals.
Because philosophical justifications of the death penalty are rarely framed in terms of revenge or bloodlust, they are usually based on the deterrence argument. The purpose of all punishment is only partly to punish individual criminals. Mostly, punishment works as a deterrent to would-be criminals. If, for instance, I know that I will spend a week in jail for robbing a bank, I might consider going ahead. If, on the other hand, I realise that I might be locked up for 12 years, I may drop the idea.
As a general principle, deterrence works. Countries with swift implementation of laws and very severe punishments (Singapore, for instance) have lower crime rates than those where punishments are mild and inefficiently administered.
But the exception is murder. Research shows that there is no correlation between the murder rate and the death penalty. In the US, for example, states that impose the death penalty do not necessarily have lower murder rates than states with no death penalty. In many Western European countries, the murder rate has actually gone down after the death penalty was abolished.
If deterrence is a statistically unsupported argument then the case for arguing that the death penalty will deter potential suicide bombers and fidayeen must be especially weak. The terrorist who attacked Bombay knew that they were going to die. Eleven are already dead. Will it really deter potential terrorists if Kasab is executed?
Because the case against the death penalty is a strong one, we must be clear where we stand. My view is that it is a decision for the conscience of each society. For better or worse, India has decided to execute criminals in the ‘rarest of the rare’ cases or for those crimes that are regarded as particularly reprehensible by society.
I respect this law and while my own views are somewhat ambivalent, I think that it is incumbent on anyone who has respect for the judicial process to go along with the judiciary’s decisions. Thus, while I doubt that the execution of Kasab will deter potential terrorists or offer any special closure to the families of his victims, I do not dispute that his crime is among ‘the rarest of the rare’. And so, we must follow the course of the law and execute him as soon as is legally permissible.
| "Yes, we should hang Kasab without unnecessary delays. And exactly the same argument applies in the case of Afzal Guru. A state must be based on laws and not on exceptions." |
Once a law exists, a trial is held and a verdict is delivered, then the time for arguments about the moral basis of the death penalty has passed. The law of the land must be respected.
Which brings us, inevitably, to the case of Afzal Guru. Those who believe that Guru should not be hanged offer the following arguments: that he is innocent; that he may be guilty but that his crime is not so serious as to deserve the death penalty; and that Kashmir will rise up if he is executed.
Not one of these arguments strikes me as being convincing enough to warrant a stay of execution. First of all, I don’t think he is innocent. I completely reject the absurd thesis advanced by some loonies of a conspiratorial bent of mind, that the Parliament attack was staged by Indian security forces themselves. Nor do I have much time for the argument that Guru was framed by the police.
The second argument may have slightly more merit. You could say that while Guru was part of the conspiracy, he was not actually one of the attackers of Parliament. Because we were unable to bring any of the front-line attackers to trial, we vented our anger on a lesser conspirator and gave him a harsh punishment that he did not really deserve.
If the first argument is valid and Guru is actually innocent, then this is not a case for commuting his death sentence. The verdict of guilty against him should be overturned. As the evidence to do this simply does not exist, this is a non-starter.
The second argument is essentially one of judicial fallibility. Yes, the judges were right to find him guilty but wrong to go so far in punishing him. My problem with this argument is that once you start quibbling with the quantum of punishment approved by the highest courts in the land, there is no end to the quibbling. We may disagree with the quantum of sentence but once that sentence has been handed down, we are obliged to respect it.
The third argument strikes me as being the least satisfactory. Perhaps Kashmir will go up in flames if Afzal Guru is hanged. On the other hand, this could be an overblown fear. Either way, it should not matter. One of the guiding principles of our legal system is that cases should be judged and punishments handed down only on the basis of the facts. It should be irrelevant whether a verdict is unpopular or an accused could become a martyr. Justice is not about popularity. It is about fairness. Even if Kashmir does go up in flames, this is a price worth paying to preserve the integrity of our judicial system.
Nothing that has to do with the death penalty is ever simple or straightforward. I am ambivalent about the philosophical justification for or the practical deterrence of the death penalty. But this is an argument for reconsidering the law in its entirety. It is not an argument for applying it selectively or for being lenient in certain cases.
Similarly, I concede that some people may feel the judges were too harsh with Afzal Guru. But once the legal process has been consulted at all levels, and the judges have handed down their verdict, we are obliged to live with the judgement. To selectively question politically unpopular judgements is a recipe for disaster.
So, yes, we should hang Kasab without unnecessary delays. And exactly the same argument applies in the case of Afzal Guru. A state must be based on laws and not on exceptions.