Hanging prompts debate over death penalty
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On July 30, Yakub Memon, a chartered accountant and the brother of a notorious gangster now living in self-imposed exile, was hanged for complicity in the planning and execution of serial bomb blasts that killed 257 people in Mumbai in 1993. The hanging, India鈥檚 first in three years, has prompted reactions ranging from dismay to scarcely concealed bloodlust. And it has intensified the domestic debate over the death penalty.
To be sure, no one suggests that India鈥檚 judicial system did not function properly in Memon鈥檚 case. He was convicted according to due process of law, and his punishment was in accordance with valid statutes. During his 21 years behind bars, Memon exhausted every possible appeal available to him, including one for presidential clemency. The Supreme Court even held an emergency hearing at 2:30 in the morning, just hours before the execution was set to occur, before deciding to allow it to proceed.
But the question remains: Should capital punishment be on the books at all?
As an opposition legislator, I attracted considerable opprobrium for voicing my opinion, on the morning of Memon鈥檚 hanging, that it should not be.
My view is not popular in India, and my own party disclaimed my statement. But my position is based on ample evidence that the death penalty does not actually deter the crimes it punishes. Data collected by the Death Penalty Project at Delhi鈥檚 National Law University demonstrate conclusively that there is no statistical correlation between applying the death penalty and preventing murder. This evidence echoes similar findings in other countries.
My statements were also motivated by problems with the way capital punishment is imposed in India. The Supreme Court has declared that the death penalty should be applied only in the 鈥渞arest of the rare鈥 cases. And, indeed, the last three executions in the country stemmed from terrorist offenses that threatened or took a large number of lives.
But the decision to impose capital punishment remains highly subjective. Indeed, whether the death penalty is meted out depends on a number of variables, beginning with judicial and social biases. Public outrage 鈥 potentially fueled by inflammatory media coverage 鈥 can push for a harsher sentence, especially in cases relating to terrorism or crimes against women. Economic status also comes into play, with poor criminals being executed much more often than wealthy ones, not least because they cannot afford high-quality legal representation. And the president鈥檚 decision to commute a sentence is subjective.
A 1983 case held that one way to determine whether a crime meets the 鈥渞arest of the rare鈥 requirement is whether the community鈥檚 鈥渃ollective conscience鈥 has been 鈥渟o shocked that it expects those wielding judicial power to inflict the death penalty, regardless of their personal opinions.鈥 This leaves much room for the arbitrary and disproportionate application of capital punishment.
Ambiguity and subjectivity
Ambiguity and subjectivity have no place in matters of life and death. Yet, when it comes to the imposition of capital punishment, both are prominent. That makes it all the more difficult to justify the practice.
Just a couple of weeks before Memon鈥檚 execution, India鈥檚 Law Commission, a government body composed of retired judges and legal experts that works for legal reform, organized consultations to assess the effectiveness of the provisions governing the death penalty in India and the purpose of the penalty itself.
Unsurprisingly, based on the evidence and the opinions presented at the Law Commission鈥檚 hearings, there was a general consensus that the courts are unable to adopt a fair and non-discriminatory approach to the death penalty, and support for its abolition was overwhelming.
That will not happen any time soon. The Indian public overwhelmingly supports the death penalty, especially for convicted terrorists.
Moreover, it has been suggested that the alternative to the death penalty 鈥 life imprisonment 鈥 would make India vulnerable to hijackings and other assaults by terrorist groups attempting to free their jailed comrades. In the face of such security concerns, my argument that taking a human life is wrong, and that the state should not compound criminal wrongdoing with its own, found little resonance.
It may be tempting to declare that anyone who kills (or participates in killing) innocent people does not deserve to live. But is revenge a worthy motive for a state鈥檚 actions, especially toward its own citizens?
India鈥檚 greatest son Mahatma Gandhi observed that 鈥渁n eye for an eye makes the whole world blind.鈥 For now, India remains blind to the case for abolishing the death penalty. One day, I am sure, it will see the light. Until then, the lonely battle for its abolition must continue.
Shashi Tharoor, a former UN under-secretary-general, is a member of India鈥檚 parliament for the Congress party and Chairman of the Parliamentary Standing Committee on External Affairs. Copyright: Project Syndicate, 2015.
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