What is at Stake is Our Commitment to National Self-Improvement

Death penalty’s retentionist institutions, led by the judiciary, have pushed India back to its primitive past.

Minutes before a three-judge bench of the Supreme Court dismissed Yakub Memon’s petition that had challenged the procedural lacunae in his earlier curative plea, I was watching the execution of Amon Goeth, the cruel SS captain and commandant of Plaszow concentration camp in Nazi-occupied Poland. The American GIs botched twice but executed him by hanging on the third attempt.

Unlike Goeth, 1993 Mumbai serial blasts convict Yakub Memon, who is now hours away from walking the last few steps to the gallows in an underground chamber of Nagpur central prison, will perhaps not give three chances to his executioners in the jail. India has for so long clung on to death by hanging that Yakub’s executioners will not falter.

Institutions as Executioners

There were other executioners who had foretold his death by hanging – the President of India who has rejected more mercy petitions than he has signed on presidential decrees; the executive, which sat silent even when its investigating agencies had informally sounded out Yakub after his “arrest” that they would not press for death penalty; the judiciary whose vain men in black robes had all the time to bicker over procedural matters but did not have the time to reflect on their black deed to push a broken man’s neck into the dangling noose; the Maharashtra governor who wasted not a moment to dismiss Yakub’s clemency plea once the unrelentingly severe judges of the Supreme Court, perhaps taking a cue from the executive, gave no humane consideration to the petition; and above all, a section of the public salivating over the application of the ancient principle of “an eye for an eye.”

For each of the institutions of a democratic state there was no clash of morals, for each of the human agents, Yakub’s hanging sits well with the conception that justice requires the payment in kind. For each of the individuals, there was a choice before them: back capital punishment, which they did, or allow Yakub to serve life imprisonment without parole till his death. For them, there was no guidance from reason to distinguish the better form of punishment than the worse. The judges of the Supreme Court found themselves unable to express a unified position on the validity of the death penalty.

Judicial Capitulation

Freedom-spirited Indians have always believed that amidst the rottenness of the legislature and the executive, the judiciary is the one state institution that would usually come to the defence of individuals with everything piled up against them. The Yakub judgment shows that instead of being the beacon of hope, the judiciary has turned retributive.

Indeed, instead of being the agent of social and jurisprudential change for the better, the judiciary has taken us many, many years backward when Indians would be described as “barbarians” for their scant respect for life. After all, crime and punishment are functionally related to the culture in which they occur. The judiciary has failed us in the larger “civilising mission”. Mohandas Karamchand Gandhi would have said: “The weak can never forgive. Forgiveness is the attribute of the strong.”

As the debate over the retention of the death penalty in India, analysed, dissected, lacerated and mangled for years, becomes more and more politically charged, what is perhaps now at stake is our faith and commitment to national self-improvement. The judiciary has shaken that faith as we slide into the dark recesses of our primitive past.