I was woken up yesterday morning by my phone beeping. A text message from Shashikumar, Amnesty India’s programme director: “Supreme Court likely to confirm Ajmal Kasab’s death sentence today”. No surprises there. The death penalty is on the statute books and there was little doubt that the Supreme Court would decide to apply it in this case.
At one level it put me in touch with my deeply held conviction (that I share with Amnesty International) “The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. It violates the right to life as proclaimed in the Universal Declaration of Human Rights.”
But it also brought up for me the horrors of the 26/11 atrocity and with it an anxiety. I remembered the many conversations with friends where “But if we don’t have the death penalty how will we deal with Kasab?” was considered the ultimate argument in favour of the death penalty. Can I find a way of staying with my conviction and articulating it without in any way diminishing the anguish and outrage that the atrocity rightfully evokes? Without somewhere in my heart finding reasons to explain the actions and motivations of Kasab, his murderous band of terrorists and their masters in Pakistan?
Arriving at work, I took heart in the fact that the Times of India chose yesterday (of all days!) to carry an interview with the retired chief justice of the Delhi High court Justice AP Shah. “Public opinion in India can no longer ignore the global movement in favour of abolition of the death penalty.” He went on to say, “It’s time we accepted that capital punishment neither has any deterrent effect, nor can it be counted as a preventive measure. The criterion of rarest of rare cases hasn’t resulted in any satisfactory solution. The Supreme Court’s attempt to regulate capital punishment has been unsuccessful on its own terms. Courts and governments worldwide have tried and failed to lay down satisfactory and clear criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty.”
As human beings, we may sometimes harbour beliefs that are not backed by evidence or fact. But even in the eyes of those who believe that the death penalty does serve as a deterrent, it would be hard to imagine Kasab and his companions – hard core terrorists brainwashed into hatred and trained in mass murder – being deterred by the thought that they would be executed if caught.
The debate on the death penalty in India is an old one. I was surprised to find that, although they articulated their position in different ways, both Gandhi and Ambedkar opposed it on principles that applied to all cases without exception, regardless of the nature of the crime or the characteristics of the offender.
Gandhi: “I cannot in all conscience agree to anyone being sent to the gallows…God alone can take life because he alone gives it.”
Ambedkar: “This country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.”
So why do we still have the death penalty? Apart from the (false) claims of its deterrent effect, perhaps it is the notion that without the death penalty, we as a nation will not be able to respond to monstrous crimes and crimes against the nation. It is clearly the “enormity of the crime”, to quote the Supreme Court, that staggers the mind and sends it in the pursuit of a “fitting response”, and nothing short of the ultimate seems to be appropriate. To many of our fellow citizens, to even suggest anything less than the death penalty for Kasab seems to somehow diminish the horror and take away from the enormity of his crimes.
But what can a decent human being (or indeed a society, a nation) do in response to such horror that would not be an affront to her own decency? That would not turn our very human desire for revenge into the mirror image of a terrorist’s willingness to kill? That would not let our response be driven by our fear of being seen as irresolute?
If we hang Kasab we will not deter future terrorists. If we hang Kasab we will not prevent future acts of terrorism. If we hang Kasab we will not give a fitting response to an enormous crime. If we hang Kasab, we will merely apply a provision in our law books that ought not to be there in the first place.
Imprison Kasab for the full duration of his life. Abolish the death penalty.
(Author is associated with Amnesty International as a Chief Executive in India)