Commute sentence, scrap death penalty

The Supreme Court’s rejection of the curative petition filed by Yakub Memon, prime accused in the 1993 Mumbai serial blasts case, has reopened the debate about capital punishment. Though the Supreme Court is yet to take a final decision on his mercy plea, Memon is near the end of his legal rope. But the case to spare his life is as strong as in every other case of death sentence. Death sentence remains the archaic and vindictive form of punishment for any crime, whatever be the degree and nature of the crime. India’s laws and machinery for dispensation of justice are yet to catch up with the world, where most countries have either abolished or suspended death sentences. Enlightened and civilised criminal jurisprudence does not consist in taking life, as it is no deterrent against crime. The state has no power to frame laws that kill people, nor the power to execute them.

In Memon’s case, the sentence is wrong not just as a matter of principle. The death sentences awarded to 10 others, who had actually planted the bombs and were convicted along with him, were commuted to life terms by the Supreme Court. The prosecution has said that Dawood Ibrahim and Tiger Memon were the main culprits, and Yakub Memon only had a part in the conspiracy. In fact, he aided the prosecution by coming back to India to face trial, after fleeing to Pakistan.  The court has used different yardsticks in different cases to confirm or negate death sentences. It has been inconsistent, irrational and unconvincing in its decisions on capital punishment. It has let death row convicts off the hook, citing delays in deciding mercy petitions, in the case of three convicts in the Rajiv Gandhi assassination case, but not always. The idea of awarding death penalty in the rarest of rare cases is interpreted differently by different courts and different judges. It is a subjective norm and is more a whim than a legal principle, and should be abandoned.

While the decisions of courts on death sentences have been inconsistent, the executive’s actions have also been arbitrary and even political. The death sentence on Nalini, convicted in the Rajiv Gandhi assassination case, was commuted on Congress President Sonia Gandhi’s personal intervention, and the sentences of three others in the case were commuted by the Supreme Court. But Afzal Guru, convicted in the parliament attack case, was secretly hanged to death. The Manmohan Singh government took the decision but even its ally, the Omar Abdullah government in J&K, called it a political decision. What they show is that subjective assessments, politics and other non-judicial factors decide the fate of convicts. They become more glaring with each case of hanging. Memon should not be hanged and his sentence should be commuted to life term, and death penalty should be scrapped from the statute book.