Life over death

The special trial court that heard the 26/11 Mumbai terror attack case has awarded death penalty to Mohammad Ajmal Kasab, the lone surviving terrorist among the 10 Lashkar-e-Toiba operatives from Pakistan who had carried out the dastardly attacks.
Special judge M L Tahilyani, who conducted the trial, perhaps did not have other options under relevant Indian laws as he pronounced the sentence. The charges against Kasab were grave and the evidence foolproof — conspiracy with terrorist masterminds in Pakistan, murdering scores of innocent people in cold-blood and waging war against India, all of which invite the maximum punishment under Indian Penal Code and other relevant laws. Kasab’s case falls in the ‘rarest of rare’ category as defined by the Supreme Court for sending convicts to the gallows. A milder punishment would have meant going against popular sentiment, though that also potentially risks miscarriage of justice.

However, it remains a moot point if the practice of awarding death penalty really serves the purpose for which it is envisaged. Fifteen years ago, India had told the United Nations that death penalty was required to instill fear and deter future criminals from perpetrating grave crimes, including terrorist acts. Yet, there is no evidence to suggest that these harsh statutory provisions have helped reduce crime. Nearly a hundred countries have abolished capital punishment, a dozen others have reviewed their statutes to preclude ‘ordinary’ crimes from their purview and over 30 others have undertaken not to invoke the harsh punishment though the provision for it continues to exist in their respective statutes. Apart from the lack of empirical evidence to establish that the fear of death penalty reduces the incidence of heinous crimes in society, liberal democracies have generally accepted the argument that the state should desist from taking away an individual’s right to life as a measure of extreme punishment — death cannot be a punishment; it is its abrupt end.

Only a couple of death row convicts have been actually hanged-till-dead in the 12 years or so in the country. Thus, there is a strong case for a moratorium on capital punishment. Kasab’s case also provides India with the rarest of rare opportunities to show to Pakistan and rest of the world its mature and humane face. India can wrest the opportunity and put the onus on Pakistan to first bring to book Kasab’s handlers on its soil. But to do this, the government must summon enough courage to go against prevailing populist political and public sentiments.

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