Memon’s execution has shown how the inheritors of the Dharmashastra – which lays emphasis on prayaschitta or atonement as a means to become “divine” – need only the minimal incitement provided by media hype to become bloodthirsty
The year – about 2nd Century CE; the place – the flourishing port city of Puhar, also known as Kaveri Poompattinam; the story – the heart wrenching epic of Kovalan and Kannagi and of capital punishment gone wrong. Children of prosperous merchants, Kovalan’s debauchery leads the couple to penury. Hoping for new beginnings, the couple move to the bounteous land of Madurai – where Kovalan, whilst trying to sell Kannagi’s gold anklet filled with rubies, is beheaded without a trial as he is mistaken for the thief who stole the Queen’s anklet. The epic highlights the righteousness of the King and his consort, who give up their lives when they realise the injustice meted out to Kovalan and the insatiable wrath of Kannagi, who burns the entire city of Madurai to ashes.
This story from the Silapathikaram is not just about the irreversible and cruel nature of the death penalty but also a condemnation of the insatiable blood cry of victims seeking retribution and, most significantly, the possibility of error in the delivery of justice, even in the best of systems.
Punishment theories can broadly be categorised as deterrent, retributive and reformative. The retributive theory of punishment is the most basic and primitive, with reformative being intrinsic to an evolved society and deterrence falling somewhere in between.
Deterrence as a basis for capital punishment should be abhorred, as it is the very basis for extremism i.e., killing to set an example. From the public hangings of yesteryears to the recent executions of high-profile offenders, the death penalty may at best bring out voyeurism or curiosity or worse in a person and not a Eureka moment of self-realisation in which a person contemplating murder decides to step back in order to avoid being hanged. Statistics further support the irrelevance of deterrence as a basis for death penalty. The United States, with its death penalty, has more homicides than other western countries, which abolished it. In Canada, as in some US state, homicides have decreased after abolition of the death penalty. India, which has held on stoically, has implemented the death penalty only once in 2012 and 2013.
Retribution knows no boundaries and cannot be satiated. Individuals and societies display progress through increased levels of acceptance, tolerance, restraint and temperance. The recent display of anger over Salman Khan’s twitter feed clearly does not show either temperance or tolerance. The calls we heard for the expeditious hanging of Yakub Memon in the light of divisions in the Supreme Court were a further display of intolerance. On Thursday morning, those voices had their way as Memon was put to death minutes after the dismissal of his final appeal.
The Attorney-General’s call for his speedy execution to avoid opening the floodgates for other petitions is clearly misconceived. The fact that the two Supreme Court judges who heard his writ petition against his death warrant were divided clearly indicates doubt, the benefit of which must always accrue to the accused. The margin for error in retribution is another reason to oppose capital punishment. Justice William J Brennan famously observed that the “death penalty is imposed not only in a freakish and discriminatory manner…” but also upon some innocents. There are enough examples from around the world of innocents either having suffered incarceration or even of having been executed and pardoned after about 86 years, as in the case of Colin Ross. It is now time for the world – and definitely India – to move from merely breaking the nib of the pen that signs the death penalty to breaking away from this practice itself and moving towards reformation.
Memon’s execution has shown how the inheritors of the Dharmashastra – which lays emphasis on prayaschitta or atonement as a means to become “divine” – need only the minimal incitement provided by media hype to become bloodthirsty. No doubt the cry for the death penalty usually comes after a heinous or unspeakable crime is committed but this cannot be a justification for an act of mindless killing albeit sanctioned by law. Legality does not wipe away the indelible mark of blood from the executioner’s hands. Socioeconomic norms do not justify it. Religion does not condone it – while Hinduism preaches prayaschitta and Christianity turning the other cheek, Islam, which speaks of Qisa, or retribution, also permits Tauba or repentance and pardon. Why India still hangs on to the hangman’s noose therefore defies logic.
Insufficient infrastructure to ensure expeditious investigations, delays in the system of justice delivery, subversion of truth or justice in some instances, cause angst and frustration in society and lead to justice being denied. Hanging the guilty cannot be the answer to these deficits. This is not to say that every convict is a Kovalan or that no one should be punished – just punishment is a prerequisite for effective enforcement of the law. Justice, however, does not demand a life. As a civilised society we must reaffirm our faith in reformative principles and moral certitude. If we don’t, India may simply be sucked into the inexorable sands of regression.
N.S. Nappinai is an Advocate practicing in Mumbai and Delhi.
Note: This article has been edited to change a reference to Yakub Memon’s curative petition to his writ petition against his death warrant