We have been thinking of death quite a bit this week. Not about death as a natural, inevitable part of life. But about death as punishment. Death as “justice”. Death as a move on an invisible, giant chess board.
First we solemnly opposed the United Nations resolution calling for a moratorium on executions. We were in a small minority of friends like Pakistan, China, the United States and others with pretty dreadful human rights records. We have a serious problem of terrorism, we say, so we need the death penalty in place.
As if to illustrate our argument, the next day we quickly and secretly executed Kasab, the terrorist. And dutifully burst into celebrations in a bizarre, bloodthirsty kind of way. Justice was done, we shouted. Of course there are those who are never satisfied. They complained about Kasab’s death being too delayed and too concealed — they wanted a public spectacle. In fact they would have wanted the chap to be hanged as soon as he was caught, preferably from the nearest lamp-post at Mumbai’s Chhatrapati Shivaji Terminus, where Kasab had shot dead 58 people on November 26, 2008.
Engrossed in our vulgar revelry over Kasab’s execution, we paid no attention to the Supreme Court’s criticism of the way death penalty is decided in our country. It had nothing to do with Kasab’s hanging. As long as we have the death penalty, a terrorist caught in the act would certainly hang for it, as Kasab did. The Supreme Court’s call for a relook at the way we decide on “rarest of rare” cases just happened to be announced on the same day as Kasab’s execution.
And a day later, the Delhi high court acquitted two convicts who had been given the death sentence, blaming the police for sloppy investigation. Mirza Nissar Hussain and Mohammed Ali Bhatt, accused in the 1996 Lajpat Nagar bomb blast that claimed 13 lives and injured scores, were acquitted of all charges. The judge blamed “grave prosecution lapses” and “inefficiencies” including “lack of proof connecting some of the accused with the bomb incident, failure to hold TIP (Test Identification Parade)… not recording the statements of vital witnesses…” Further, the police work raises “a question mark as to the nature and truthfulness of the evidence produced.”
Sadly, we are not surprised anymore when we hear that innocents have been sent to prison, or perhaps to death row, because the police did not do their job. Or that innocents are deliberately framed by powerful folk. We are not surprised especially when the convicts are poor and disempowered, particularly when they are Muslims or lower-caste Hindus. We are not enraged that our much venerated justice system gets waylaid by administrative lapses, inattention or prejudice and fails to deliver justice. Which is why politicians who have helped kill hundreds, even thousands, of Indians are rewarded with power and veneration, and mourned ostentatiously when they die.
Even presidential pardons, the last resort of the legally damned, where every case is supposed to be scrutinised thoroughly by the government, has its curious moments. Like this year, when President Pratibha Patil, advised by home minister P. Chidambaram, pardoned Bandu Tidke, a rapist and murderer. Irritatingly enough, Tidke had died in jail five years earlier. The sly murderer had clearly managed to hide this fact from the upright and unsuspecting officials so meticulously re-examining his file.
Perhaps a callous, careless, prejudiced and easily persuaded system like ours does not deserve the right to dole out the death penalty. That is too final, too irrevocable for a country brimming with goof-ups.
One of the main arguments in favour of abolishing the death penalty is the possibility of innocents being executed by the state. And in India, the probability of this grave miscarriage of justice is extremely high. Besides, deciding who will hang and who will live has become so arbitrary and subjective that it undermines justice, encourages inequality and challenges the credibility of the state that allows such favouritism or randomness in justice delivery.
Besides, our argument that as long as we have terrorism we must have the death penalty is weird. A terrorist, especially a fidayeen, does not care. He is willing to sacrifice his life for his cause and would be quite delighted to be a martyr. I mean, would it stop suicide attacks if we hanged a suicide bomber?
The Supreme Court’s concern about the arbitrariness of death sentencing does not come out of the blue. Recently, 14 former judges appealed to President Pranab Mukherjee to commute to life the death sentences of 13 convicts. They were sentenced to death by mistake. The Supreme Court admits this, and thus the appeal by these judges. Unfortunately, two other convicts who had similarly been given the death sentence by mistake have already been executed. Ravji Rao was hanged in May 1996 and Surja Ram in April 1997. Oops!
Perhaps we need to take a good, hard look at ourselves. Are we competent to play the god of death? When we hang innocent people and let the guilty roam free, are we delivering justice? Are we passing off our primal bloodlust as justice, cleverly dodging inconvenient corners in a sophisticated criminal procedure system? Are we seeking vengeance in the name of justice?
And this “rarest of rare” has always confounded me. As horrendous crimes become commonplace — like murdering your wife for dowry — do they gradually get disqualified from the highest punishment? Or if a crime is not that rare anyway — like murdering minorities in orchestrated mob violence or killing lovers for defying their khap panchayat — can they not be tried for capital punishment? There are judges who, very understandably, believe that honour killings and “encounter” killings by the police should get the death penalty. So what is “rarest of rare”?
It’s up to the judge. Which is why judgments often reveal religious prejudice and cultural stereotypes. Then there are political expediencies. When populism becomes key and public sentiment rules, justice is not blind anymore. It burns the disempowered to ashes and winks at the powerful. And moves away from the constitutional guarantee of justice for all, undermining our democratic rights and freedoms. No wonder the Supreme Court is not happy with the way the death penalty is awarded.
In this situation, do we really have the right to play the god of death?

The writer is editor, The Little Magazine. She can be contacted at sen@littlemag.com