Kasab, Bajrangi and the case against the death penalty

We should put Ajmal Kasab in jail until he dies a natural death, just like Babu Bajrangi. Rotting in jail knowing you are never going to be a free man again is worse than the finality of death. The punishment for crimes against humanity should be in this world and not the next, says Shivam Vij.

The Naroda Patiya massacre in Ahmedabad on February 28, 2002, killed 97 Muslims. It is the massacre infamous for the gory stories of a pregnant woman disembowelled and raped, an infant killed, and so on. If this massacre is not fit to be considered the "rarest of the rare," what is?

It is ironical that the court found the kingpin of the massacre to be a woman, Dr Maya Kodnani, a practising gynaecologist, a former minister of state for women and child welfare in the Narendra Modi government! The court came down particularly hard on her, commenting that as a legislator, a representative of the people, she had done the opposite of what she was expected to: she helped kill people rather than save them. "She led the mob and incited them to violence. She abetted and supported the violent mob," the court observed.

However, special court judge Jyotsna Yagnik chose not to sentence the accused to death when he announced the sentencing on September 1. Her court found 32 people guilty, of whom one is absconding. Seven will spend 31 years in jail, 22 will spend 24 years, Maya Kodnani 28 years and former Gujarat state Bajrang Dal president Babu Bajrangi is to live the rest of his life in jail.

Justice Yagnik -- a brave judge whom the Gujarat government had transferred but was reinstated by the Supreme Court -- said that capital punishment was against human dignity and that global trends were to avoid it.

As someone against death penalty, I am only too happy that a judge has given a judgment like this. And I am happy that she has compensated this with extra years in jail -- and in Bajrangi's case, jail till natural death. I think that capital punishment should be abolished from Indian law, as the State has no right to take away anyone's life.

Killing a mass murderer is not going to bring back those he killed, and I do not understand how the cause of justice is served. The idea of justice is not revenge but to bring a sense of closure to the victims, not give them the gross feeling of revenge. Justice should be restorative, not retributive.

Making the legal process less cumbersome and time-consuming, making it more independent from the pressures of the government of the day, punishing the police and investigation agencies found coming in the way of justice, are some measures that are going to be far more effective in preventing heinous crime than hanging people to death.

Sometimes capital punishment is actually counter-productive. It has the potential of turning the accused into a martyr, which is then used by his or her defenders to spread his or her message. Hanging Bajrangi is going to be used by some fanatics to make him into a hero in the cause of fanaticism and religious violence. Letting him rot in jail forever, is justice that will deny him a heroic halo.

Justice is about fairness, not about lynch mob mentality. And so when the Supreme Court upheld capital punishment for Ajmal Kasab, I was sickened to see the reactions by some in social media. 'Hang him now!' they said. 'Why are we wasting the tax-payer's money keeping him alive?' they asked.

They are not asking for justice but for the ghastly pleasure of seeing someone they hate being killed by their State. It is the same kind of vicarious pleasure that the 26/11 terrorists and the people behind them sought. So are we going to submit to the kind of base instincts that made Kasab a terrorist? Unlike the nine others who were killed, Kasab was captured alive. But he, too, was prepared to be killed. Like all jihadis, he was probably told he will attain heaven. Kasab's hanging is not going to deter other jihadis who are indoctrinated to die for a cause.

And that is why we should put Kasab in jail until he dies a natural death, just like Bajrangi. Rotting in jail knowing you are never going to be a free man again is worse than the finality of death. The punishment for crimes against humanity should be in this world and not the next. And if we assert that these criminals have committed acts that are inhuman, our moral right to justice cannot be fulfilled if our justice is the inhumanity of murder.    

The only thing that will not be achieved by their hanging is that we will not get to clap and cheer as the noose tightens, which is what some of us really want to do. Like barbarians, like the Taliban. It is unfortunate that in the Afzal Guru case the Supreme Court almost succumbed to such emotions of retributive justice when it noted that sentencing him to death would satisfy "the collective conscience of the [sic] society".

If the tax-payer's money is to be saved, let's abandon the criminal justice system as a whole and keep hanging people summarily. Incidentally, the people who want Kasab hanged right away, do not want Bajrangi and Kodnani hanged. I don't understand this double standard and hypocrisy. Both killed people, lots of them. In fact Kasab's crime is lesser: he was not a mastermind like Kodnani and Bajrangi but a pawn.

An MLA conspiring to kill the people she represents is definitely "rarer" than a Pakistani terrorist coming to India and killing Indians.

I am not saying that Kodnani and Bajrangi should be hanged, rather that nobody should ever be hanged, for anything. The hypocrisy in a section of public opinion is proof that capital punishment is less about justice and more about retribution. But there are more reasons why India should abolish capital punishment.

Those given capital punishment in India often come from poor, marginalised or minority communities. This makes people say that the rich, the mainstream and those from majority community are treated with leniency. While I appreciate and second Justice Yagnik's argument that death sentence is against human dignity, I am only saying that the Indian criminal justice system should apply this logic as a whole, in all cases deemed "rarest of the rare".

The criminal justice system as a whole should not only treat everyone equally but also be seen as treating everyone equally. The Naroda Patiya judgment will certainly seem unjust to the 11 who have been given death sentence for the Godhra train carnage.

When the perpetrators of the gruesome Khairlanji massacre, in which a Dalit family was lynched to death by a whole village in Maharashtra in 2006, were not given death sentence, it made people ask: why does the system become lenient with punishment when the victims are Dalit? Such alienation and politics over capital punishment can be avoided only if it capital punishment is abolished from the statute book.

Another good reason why capital punishment should be abolished is that in case a judgment is erroneous, in case someone is being convicted on the basis of, say, concocted evidence, the mistake cannot be reversed. A man in jail can be freed but a man murdered can't be brought back to life. The mistake can also be one of the judges' interpretation of what constitutes "rarest of the rare". And given the number of riots and pogroms and terrorist activities we have in this country, is the "rarest of the rare" really all that rare?

Fourteen eminent retired judges have recently written to President Pranab Mukherjee asking him to commute the death sentences of 13 convicts because the Supreme Court recently admitted that seven of its judgments giving those 13 capital punishment were made in error or ignorance (rendered per incuriam)! The Supreme Court has also admitted error in giving death sentence to Ravji Rao and Surja Ram of Rajasthan, who were hanged in 1996 and 1997. Could there be greater injustice in the name of justice?