After a hanging

Questions about application of death penalty

The early-morning hanging of Yakub Memon last Thursday, who was convicted of participating in the conspiracy that led to the placement of bombs in Mumbai in 1993 that killed 257 people, was preceded by considerable last-minute drama in which a bench of the Supreme Court met at 3 am - unusually, in the court premises, and to an attentive audience - in response to a petition filed by Memon's lawyers. It is difficult to argue that the Indian judicial system did not give every impression of paying close attention to this case. However, it is also true that much controversy attaches to this case, and to Memon's execution. What leaves a bad taste in the mouth is the revelation, late in the day and through a posthumously published column, that the late B Raman, an intelligence operative who had participated in the operation that led to Memon's arrest, had misgivings, and felt that national security would be compromised by executing him. The concerns related to this execution also ran deeper, to basic principles about the application of the death penalty. Was this really one of the "rarest of the rare"?

There is no question that the 1993 bomb blasts were a hideous crime. However, there is also the question if Yakub Memon's crime, of being a bit player in a terror conspiracy - the accountant at that - is really a crime that fits the idea of the "rarest of the rare". You do not need to be a strict abolitionist when it comes to the death penalty to raise these questions - after all, they were not raised when Ajmal Kasab, the convicted 26/11 attacker, was executed. This case, instead, reflects the concerns raised when Afzal Guru, convicted of participating in the conspiracy to attack Parliament in 2001, was executed. In both the Parliament and the bomb blast cases, relatively minor cogs were hanged -- and, remember, these were two of the four people hanged by the Indian state in the past 13 years. Genuine questions therefore can and should be asked about how the death penalty is being applied. Does it reflect the nature of the overall crime? Is this in keeping with the "rarest of the rare" concept? Death penalty opponents will point out that such questions are always being asked about the application of the penalty: there is much subjectivity attached to a decision that is claimed to be objective. And others will worry that, when subjectivity is perceived in such high-profile decisions, there are political implications that could attack the foundations of the Indian state. This was the fear that many felt when they saw the thousands-strong crowd at Memon's funeral.

Certainly, there is something wrong when the Indian judiciary seems intent in filling out death row even when the judicial system never seems to get around to carrying out these sentences. According to data published by the National Crime Records Bureau, only three people were hanged between 2004 and 2013; but 1,303 capital-punishment verdicts were handed out in those years. Worse, more than twice that number of death sentences were commuted to life in prison. Clearly this is a systemic problem. The number of commutations, in addition, calls into question the assumptions underlying the original judgments. The entire death penalty debate needs to be revisited taking these basic questions into account.