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Naroda Patiya judgement rekindles the death penalty debate in India

September 6, 2012

The Naroda Patiya massacre in Ahemdabad on 28 February 2002 killed 97 Muslims. It is the massacre infamous for the gory stories of a pregnant woman disemboweled and raped, a 20 day child killed, and so on. If this massacre is not fit to be considered “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 practicing 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 1 September. Her court found 32 people guilty, of whom one is absconding. 7 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 judgement (.pdf here) like this. And I am happy that she has compensated this with extra years in jail- and in Babu 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 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 Babu 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 Ajmal 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. Ajmal 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 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. 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”. This, even as the evidence against Guru is thin and circumstantial.

If 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 Ajmal Kasab hanged right away, do not want Babu Bajrangi and Maya 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 judgement 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 judegement 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 judgements 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?

(First published in Rediff.)

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14 Comments leave one →
  1. September 6, 2012 4:11 AM

    yes death penalty must go. But a lot more has to happen. The archaic prison system must be replaced with a real correction system. Lesser crimes must be punished with community based correction. Within prisons too, there are a number of changes that need to happen so that all opportunities are provided to the convicts to be released as better human beings.

  2. Nisha george permalink
    September 6, 2012 6:36 AM

    Yes. If what Ajmal Kasab did was brutal and cold blooded we know there is a big story behind how young men like him get caught up in situations like this and become the people they become. To me what is sickening is how ordinary human beings who are supposed to be humane and caring react to situations.When Osama bin laden was killed the video of his death was being passed around Facebook. What sick minds do we have that make us revel in another beings death. How sick that we do not offer him the dignity of death. What makes us believe we are good and another person evil. When hapless labourers get pulled off a triain and get beaten up by another group of misguided young people nobody says a word. People only laugh? If Ajmal Kasab is killed will it bring back those who died? Will it sort out the root cause of the problem ? Blood will be spilled. His hands or our hands that will be the only difference. What makes it right that the blood is on our hands?

    Yes. Truly a commendable judgement. A special salutation to those brave people who lived through such horror and showed great courage and resilience to testify. And to the people who were their support and courage.

  3. September 6, 2012 10:17 AM

    All death sentences should be commuted more logical punishment of imprisonment in numbers of years or till natural death.

  4. September 6, 2012 11:58 AM

    Why should the tax paying, law abiding citizens of India have to bear the financial burden of keeping hardened criminals like Kasab alive? There are no correctional system in the entire world, which may actually “correct”/”change for better” the likes of him. There should be a mechanism to deal with such threats to the society as a whole. Unfortunately, death penalty, as of today, seems to be the only available alternative.

    • November 21, 2012 11:40 PM

      I came back to this excellent article by Shivam Vij and am seeing this comment by Shovon dada for the first time.
      Someone said on Twitter: “those crores were not spent on Kasab but on a semblance of due process”.
      Don’t know about correcting someone but if it’s of any use to you, Turkey spared the life of Abdullah Ocalan, when it was actively seeking EU membership.
      Ocalan is said to have mellowed in prison. Alas, if only that could also be said of the Turkish state.

  5. Vishu Gulati permalink
    September 6, 2012 12:59 PM

    letting terrorists rot in prison , so that another plane can be hijacked and state can be ransomed for the lives of its citizens. They are getting what they deserve, even a death sentence falls short of justice in kasab’s case

  6. Prince Khan permalink
    September 6, 2012 2:43 PM

    The capital punishment in India often come from poor, marginalised or minority communities. This is an ample example of hypocrisy of judge or Judicial Department. Because those who are belongs from poor, marginalise or minority communities are not able to give them a huge amount of bribe. We all are well aware that the Masterpiece of a violence, massacre, serial blast, rule broker etc belonging from rich family (whether they are actor, politician, MP, MLA, MINISTER) are still not getting any capital punishment. Even those people are still not highlighted by media.

  7. suresh permalink
    September 6, 2012 7:20 PM

    Abolition of Capital Punishment is not solely a question of ethics, though that is undoubtedly there. It is also a question of economics. Keeping people in jail is costly — one estimate for the UK is that it costs about 50,000 pounds to imprison someone for a year. This is more than the median income for the UK.

    Historically, I suppose that is why most societies did not resort to imprisonment until fairly recently. For instance, one is struck by the range of crimes that carried capital punishment in 19th century Britain. Even crimes like shoplifting carried the death penalty, something that would sound absurd to us. Even in our current age, it is precisely because imprisonment is costly that bail is typically awarded to an accused (unless the charges are very serious or there is a fear that the accused may flee or tamper with the evidence).

    I am not suggesting that we retain capital punishment. I am only noting that this issue has other dimensions besides ethics and as a society, we cannot ignore those other dimensions. As Gunasekar notes in his comment, we cannot discuss the abolition of capital punishment in isolation. It has to be discussed in the context of reform of the entire penal system.

  8. September 6, 2012 8:01 PM

    Were the people who burned alive 59 persons in the Sabarmati Express given death sentence ? If they were, then the Naroda Patiya accused should also be given the same. Both were horrifying incidents and were related to each other in some way. Activists should maintain balance if the y want to be taken seriously.

    • Zarbux permalink
      September 8, 2012 4:30 PM

      All of them were sentenced to be hanged. None of the rioters as yet are given capital punishment.

  9. lakshmi dwivedi permalink
    September 6, 2012 10:31 PM

    I do agree with many of the issues raised but I still feel in some cases death sentence is required as it can serve as future deterent esp for crimes like honour killings, fake encounters dowry deaths etc. Many people, due to fear of being caught and subsequently due to fear of dying, may not resort to such gruesome crimes.

  10. Nitye permalink
    September 6, 2012 11:56 PM

    I cannot help but think this article is slightly hypocritical.

    “Justice should be restorative, not retributive.”
    “Rotting in jail knowing you are never going to be a free man again is worse than the finality of death”

    Let us take a look at the nature of crime and punishment from a larger perspective.
    When, in any given society, a person is considered to have behaved in an unacceptable way, he or she is punished for it.
    And through hundreds of years of evolution of society, we’ve come to a broad consensus of whats acceptable and whats not. Now, when someone commits a crime, they are “quarantined” from society, and spend a specific amount of time in a correctional facility so that they me be successfully rehabilitated into society.

    Keeping this in mind, it only makes sense to serve the death sentence to those people who can never be rehabilitated (in the eyes of the law). Any sensible society would put such people to death, and not waste money and resources keeping them alive for decades. Not to sound too extreme, but logically speaking all life imprisonment sentences should be death sentences.

    The primary purpose of the justice system is not to make the victims feel better (or provide closure), but it is to strive towards the betterment of society, by rehabilitating criminals who can be rehabilitated, and getting rid of those who can’t. By trying to sit on the fence, and arguing in terms of morality and humanity, and worrying about enraging one community or the other, we are only choosing to turn a blind eye to the inconvenient yet real role of the justice system in society.

    And as far as the author’s last point is considered, if the courts don’t have faith in their own judgments, then what is the value of any sentence served to anyone?

  11. Ajith Kumar a s permalink
    September 7, 2012 8:55 AM

    Let me share my Facebook status regarding this topic :-

    Chronicle of a death penalty Foretold

    Everything about Ajmal kasab happened as expected. The state wants to kill him. Patriots want to kill him. The only thing needed was a judicial sanction. Everyone is pushed to a place where a question is impossible –is it right to kill kasab? Now Kasab’s life hangs somewhere in the midst of the discourses on the “enmity” between the two nations, and the unquestionable ideas about nation hood, patriotism, terrorism, communalism etc. even if we talk against kasab’s death penalty from a abolitionist position the question would be “are you speaking against your own country ?’”Are you trying to save the life of someone who tried to kill the people of your nation? “So the humanists who always speak against killing have no problems with killing someone just because he/she belongs to a foreign country or what they say an “enemy country”. Questions whether death penalty is right or wrong or whether a man/woman would get justice from a foreign country is pushed out of the debate .the only thing that remains would be the jingoistic cry for killing. The killing would be justified within the theory of war. Here the court firmly asserts that it is a state apparatus.
    In this context I find it is a terrible logic to compare Kasab’s case with Naroda Patia case. On online space there was many who asked why there was no death penalty for the convicts of Naroda patia. It’s too dangerous logic. The history of death penalty itself tells us it was always biased. Race and caste determined the victims of this form of state murder. The need of the hour would be to attack the very foundation of the idea of death penalty than asking why death penalty was not given for some other cases.

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  1. Ajmal Kasab, Tajinder Pal Singh Bagga, biryani and me « Kafila

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