Our politicians hailed it as a strong message to Pakistan, the Maharashtra Chief Minister called for an early execution, Special Public Prosecutor Ujwal Nikam gave it the two thumbs up. There were fire crackers in the streets of South Bombay and sweets distrusted in its offices. Hang men are now coming out of retirement, with the hope of getting the ‘opportunity’ to hang Kasab and ofcourse we are now hearing claims from the Government that he will be hanged within the year.
The run up to the judgment was a story in itself, the family of the survivors were calling for the death as soon as he was pronounced guilty, while the BJP was busy burning an effigy with a noose around his neck, the Times of India was whipping up excitement with its scrolling updates on its website. And then it finally came, death for the one who brought death. And with it, the joy, the celebration of many was widely reported. I began to wonder, is putting someone to death is societies greatest act of retribution. There is a passage in the February 2010 decision of the Supreme Court in Mulla v. State of UP which runs:
“When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty”
Though this is a part of a longer, reasoned judgment which may form a part of the jurisprudence which may eventually lead to the abolishment of the death penalty, it is something which sticks out, especially in the light of the reaction portrayed by the media to the news that Kasab was awarded the death sentence. One of the criticisms, of the retributive theory of justice, of which this passage above seems to be referring to, is that its promotes a society which is bloody thirsty and lives on rules of the a an eye for an eye. And regardless of the other justifications of capital punishment, this seems exactly what is happening. The sheer way in which people of the nation were clamoring for someone’s death was shocking.
So where are we then, is law reflecting the sentiment of society or fuelling it? Recent decisions of the Supreme Court indicate that it the rule of law and Constitutionalism may run contrary to public opinion and regardless of public outcry, judges must be insulated and continue to uphold constitutional values. [See: Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, (2009)6SCC498, Anuj Garg v. Hotel Association of India and Naz Foundation]
In Bariar the Supreme Court stated that it was all too aware that death sentencing can become a media spectacle in the country. An understatement in the least considering the spectacle surrounding the Kasab trial. One wonders how one stops attitudes of revenge and thirst for blood from passing from generation to generation.
As Michael Moore said, “I refuse to live in a country like this, and I’m not leaving”
Comments
It may be inhuman to send someone to the gallows, but I, to date, have not stumbled upon a better solution. I am not suggesting that this is the only solution, it may not even be a solution. But what would you rather do with a Kasab? Keep him tucked away and fatten him up with tax payers’ money so he will soon be ready to be set free? Why would anyone let go of an opportunity like that? Even a second grader would trade her pencil for a pack of ten.
Wouldn’t you set him free to save a thousand lives?
We may say that the character of a modern society lies in reformation; it traverses beyond the Stone Age.
But do we have an answer to quell the anger, agony, angst of persons like you and me who have been subject to such heinous crimes. Is reforming, a tool to deliver justice to such persons or a way to suppress their anger, leading to a systematic growth of hatred, disdain and disillusionment leading to a greater unrest.
I have a lot of questions answered, but I am sure there remain a lot of lives unanswered.
@2 - A lot of people to whom I have spoken to mirror your concerns about the tax payers bearing the burden of a convict. I just want to make a few clarifications -
a) It is not necessary that a convict be released when he is sentenced to death. The Supreme Court recently ordered that a person be imprisonment for the remainder of his life. They did so on the justification that the crime was gruesome but still did not fall into the 'rarest of rare' cases. So Kasab does not necessarily need to be released.
b) Why fatten up any criminal on the tax payers money? Currently only those criminals are sentenced to death where their case satisfies the rarest of rare cases. The other criminals are in jail. Plus, the efficacy of the death sentence as a deterrent is highly questionable - why the Supreme Court itself has expressed doubts over this.
c) i think we must be clear, that the anger of the 'majority' is definitely no ground for criminal law. This thankfully have been accepted in the Nax Foundation case - where the court advances the theory of constitutional morality. I think an interesting point on this in regard to the death sentence came in In Om Prakash v. State of Haryana, [(1999) 3 SCC 19], where the Supreme Court sought to balance the "cry of the society" [something the courts were beggingn to take into consideration] and meeting the Bachan Singh 'rarest of rare' test. The court was of the view that it was bound by Bachan Singh and not in specific terms to the 'incoherent and fluid responses of society'.
secondly, a life sentence would not be such a burden on the taxpayer if the government were just a little efficient. all that the government needs to do is to device a method where work done by convicts can be put to such a use which can be made marketable thus generating revenue. In effect the government is happy to kill people because it is too inefficient to think of more innovative solutions.
Also, the aim should really be to increase self worth not glorify what a death penalty would sure go down as..self sacrifice in cases like kasab's.
I think one has to accept that a prisons are an acceptable burden on the tax payers money, regardless if the prisoners are productive or not. Plus considering a large number of people in jail are still under trial, the question of having to make them be productive as if they were a burden on the tax payers money (and thereby presuming their guilt!) is definitely questionable. I think what the government does have to worry about in terms of efficiency is ensuring that the convicts and the undertrials are seperated, and the conditions in the jails are good, so that the tax payer is not funding the training of criminals!
if prisons could be treated as societies in themselves i think one could have a very successful and productive prison system, thus making prisons self sufficient units and reducing the burden. on the other hand it may seem like incentivising criminal activity but maybe that would be digressing from the topic a bit much.
Lest we be swayed by Madhur Bandarkar!