WHY HANG­ING KASAB WAS WRONG

Tehelka - - ASSAM - BY YUG CHAUDHRY

THE SE­CRE­TIVE hang­ing of Aj­mal Kasab in Pune’s Yer­wada Jail is a jolt­ing re­minder of that bar­baric pun­ish­ment still ex­ist­ing in our statutes, and of how far we are from be­ing a more hu­mane so­ci­ety.

Ad­mit­tedly, the Kasab case chal­lenged many of the ar­gu­ments those of us op­posed to death penalty have made in the past. Un­like Cha­la­p­athi Rao and Vi­jayavard­hana Rao who had no in­ten­tion to kill bus pas­sen­gers in Andhra Pradesh in 1993, Kasab’s was a bru­tal, pre-me­di­ated crime with in­dis­crim­i­nate tar­gets in Mum­bai, com­pletely qual­i­fy­ing for the ‘rarest of the rare’ stip­u­la­tion laid down by the Supreme Court in Bachan Singh vs State of Pun­jab (1980). Un­like in the Bara case of Fe­bru­ary 1992 in which 35 up­per castes were killed, there is no am­bi­gu­ity as to whether Kasab was one of the at­tack­ers. Un­like in the case of Dhanan­jay Chat­ter­jee — the last per­son to be hanged in In­dia be­fore Kasab, in Au­gust 2004 — Kasab did not claim in­no­cence. Yet, hang­ing Kasab was deeply wrong.

The is­sue is not just about him, but about the kind of so­ci­ety and State we want. It’s not just about Kasab, it’s about us.

Hu­man rights ac­tivist K Balagopal ar­gued in a re­cent col­lec­tion of es­says on cap­i­tal pun­ish­ment, pub­lished posthu­mously, how the de­sire for re­venge un­der­lies ar­gu­ments for the death penalty. How dare some­one com­mit such a heinous crime, and get away scot-free! Fam­ily and friends of the vic­tims may har­bour re­venge but retri­bu­tion can­not be a prin­ci­ple by which a so­ci­ety op­er­ates. Retri­bu­tion has been a fac­tor be­hind some wars, ri­ots, rapes and killings. If th­ese acts — and the sen­ti­ment un­der­ly­ing them — are wrong, there’s noth­ing that makes it right now.

Kasab’s hang­ing nur­tures and re­in­forces the bru­tal­ity in us. A more hu­mane view would have given him the time, the space to re­flect, to atone. Hu­man

While Aj­mal Kasab’s case com­pletely qual­i­fies as the ‘rarest of rare’, there

is still an ar­gu­ment for abol­ish­ing death sen­tences in In­dia al­to­gether

be­ings are not static. Who knows what the 25-year-old Kasab might have been 25 years hence, given the chance. Mean­while, we need to more ur­gently in­ter­ro­gate the pol­i­tics that un­der­lies such at­tacks, a pol­i­tics that ex­ists on both sides of the sub­con­ti­nen­tal di­vide.

Two, an er­ror in any death penalty sen­tence is ir­re­versible. The only way to pre­vent it is by tak­ing it off the statute book. There might not be er­ror in the Kasab case, but hav­ing cap­i­tal pun­ish­ment in law en­sures that er­rors con­tinue to hap­pen, like Ke­har Singh be­ing hanged for Indira Gandhi’s as­sas­si­na­tion. Such er­rors have been ex­ten­sively chron­i­cled in the US and else­where, wher­ever there has been sus­tained re­search on the is­sue. It is this ir­re­versibil­ity of pun­ish­ment that partly in­forms over 125 coun­tries hav­ing abol­ished the death penalty.

Three, the right to life is fun­da­men­tal. While cam­paign­ing dur­ing the Andhra case, we used to be ques­tioned, “What about the vic­tims? Did they not also have that right?” Of course, they do. But do those who ask us thus re­alise that again they are laps­ing into retri­bu­tion? No State or self-con­sti­tuted author­ity should have the power to take away life. Those of us who con­demn the ‘peo­ple’s courts’ of Maoists killing peo­ple need to re­flect why we would grant that power to the State. Just as we need a hu­mane so­ci­ety, we need a hu­mane State. The State, af­ter all, is meant to be, among other things, a po­lit­i­cal ex­pres­sion of so­ci­ety’s col­lec­tive will. The State — and its laws — should strive to re­flect the hu­mane­ness that ought to ex­ist in so­ci­ety. The Aj­mal Kasab case tested that hu­mane­ness to the ut­most. It is our col­lec­tive choices in dif­fi­cult times that de­ter­mine how we will be judged as a so­ci­ety. It seems we failed that test.

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