WHY HANGING KASAB WAS WRONG
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.