The death penalty argument is going off the rails

Yakub Memon was hanged to death by the state today. So naturally, the internet has seen a barrage of op-eds, voyeuristic media coverage, the customary chest thumping and tweets and posts from both sides of the death penalty argument. The latter, in my opinion, was one of the few narratives worth following in the profligate theatrics that unfolded around the "event" (these include 3am Supreme Court hearings, political mud-slinging, reports on Memon's new clothes - the usual).

Having followed this narrative fairly closely over the last one week, the arguments against the death penalty, which I support, were as they always have been... criticised as anti-national. No, but seriously, the arguments were broadly on humanitarian grounds - that the criminal justice system should not be retributive, that capital punishment was nothing but pre-empted murder by the state; Camus, Orwell, statistics on the number of countries that have abolished the death penalty (103), the year and the century, among others. All points discussed at length, as far as possible, met with sometimes-civil counter-arguments.

However, some of the arguments in favour of the abolition got carried away and lost sight of the purpose and end to which they were being made.

The "selective justice" labyrinth

There was a term that was tossed around with gay abandon by folk who stood in favour of abolishing the death penalty. "Selective justice" — which somehow in this debate came down to what-abouting. For the Amish, what-abouting (noun)is the internet user's mindless weapon of choice in banal 1984 versus 2002 debates.

To examine why the approach to the "selective justice" argument has been self-defeating when making a case against capital punishment, it is important to understand what the term means. In legal parlance, selective prosecution is a "procedural defence in which a defendant argues that he should not be held criminally liable for breaking the law, as the criminal justice system discriminated against him by choosing to prosecute." In the topical context of the case against death penalty, the likes of Maya Kodnani and Babu Bajrangi (both presently out on bail) are being invoked to explain the idea of selective justice.

As an observation, it is fair, nay necessary to point out the leniency with which Kodnani and Bajrangi are being treated as compared to Memon. Kodnani's sentence had been suspended and Bajrangi is out for medical treatment. While handing out the 28-year sentence to both of them for having masterminded the Naroda Patiya massacre, special court judge Jyotsna Yagnik had said, “Acts of communal violence are brutal, inhuman and shameful. Naroda Patiya was a clear incident of human rights violation as 97 people were killed brutally within a day — which included hapless women, children and aged persons. The climax of this inhuman and brutal act of violence was reflected in the murder of an infant who was barely 20-days-old.”

So the comparison boils down to 97 versus 257, bombs versus mobs and, well, in this case specifically, Hindus versus Muslims. And if you bring into play the "rarest of rare" parameter for capital punishment, which owes its genesis to the Bachan Singh case, I suppose it's only fair that if Memon has been hanged, Kodnani and Bajrangi should hang too.

And that's why this argument is a mistake. Because a case made from what-abouting never reaches a reasonable conclusion. When you make the argument that "Kodnani will live but Memon has been executed and that is selective justice", your argument is flawed. Because when you oppose the death penalty on humanitarian grounds, it can never come under the purview of justice, not even the selective kind.

This approach works better: "If Kodnani is allowed to live, Memon should have been as well.

"If the Gujarat government in a laudable decision refused permission to the Supreme Court-appointed SIT to file an appeal in a higher court seeking death penalty for Kodnani, Memon should have been given the same privilege." (I use the term loosely, since by no means do I consider incarceration a privilege, but that's a story for another day.)

The eulogisers

My other takeaway from the debate is that the arguments are becoming fluid enough to move into the space of eulogising. As Madhu Trehan pointed out on NDTV last night (and I paraphrase here), "There's no reason to twist facts, stick to the death penalty argument. I respect people who are doing that". Memon's role and guilt in the 1993 bomb blasts are not under question. The letter from B Raman was inadmissible in court. And let's be honest, he was given due process of the law (no matter how theatrical). He was found guilty. Stop calling him a hero, he was not that. He was, however, a human being; flesh and blood like you and me, but with different, once diabolical plans. And for that he was serving a sentence. Stick to that.

The what-if conundrum

The last argument I would like to address is the one which goes something like this, "You're hanging Yakub because you can't catch his brother, Tiger" (I'm looking at you, Salman Khan). Unless, this somehow implies that if Tiger had been apprehended, both brothers would have been convicted for life after being given a fair trial, I am inclined to dismiss it as part of a narrative different from the argument against the death penalty.

Personally, I think the death penalty is a legally condoned murder, which is both oxymoronic and inhuman. It has no place in a civilised society which has evolved the cognitive privilege to create a law and order system. Are we so depraved that we now want to have countdowns to and live coverage of an execution?

If you truly want retributive justice, believe me when I say it exists, just visit a prison and tell me if those living conditions are anything but the pinnacle of punishment for a human being.

But while respecting the rights of death row convicts and defending their right to life, also respect the victims of these massacres. Respect your stand on the issue. And, I know this is impossible in a space where field reporters aggressively bark questions at senior counsel at 5am, try to respect the other side of the argument.