Home >opinion >Saga of retributive justice

In the wake of Yakub Memon’s execution, many experts have weighed in, arguing over retaining the death penalty. Those supporting the execution have spoken of the need to punish terrorists. The figure of 257 deaths in the Mumbai blasts of 1993 has been invoked as though it sets a standard. Memon’s execution is supposed to bring closure to the survivors of those who died—the way executing Mohammed Ajmal Kasab did for the 166 killed in Mumbai in 2008; the logical extension being as if the wave of retribution killings of over 700 Muslims (by official count) supposedly did that for 58 Hindus who were burned to death in that train compartment in Godhra in 2002.

But of course, the dead don’t come back except in reminding survivors of their loss. Nor does the death penalty provide closure to all those affected. Each grief is individual, and so is each closure. Meanwhile, suggesting that the cycle of violence will go on, a governor has callously warned that the police should keep an eye on the thousands who came to Memon’s funeral as potential future terrorists. Ancient hatred does not disappear; it is kept alive in new forms by new villains.

Some of the execution’s defenders have spoken of justice when they are actually justifying revenge. It is that vicarious satisfaction of a primeval urge that they seek, of closure in only one possible way—by shedding more blood. This is retributive justice, not restorative justice.

By responding to these arguments, opponents of the death penalty are making their case on terms that the retentionists have set. That is a defensive approach. They seek mitigation on specific grounds—that Memon may have become mentally ill; that there was an indecent haste in executing him; that specific guidelines were ignored; that sufficient attention was not paid to the mercy petition.

Few have challenged the remark of a judge who cited Manu (the charming law giver who the Dalits blame for bequeathing the caste system) instead of the Constitution or its precedents. Think of the twisting of the notion of the “rarest of rare cases" test. It did not mean that the penalty was to apply in the most gruesome cases, but where redemption was not possible. Memon’s case shows that the death penalty is a lottery. If the defendant comes from a minority community, and doesn’t have powerful political support, he will likely face the hangman’s noose.

The substantive, procedural and logical arguments against the death penalty are, of course, valid. But they are reactive arguments, which means if all doubts the critics of the death penalty express are settled, then it is all right to execute.

That’s wrong—because the death penalty is wrong because it is wrong.

The death penalty allows a state to execute someone in the hope that others will not kill other people. The death penalty grants exceptional power to a hugely fallible entity—the state—to punish an individual so irrevocably that there is no room for error and that the state is convinced it is right. It allows a few individuals within the state the authority to decide who should live and who should die.

Think about it for a moment: how error-prone is the state? The Indian state —in fact, any state—which is inefficient enough not to store grain properly, wasteful enough to let power get stolen, indecisive enough to ban porn one day and revoke the ban the next, greedy enough to be corrupt, authoritarian enough to deny personal freedoms to consenting adults, biased enough to tell frightened citizens during a riot that it had no orders to protect them, and incompetent enough to issue Aadhaar numbers to animals and vegetables, is suddenly assumed to be flawless enough to be given the power to execute an individual.

The death penalty is fundamentally flawed for all the good reasons its opponents have cited—it is arbitrary, expensive, retributive, vengeful, imperfect, unjust, and does not deter crime. What it celebrates is a nation’s blood lust, now euphemistically described as collective conscience. It is wrong because it elevates the logic of “an eye for an eye" to an eternal truth, without realizing what Mohandas Gandhi observed—that an eye for an eye leaves the whole world blind. Rising above vengeful instincts makes us better people.

Life is cruel and unfair, and the tragedies it inflicts unexpectedly can be overwhelming. Being compassionate is challenging when you have to show compassion towards an adversary, but without compassion, we are consumed by our internal demons.

Indeed, let the state punish firmly; it need not abdicate its responsibility to protect; let there be long incarceration for grave crimes. But the state must not play god.

In the week celebrating India’s freedom, can India dream of a time when the state no longer has such final powers over individuals? Then maybe India will get closer to that heaven of freedom in which Rabindranath Tagore said—let my country awake.

Salil Tripathi is a writer based in London.

Your comments are welcome at salil@livemint.com. To read Salil Tripathi’s previous columns, go to www.livemint.com/saliltripathi-

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