An Ill-Timed Debate on Abolishing Capital Punishment

Court’s judgment cannot be in sync with an individual’s belief , it’s based on merits of a case, asserts Nalin Kohli

A Case for Execution

• Using the term ‘murderers’ with respect to the Yakub Memon judgment adds fuel to the raging debate on death penalty
• Judgments need not be in sync with one’s individual belief and outlook
• As long as death penalty is present in statutes, courts will prescribe it, depending on the merits of a case

Pierre Trudeau (1919 to 2000), one of Canada’s famous Prime Ministers, opined that “the essential ingredient of politics is timing.” While public opinion on Trudeau’s legacy and greatness is divided, the truth in his famed quote can hardly be debated.

The larger public discourse on the question of abolishing the death sentence in India has perhaps been inflicted some significant damage given the mistimed comments by two of its passionate advocates. Instead of finding greater common ground, a wider chasm has possibly been created between those who stand for abolishing the death sentence and those who don’t.

On July 30, hours after Yakub Memon was executed for his involvement in carrying out the Mumbai blasts in 1993, senior Congress leader and MP Shashi Tharoor tweeted: “Saddened by news that our government has hanged a human being. State-sponsored killing diminishes us all by reducing us to murderers too”.

He followed it up with a second comment soon after. “There is no evidence that death penalty serves as a deterrent: to the contrary in fact. All it does is exact retribution: unworthy of a Govt”.

Tharoor’s Comments

The uproar was both instant and intense. Tharoor’s comments sparked a wild political and social bushfire. The obvious inference was that he had termed the Supreme Court judgment as a “state sponsored killing.” The use of the word “murderers” for implementation of a judgment awarding the death penalty to Memon added fuel to this raging debate.

The impact of his choice of words might have subsequently dawned on Tharoor. In an apparent attempt at damage control he sought to expand the debate to one based on principle. He tweeted again: “I’m not commenting on the merits of a specific case: that’s for the Supreme Court to decide. Problem is death penalty in principle & practice.”

Unfortunately, the damage seemed to have been done and retraction was difficult. After all, the death sentence was awarded for a terrorist act that had left over 250 people dead and hundreds others scarred for life. Many of these families had awaited the legal outcome for over two decades. The Supreme Court could not be faulted for preventing Memon ample opportunity for appeal, including one in the wee hours of the morning prior to the execution of his sentence.

Ironically, Tharoor also found himself banded with Asaduddin Owaisi who gave an open communal and political tone to the Supreme Court judgment.

Surendranath’s Resignation

Even as the debate raged in the media and social media through the day, hours later yet another controversy erupted by another equally, if not more, passionate supporter of abolishing the death sentence. This time Supreme Court Deputy Registrar (Research) Anup Surendranath resigned from his contracted post.

Once again the Memon death sentence fuelled the timing of his tweet. “It would be silly and naive to see the events of the last 24 hours at the Supreme Court as some triumph of the rule of law. The two orders at 4 pm on July 29 and 5 am on July 30 (and the reasoning adopted therein) are instances of judicial abdication that must count amongst the darkest hours for the Supreme Court of India.”

Surendranath, one of nearly two dozen Supreme Court deputy registrars was associated with the filing of the petition seeking a stay on Memon’s death warrant. He sought to justify his comments on grounds of returning to his work as faculty member at the National Law University, Delhi, and Director of the Death Penalty Research Project.

To this effect his subsequent tweet was specific. “I have been contemplating this for a while now for a variety of reasons, but what was played out this week at the Supreme Court was the proverbial final nail – I have resigned from my post at the Supreme Court to focus on death penalty work at the University”.

Memon’s case is not one that can be termed as a crime of passion or one undertaken in self-defence by an individual under provocation. Nor is there any doubt about his guilt and active involvement. Neither is this a case of someone who may have been wrongly convicted of a greater punishment than his crime. His case was primarily focused on the issue whether the trial court had correctly pronounced the death sentence, as prescribed in law. That’s what the Supreme Court did in upholding the trial court’s judgment.

Judgments Vs Individual Beliefs

Additionally, judgments may not necessarily be in consonance with one’s individual beliefs and views. Nor can they be pronounced on the basis of social expectations. They are pronounced on the specific facts of a case and the punishment prescribed in the statutes.

It is unfortunate when those perceived as responsible members of society use strong words such as “state-sponsored killing….reducing us to murderers”, “retribution: unworthy of a Govt” (which cannot and did not pronounce this judgment!) or call it an instance of “judicial abdication that must count amongst the darkest hours for the Supreme Court of India.”

Additionally, their personal belief, passionate view or angst cannot be a legitimate excuse to attack the institutional edifice of democracy particularly the legislature (Parliament which enacts laws) and the judiciary which adjudicates the breach of law. Till the death penalty is in the statutes, courts will be expected to prescribe it based on the merits of each case.

Over the last decade, the higher courts have been reticent about awarding or upholding the death penalty. Whether it is to be abolished or retained is a wider debate. Views on either side need to be respected. The debate though, is far from settled.

(The writer is BJP’s national spokesperson and a Supreme Court advocate)