A Judge as Delusional Dictator Clinging on to Death By Hanging

When a majority of countries have abolished the death penalty, many in India’s higher judiciary hang on to it.

The legal course of Mumbai blast-accused convict Yakub Memon’s appeals of clemency against the death penalty imposed on him, and subsequently ratified by the Supreme Court, has unequivocally revealed that while handing out capital punishment, the pronouncements of our judges echo that of the state – uncompromisingly and whimsically bent on inflicting death to a broken man.

The proceedings in Supreme Court on July 27, when Memon’s last-ditch petition to stay his execution came up before a two-judge bench, will remain one of the darkest in the annals of India’s highest court of appeal. Of the two judges who presided over the matter – literally over life and death – Justice Anil R Dave’s retort in response to Yakub’s counsel, who pleaded that their client was “in agony and that the government was not right in hurrying into a question of life and death,” smacked of cold, pathological arrogance.

Justice Dave said quite nonchalantly: “Let his agony end then…but can we allow him to keep filing petitions after petitions?” Yakub’s life has been prolonged after the two-judge bench of Justice Dave and Justice Kurien Joseph disagreed over the petitioner’s desperate plea to stop his execution before the matter was referred for adjudication to a larger bench. Yet, Justice Dave has as all the time in the world now to reflect whether justice would be served by the convict’s death at the hands of the state.

Dictatorial Inclinations

We would presume that Justice Dave is a man of letters and someone we would expect to be familiar with the raging debate nationally – and globally – of the efficacy of the death penalty. But latent in his pronouncement, in more and less subtle ways, was a description of Yakub’s future dangerousness. Perhaps he was thinking: “Do you really want this man back on the streets?”

Or was Justice Dave swayed by medieval delusions of being a dictator? Isn’t he the same man who, in the manner of a 15th century sultan, declared while speaking at an international conference on “contemporary issues and challenges of human rights in the era of globalisation” on August 2, 2014, that “Had I been dictator of India, I would have introduced Gita and Mahabharata in Class 1?”

Justice Dave perhaps adheres to the economic homily that “you get what you pay for.” And by the way, Justice Dave is a domicile of Gujarat. Thankfully, Justice Dave is not a dictator. Otherwise, who knows how many copies of the Gita he would have forced our children to memorise or the number of people he would have sent to the gallows.

Judiciary’s Retributive Bias

While we should not assume that his origin has anything to do with his arrogance, what is certain is that he represents – possibly the majoritarian view among his brother judges – that part of the judiciary’s moral and political justification for capital punishment is retributive.

Our judges tend to believe that criminals have unfairly taken advantage of the rest of us, committed heinous crimes against people and therefore abstract standards of justice demand that they “pay back” society for their crimes once they are legally convicted. The predominant view is that the most serious crimes deserve the most serious punishment – death.

What is troublesome, however, is that what appears to be arbitrary administration of so-called justice is really disguised bias and discrimination. Capital punishment, seen from this perspective is not a “freak thing” but prejudicial and insidious. This judicial game is played with loaded dice.

While the rest of the world has abolished the death penalty – Uzbekistan got rid of it in 2008 – men like Justice Dave in India hang on to it. It is globally recognised that every person has the inalienable right to life and I wish Justice Anil R Dave a long life.

(The writer is an unequivocal supporter of abolishing capital punishment)