Plainspeak: Keep death penalty for terrorists

Discuss and decide on the advisability of retaining walking to the gallows on the statute, but in cases of terror, keep the element of retribution on hand. Terrorists do not require punishments with the aim of reforming them. They need to be punished to end their participation in the continued low-intensity war, says Mahesh Vijapurkar

It is not as if a person is hanged every day in India. Between 2004 and and 2014, only three hangings took place – though subsequent ones like Yakub Memon’s alter the picture a tad in the longer time line of nine years.  In the seven years, as many as 3,751 death sentences were commuted to life terms. Unless otherwise specified, these convicts could be free after 14 years.

This means the courts and the President take due care to ensure that the extreme punishment is avoided, and the unprecedented manner in which a Supreme Court bench was constituted past midnight to sit into the wee hours to hear a plea from Memon also testifies the effort to ensure no wrong is done even to a convict. Memon was only hours away from the noose.

Having said that, the demand for a review of death sentence on the statute cannot be ignored though, as it is said, it is meant only for the ‘rarest of the rare cases’. It is possible that even judicial minds can make mistakes and reviews of orders by higher courts have led to so many death sentences turned into life sentences.  However, the debate is sullied because the subject is taken up at the wrong time.

Here is how. The debates raged when a rapist who also killed in Kolkata was given the death sentence. Also, when the Nirbhaya case was foremost on public mind which led to some changes in statutes. The outrage against hanging surfaced when Yakub Memon was told that he had to forsake his life for the crimes committed. These were not ordinary crimes.

It would be useful if those who disfavour capital punishment lobby hard, persuade lawmakers to discuss it in parliament. Or help draft private members’ bills to make it a sustained campaign, not, as is seen by the common man, a cause they give life to when a terrible crime is to come to a closure by the death sentence. They would carry conviction enough to persuade the common man that theirs was a valid plank.

Judiciary should not, and hopefully are not, influenced by public opinion.  When eminent persons take up the cause to repeal capital punishment as a means of punishment, expectedly the public outrage only multiples.  The half-informed (thanks to the shallow ‘debates’ on TV and trolling by biased minds) see it as an effort to protect the guilty without taking into account the principle they canvass. The timing detracts from the cause.

Having said that, I advocate death for terrorists. It is a different kind of crime not envisaged when we made our laws. Those coming across the border are waging a war, even if of low intensity. Those who connive with them, and as in the Mumbai’s March 12, 1993 blasts, for which Memon was convicted, are treacherous and deserve the appropriate punishment. Not being awarded the death sentences would actually weaken the fight against terrorism.

Imagine Ajmal Kasab being spared the noose. Even during his trial, the law-enforces were in trepidation that Pakistan could attempt to rescue him. This apprehension translated into decisions to disallow any high rise buildings around the jail where he was locked up, and the trial was held inside the jail which was further fortified. Attempts, successful or not, to rescue them would only upgrade the level of terror.

That alone is not the reason why death penalties are of some import in the fight against terror. Terror is fought in several ways, and all of them together help stave it off. One is to prevent it; we do not have a sterling record in this department, mostly with non-specific alerts from the Intelligence. Two, we are not prepared to deal with it because of the absence of a culture that requires the utmost, not excuses.

Three, terror is spread through violence of the extreme nature, and even the smallest IEDs are not Diwali crackers. When those involved are captured, logic says that after a judicial process, they should be paid back in the same coin. If an innocent can be a victim of terror, even the foot soldier of the masterminds should pay for it, and pay adequately. There is no such thing as major or minor role. There is lot of deliberate planning in the mad plots.

There is a convention that even in conventional wars, the civilian should be spared, and in such wars, certain weapons like mustard gas, and after Vietnam, Napalm was banned from use. These weapons are not like a gun; its impact is felt on a wider arc and takes in the innocent civilian bystanders. In such a world, terror’s aim is to kill and maim the innocent. Such attacks require strong counter steps. Death sentence is one of it.

Would it reduce terror attacks? Unlikely, but it keeps the fight against terror visibly alive. Gives the others – in a vulnerable security scenario like ours, anyone anywhere can be a potential target – a sense of confidence that terror is not countenanced. The talk of “zero-tolerance” has become trite because of the inability to check terror. Those who participate in terror attacks are anyhow those who know their lives are expendable. That is why they got into it.

However, this is no case for retaining the walk to the gallows as a means of punishment for all other cases for which it is prescribed. Discuss and decide on the advisability of retaining it on the statute, but in cases of terror, keep the element of retribution on hand. Terrorists do not require punishments with the aim of reforming them. They need to be punished to end their participation in the continued low-intensity war.