The politics and poetics of death

Yakub Memon, a convict in the Bombay serial blasts case of 1993, was hung by the neck until death on July 30, 2015. He had turned 53 on that day. A ghoulish birthday gift by the Indian state, to say the least.

An article written by a former Research and Analysis Wing (R&AW) officer, the late B. Raman, in August 2007, tells the tale of Memon’s cooperation with the intelligence and investigation agencies. In it, he alludes to a “commitment” made by the Indian state to Memon in return for his assistance. If indeed that were true, and there is no reason to believe otherwise because by all accounts Raman was an honourable man, there would certainly be a paper trail in some government file classified as “secret”. No officer would have made a commitment in a matter of such import without authorisation from the political masters. If for nothing else then to cover his own posterior. It merits an inquiry because jurisprudentially, courts in other parts of the civilised world have been candid enough to admit that they erred in handing down the sentence of capital punishment even after the execution.

Muslim leaders and even distinguished columnists correctly ask why three Muslims held guilty by the courts, and their mercy petitions rejected by the President of India, have swung from the gallows, while others who have been held equally guilty by the courts long before them and had their clemency petitions rejected by the President or the respective governors, continue to live.

What are going to be the physiological implications of this conduct on a community that is combating both a siege mentality and ghettoisation ever since the Partition of India may be hard to predict at this point in time, but they would surely be menacing. What Yakub Memon’s hanging has done is that it has brought the focus back on the entire issue of death as a penalty for criminality.

The legality of the death penalty was validated by a bench of five justices of the Supreme Court of India in Bachan Singh vs State of Punjab in 1980, by four in favour and one against. The lone non-conformist, Justice P.N. Bhagwati, declared that death penalty was repugnant to the provisions of the founding document of the Indian Republic: “It is obvious on a plain reading of Section 302 of the Indian Penal Code which provides for death penalty as alternative punishment for murder that it leaves it entirely to the discretion of the court whether to impose death sentence or to award only life imprisonment to an accused convicted of the offence of murder. This section does not lay down any standards or principles to guide the discretion of the court in the matter of imposition of death penalty.”

Over time, in almost identical cases of abhorrent crimes, courts have arrived at wholly contrasting decisions. Dhananjoy Chatterjee is the last convict to be executed for acts that cannot be designated as an archetype terrorist transgression. He was held culpable for the rape and murder of a teenager residing in the apartment block where he was assigned as a guard. Even the SC upheld his conviction and classified it in the “rarest of the rare” category in 1994. Subsequently, even the late President A.P.J. Abdul Kalam, who had publicly expressed his discomfort with the concept of capital punishment per se, rejected Dhananjoy’s mercy petition and he dangled at the end of a hangman’s rope on August 14, 2004.

In contradistinction is the case of Amit vs State of Maharashtra, where Amit had been convicted for the rape and killing of a 12-year-old girl. In 2003, the Supreme Court held that he was young, with no previous record of odious offences and would not be a threat to humanity. Death penalty was commuted to life, holding that the case was not “rarest of the rare”. Is it really possible for even the most evolved judges to really make a cogent distinction between the cases of Dhananjoy and Amit? Would it not be a brief that is impossible?

Another instance is the case of Vasanta Dupare, a 47-year-old man who raped a four-year-old girl and then murdered her by crushing her with stones. Dupare, a repeat offender, was given the death penalty by the trial court. It was upheld by the high court. In 2015, a three-judge bench of the Supreme Court concurred that it was unlikely that Dupare would be reformed, was likely to remain a menace to society and hence deserved to be given the death penalty.

Now discern the contradiction with the case of Neel Kumar who raped his own four-year-old daughter and then killed her. The apex court said the case did not fall within the “rarest of the rare” category since there was no reason to believe that Neel Kumar could not be reformed.

Intriguingly, in Shankar Khade’s case, the apex court in 2013 observed that there was no fair process of “conferring” death penalty or thereby commuting it to life. And, that the application of the “rarest of the rare” principle was exceptionally friable. These doubts are identical to those raised by Justice Bhagwati in his celebrated dissent.

Why was it so that Dhananjoy and Dupare were given the death penalty for crimes that were similar to the ones Amit and Neel Kumar committed, while the latter were spared the noose? Such incongruence bolsters the argument that this is primarily based on the “eminence” who presides over the matter — much like the disposal of mercy petitions that are circumscribed by the personal predilections of the person occupying the highest office in the country — and not on any merit at all.

The writer is a lawyer and a former Union minister. The views expressed are personal. Twitter handle @manishtewari