Contours of the Death Penalty Debate – Part II

Responsible liberal intellectuals would be aware that the modern constitutional jurisprudence has been developed after centuries of evolution by the systems in these societies.

Mitigating Circumstances

The mitigating circumstances with regards to Yakub were noted by the Supreme Court as :

225-2

Since these two aspects are interwoven, it is difficult to segregate the two to somehow conclude that all circumstances relating to the crime are aggravating but circumstances relating to the criminal are mitigating. Critically, the penalty imposed must be proportionate to the gravity of the crime and the degree of responsibility of the offender must be taken into account in determining the sentence for an individual accused in addition to aggravating and mitigating circumstances. Clearly, the Supreme Court, in its wisdom, felt that the aggravating circumstances far outweighed the mitigating circumstances. The only possible criticism from this record could be the disagreement over the degree of Yakub’s guilt based on the facts recorded by the Special Court – a question the Supreme Court normally does not deal with.

Procedural Lapses

The assertion of ‘procedural lapses’ in the process is based on rather rigid and myopic interpretation of the procedural laws. At the outset, it is necessary to clarify the jurisprudential position of procedural laws within the justice delivery system:

Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Courts are to do justice, not to wreck this end product of technicalities

The Shatrughan Chauhan judgment promised 14 days grace period between the rejection of a mercy petition and the execution. The President rejected Yakub’s mercy petition on the 15th of July 2015 and the execution was fixed on the 30th of July in consonance with the precedent of the Shatrughan Chauhan judgment. Meanwhile, Yakub filed another mercy petition following the public outrage that is often linked with such executions in India, cleverly exploiting the absence of law barring the number of mercy petitions and the 14-day grace. This measure, as is fairly alleged, was to further create an opportunity to create an atmosphere of public and political sympathy for the accused so as to extra-judicially influence the Supreme Court. The Supreme Court, in all fairness, could have declined to even hear the matter after the dismissal of the first mercy petition and the final affirmation of the 29th of July.

Yakub MemonThe Court though, heard the matter till 5 AM on the 30th of July dismissing the abuse of process being carried out at the instance of certain parties. The criticism of the procedure surrounding the mercy petitions and the technicalities therein was stretched to the extent of stating that there were ‘major procedural lapses’ in the case. This criticism ignores how competently the Indian justice system functioned in light of the horrific incidents in 1993 so as to give the accused an opportunity of not just being heard, rather being protected by the highest parameters of criminal and human right jurisprudence before pronouncing him guilty. Most systems would have long collapsed in the wake of mass public outrage concerning the matter prevalent during the 1990’s. Interestingly, one of the most reasonable people who represented Yakub, Mr. Rishabh Sancheti, as one of few still sane voices, exclaimed after the 5 AM verdict – “Hope died, man died, justice lived.”

Nuanced Debate vs. Activism

Without prejudice to the abovementioned arguments, it would still be reasonable to argue against the death penalty as a matter of ideological conviction for ideology is hardly a prisoner to reason. Sometimes the criticism of the judgment was been lazily branded as ‘anti-national’ without appreciating the ideological complexities of the matter. The presence of genuinely non-political and respected legal minds like, Justice A.P. Shah, Raju Ramachandran (erstwhile Add. Solicitor General in the Vajpayee Government) and Anup Surendranath in the criticism of the judgment, has given weightage to the ideological opposition against death penalty. But in such a tense debate, it becomes very important where the line is drawn. The second sinister mercy plea, the editorial frenzy and the opposition to death penalty were a part of a dense plain of intellectual debate on the subject. The ideological opposition to death penalty and the legal questioning of the judicial process must be defined as the spectrum of the nuanced debate.

People who have the sense of delicacy and fragility of the issue, declined to take a vocal stance gauging that it may provide unwanted ammunition to either side having long term trickle down implications. During that time, there were serious apprehensions that criticism of the judgment would be wrongly perceived as the abdication of Yakub’s guilt considering the warped political narrative. The trickle down effect of this debate created doubts regarding the functioning of judiciary, strengthening the belief in many sections in the logically impossible assertion of ‘innocence’ of Yakub.

Somewhere between the questioning of the degree of Yakub’s guilt and the negation of Yakub’s guilt, lies the point of no return in the debate. The criticism of the judgment often blurred the lines between fair criticism and support to the activities of the accused ignoring the massive socio-political implications it may had on the minority community. The inevitable byproduct of the highly technical criticism of the sentence of Yakub was trickling down of the prejudiced, misinformed and radical opinion that the judiciary and the Indian State executing an apparently ‘innocent’ accused from the minority community. In light of prevailing political climate and the insatiable thirst for class conflict along the lines of caste and religion amongst some intellectuals has stoked the country’s delicate faultlines of religious identity and nationality.

Considering the above-mentioned arguments, it is indeed anti-national to trivialize or negate the guilt of the accused, and indeed anti-national to portray him as a martyr or a hero. As soon as, the discussion changed from the apolitical reference as ‘accused’ to the politically useful reference of ‘Yakub’, the issue was politicized further strengthening the siege mentality amongst the radicals. This sympathizing deepened the cleavages within the classic Islamic minority identity in India perpetuating the ludicrous idea of the Indian State, i.e. the government, the police and the judiciary, being unfair on the community. Fortunately, unlike personal laws in this country, criminal laws are applied irrespective of religious background otherwise one may had to deal with arguments in favour of rationing of sentence in cases of terrorism.

Marriage of Convenience

If what is alleged on social media regarding Ambedkar Students Association and their banners, which talk about “giving birth to a 1000 Yakubs” and “Yakub’s blood giving birth to a revolution” is to be believed, the fair and maybe bona fide criticism of the judgment, has resulted in something alarming but hardly surprising. Every responsible intellectual had apprehended this obvious possibility wherein ill-timed criticism of the judgment and / or ideological opposition to death penalty would be perversely interpreted by radical forces as support for the agenda against the Indian state. The hero-fication of Yakub had started soon after his death, as after his namaz-e-janaza, more than 5000 people ‘paid tribute’ to his corpse and several Marxist intellectuals had candle light vigils remembering him. Consider how this has resulted in the shallow level of rhetoric prevalent amongst the rather educated and informed Ph.D. scholars in Hyderabad. And if this was the reaction in the mainstream, it can be anyone’s imagination how Yakub may be remembered in most faith schools in the country.

vemulaRecently in a mosque in Bhopal, Yakub’s judicially established acts of terrorism were referred to as ‘minor indiscretions’, somewhat paradoxically in the backdrop of demanding the death penalty for Kamlesh Tiwari. Similar incidents occurred across the country on one pretext or the other. The collective conscience of such gatherings is certainly not opposed to the death penalty as a punishment; rather it seeks Sharia-esque death penalty for the ‘crime’ of blasphemy. Unfortunately and ironically, the most liberal principles of criminal jurisprudence are being misinterpreted in favour of imposing one of the most shallow, draconian and barbaric systems of criminal justice.  Hence, as soon as the question of guilt was raised, the Pandora’s box was opened resulting in splintering the nuanced stand of reasoned intellectuals. While no judgment is perfect and the Supreme Court is indeed supreme but not infallible, the criticism on the judiciary on this issue has permitted unthinking, uninformed, radical, grossly inconsistent and frankly pseudo-intellectual voices to take over.

Responsible liberal intellectuals would be aware that the modern constitutional jurisprudence has been developed after centuries of evolution by the systems in these societies. The ignorance of the intelligentsia and the systematic ideological imposition of staunchly ‘liberal’ defined political correctness is degrading the same institutions that laid the foundations of the renaissance and shaped the Constitutions of various democracies. The Marxist affinity for class conflict and siege mentality, coupled with the political expediency, has the liberal thought in a twist. The inability to separate the fashionable anti-state and anti-establishment stance from the radical anti-state terrorist stance has been the kryptonite for the liberals. Knowingly or unknowingly, the ideological fodder for radicalization and is being provided and nurtured by the same ‘liberal’ forces which once represented the strength of our societies.

Interestingly, this marriage of opposites between the radical forces and the liberal intelligentsia is not something peculiar to India. What sells in India as ‘secularism’ is quite similarly sold in Europe as ‘multiculturalism’. If one considers the ostrich-esque debate surrounding the refuges and the concerns it may bring up within the next few decades, the propping up of faith schools and sharia courts in Britain, the horrific and abhorring ignorance in Rotherham, the outrage over banning of burkha in France, the Malayam Singh like statement of the Cologne mayor following the incidents on New Year’s Eve in Germany, point towards a serious issue wherein the intelligentsia has perfected either solemn ignorance or calculated distraction. Such is the tide of time that the liberal principles for which our forefathers fought so bravely for, are being prostituted at the altar of radicalism. And the world seems to be in denial.

kanuagar@ifrc.co.in'

The author is an Advocate practicing in the Supreme Court and a graduate of the National Law Institute University.