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India: The Question Hangs

Published in: Outlook

Ajmal Kasab’s execution marks an end to India’s widely hailed unofficial moratorium on capital punishment since 2004, when prime minister Manmohan Singh’s government took charge. It signifies a sad regression in India’s near-decade move away from the death penalty. Indian law allows for the death penalty, and death sentences are handed down by courts with some frequency. However, a 1980 Supreme Court ruling established the doctrine that the death penalty should only be used “in the rarest of the rare” cases. A single execution was carried out in 2004 after a lengthy unofficial moratorium earlier.

Human Rights Watch is opposed to the death penalty under all circumstances as an inherently irreversible, inhumane punishment. It is a practice abolished by a majority of world states. On December 18, 2007, the United Nations general assembly passed by a wide margin a resolution calling for a worldwide moratorium on executions. In fact, the international community had moved further towards abolishing the death penalty on November 19, 2012, when 110 countries approved a general assembly draft resolution calling for a moratorium on executions. India was part of a tiny minority that voted to retain capital punishment, arguing for it being used sparingly, and in cases of particularly heinous crimes.

In Kasab’s case, the “rarest of the rare” doctrine was upheld, considering the seriousness of his crime. However, apart from violating the very principle of the right to life, to those that celebrate his death as a step towards justice for the Mumbai attacks, bigger questions remain. Will his death serve as a deterrent? After all, Kasab had been sent on a suicide mission. He committed these acts and was prepared to die in the process. And this execution has fulfilled that mandate. More crucially, in the interest of justice, have the right people really been punished? Those that plotted the attack and deployed these deadly killers remain at large, or are yet to be convicted.

However, the “rarest of the rare” principle is in itself faulty, with interpretation left to the discretion of individual judges who are vulnerable to fallible judgements based on fallible evidence. On July 14, 2012, retired judges asked India’s president to commute the death sentences of 13 inmates erroneously sentenced by the Supreme Court. This followed the court’s admission that some of these death sentences were rendered per incuriam (out of error or ignorance). In November, the Supreme Court conceded that the “rarest of the rare” standard has not been applied uniformly over the years and the norms on death penalty need “a fresh look”.

It is thus essential that India demonstrate that Kasab’s execution was an aberration rather than a return to the days of widespread application of the death penalty. The government should now announce an official moratorium on the death penalty, and then work towards abolishing it altogether. The death penalty is an act of cruelty that should never be used, not least because of its negative and brutalising effect on society.

Former Time reporter Meenakshi Ganguly is the South Asia director at Human Rights Watch.

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