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It has been over a month since we hanged Yakub Memon. Since then many Indians have wondered, what did we achieve? Some are worried that we may have made Yakub into a martyr, especially among a section of Muslims who feel that they are singled out for the death penalty. Others believe that justice was done, sending a powerful signal to terrorists. In a landmark report, the Law Commission, headed by Justice Ajit Prakash Shah, has now recommended abolishing capital punishment, except in terrorist cases. Among its reasons: the state must never be guilty of killing an innocent person; there’s no link between death penalty and the amount of crime; and death sentences are inherently arbitrary, with no principled method to remove arbitrariness. As for me, I believe that keeping a person alive in maximum-security, solitary confinement without the prospect of bail is a far greater punishment than death.

Human beings have long wrestled with the right relationship between crime and punishment. When we lived in tribes, individuals and clans avenged crimes. After we moved into civil society, we gave the state monopoly power to punish crimes under due process of law. However, the idea that ‘if a good person suffers, the bad one should suffer even more’ is embedded in our psyches. We deny it, proclaiming piously ‘I’m not the sort of person who holds grudges’. Yet we applaud when the villain gets what he deserves in life, in novels and movies.

Thirst for revenge is a powerful instinct in human beings. Many psychologists think it bad for it damages the ‘core of the whole being’. Others argue that vindictive emotions are legitimate and bringing criminals to justice restores moral equilibrium in our lives. Thinkers from Plato onwards believed in the legitimacy of retributive justice. Punishment creates moral equality between victim and offender; forgiveness makes the offender superior to the victim.

The other aim of punishment is to deter future crime — provide incentive for a normal person to obey the law. In the past 50 years, public opinion shifted in the West from retribution and deterrence to reforming and rehabilitating criminals. But rehabilitation programmes in prisons mostly failed and criminologists became disillusioned. Today, the global debate is more modest — about ensuring that punishment is fair and proportional to the crime. One is painfully aware, however, how difficult it is to achieve proportionality in practice. Prison sentences vary widely for the same crime in the same country.

Crime and punishment is the central theme of Ashwatthama’s story in the Mahabharata. By all accounts, Ashwatthama was a fine young man —confident, modest and fair-minded. The son of the great teacher, Drona, he grew up in the privileged company of princes. When war is declared, he finds himself on the wrong side. He fights with integrity and in the end accepts the defeat of the Kauravas. He is outraged at the deceitful death of his father, however, and vows revenge. He sets fire to the victorious, sleeping armies of the Pandavas. His night-time massacre is a deed so repulsive that it turns the mood of the epic from martial triumphalism to dark, stoic resignation.

When Draupadi, Pandavas’ queen, learns that all her children died in the night massacre, she cries for vengeance. When Ashwatthama is finally captured, the Pandavas debate over the right punishment for his horrendous crime. Death would be too kind, they agree. Krishna ultimately pronounces the sentence: ‘For three thousand years you will wander on this earth, alone, and invisible, stinking of blood and pus.’

Indians have long felt ambivalent about the death penalty; hence, very few executions have taken place since Independence (57 in 68 years). Most of the world has abolished it — only 36 have not and this includes India and the US. The UN resolution says that it ‘undermines human dignity’. But I am not convinced. I would argue that retaining the death penalty, in fact, enhances human dignity. The most serious argument for its abolition is that it is almost impossible to implement it fairly; why have we not used it, for instance, against the ghastly crimes of the Naxalites? Whether Krishna’s sentence meets the test of proportionality, the Mahabharata has the right idea — keeping a person alive, brooding and suffering over his deed, is a far greater punishment than death.

Gurcharan Das, September 28th 2015

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