In my shoes: Contemplating Capital Punishment

Ever since the arrest of Ajmal Kasab, for his association with the horrific violence unleashed in the city of Bombay in November 2008, there has been a media-orchestrated, orgiastic baying of his blood from large sections of the Indian populace. So deep and profound has this orgy been, that subsequent to the confirmation by the Supreme Court of India, of the death penalty awarded to him, there have been demands that this execution be carried out in public. Buoyed by this energy, public spirited citizens have even come forth offering their services as the hangman.

Also present in this melee however, have been the voices of a stubborn minority that have argued their principled opposition to the death penalty and persistently argued against the penalty, be it for Ajmal Kasab or anyone else. The arguments against the death penalty are numerous; one of them being that it is not for the State (or anyone) to take human life. The theistic would add that life that has not been given by us, cannot be taken away by us. Further, is the more pragmatic argument, that given the possibilities of a variety of factors impacting on the trial and judgment, there is always the possibility of the wrong person being killed for a crime they did not commit.

To these arguments, the fierce response has been that there can be no doubt that Ajmal Kasab was involved in the violence in Bombay; and further, who are we to talk, given that we were not the ones to loose family and loved ones in those terrible days in November 2008. It is in face of the latter argument that I have invariably fallen silent, for truly, without being in that position, how do I know what my response would be in a similar situation? If it were my people that had been butchered, would I not, perhaps, also have joined in the demand for blood?

The judgment in the case of Babu Bajrangi and Maya Kodnani in the Naroda Patiya massacre, associated with the Gujarat pogrom of 2002, seems to allow the space to finally provide an ethically honest response to this question that until now invariably silenced me. The Naroda Patiya massacre involved a mob of Hindu nationalists who mutilated and killed around 97 people. Leading this mob and encouraging them in acts of extreme violence, acts that included the disemboweling of a pregnant woman and the spearing of her foetus, were Maya Kodnani and Babu Bajrangi.  A week ago, Ms. Kodnani was sentenced to 28 years in prison, while Babu Bajrangi was sentenced to life imprisonment. The death penalty was not awarded to either these two, or the others convicted along with them.

I have no blood-links with the people killed, maimed or dispossessed in the course of the 2002 Gujarat pogrom. However, like many others, I have good reason to identify intimately with them. The 2002 pogrom was not merely a ‘warning’ to Muslims in India, but to all minority (not merely religious) groups, that this sort of violence could be visited upon them next. We have seen such violence in Orissa, in Assam, and more recently in South Kanara. Given that that some of my dearest relatives live in Mangalore, the violence in Gujarat is not an external event. It marks the approaching drum-beat of a savagery that could easily mar my own life. Those people in Gujarat could easily have been my very own. Also, just as the persons baying for Kasab’s blood are emotionally invested against him and all that he stands for, I too, am emotionally invested against Kodnani and Bajrangi. And yet, after careful thinking, I am convinced that I am not in anyway desirous of their blood. I do wish to see them jailed, and put away for a good period, but I do not wish to have their blood on my hands.

As many of us who have opposed the death penalty have often emphasized, the issue at stake in the opposition to the death penalty is not about what happens to persons who have committed a crime heinous enough for us to want their death. The point is what does instituting, and perpetuating the death penalty do to us as people, and as a polity. The impact it has should be obvious to even a casual observer of recent Indian politics, where the death penalty has become the penalty of choice for practically every offence, ranging from corrupt practices, to rape. To set ourselves on this path, is for us as a polity to lose the meaning of the value of human life and to persuade ourselves that killing is a valid answer for harms done to us. Supporting the death penalty does not close the cycle of deaths perhaps commenced by the criminals, it only perpetuates the cycle, trapping the living in a ceaseless cycle of death.

Before concluding, I would like to turn the issue around, and ask those in favour of the death penalty, why the same death penalty apparently justified in the case of Kasab, was not afforded to Kodnani and Bajrangi? On the face of the matter, there should be no doubt that Naroda Patiaya massacre constitutes a terrorist activity. Further, if one examines the case objectively, one realizes that the crimes committed by Kasab and his accomplices, and by Kodnani-Bajrangi, and theirs, in fact partake of a profound commonality. Both crimes, those in 2008, and those in 2002, were violent crimes against innocents, robbing them of their life. Furthermore, if one recognizes that sovereignty in India, as in other republics, stems from the collective of the people, any attack against the people, is an attack on the sovereignty of the State. Both crimes were by this logic, and as is popularly agreed in the case of Kasab, against the people of India, against the sovereignty of the State. In the Gujarati case, this attack on India’s sovereignty was because it willfully challenged, not just the rule of law and order of the Indian State, the host of fundamental rights it guarantees its citizens, but also the ethic of a secular system that the Indian Constitution is committed to. If Kasab is held worthy of the death penalty, why not Kodnani and Bajrangi? Do you see how the demand could go both ways?

The response against the death penalty was provided by the judge of the special court set up to try these cases, Jyotsna Yagnik. It is reported that she felt the death penalty “was against “human dignity.”” If then, the death penalty is against human dignity, and the crimes of Kodnani and Bajrangi rank on a similar conceptual scale to that of Kasab, should we not argue, using our principled opposition to the death penalty, that a similar clemency, and basic respect for a human being be shown to Kasab?

We would need to show this clemency for Kasab and others languishing on death row for crimes against the Indian State, because there is probably a very deep anti-Muslim bias (a bias that simultaneously operates against a number of similarly marginalized communities, and dissident groups in India) that is operating behind the sense of justice that accompanies the demand for capital punishment for them.

We should be grateful that Kodnani and Bajrangi were not awarded the death sentence, because it offers us the opportunity to halt the mindless cycle of eye-for-an-eye and tooth-for-a-tooth that India seems determined to get into. We need to begin this halt of life-taking somewhere, and it is best that this halt begin with us, those of us who are opposed to the death penalty, even as we know, that someday, we could be the victims of murderous violence, by people who quite firmly believe in the death penalty, for crimes real or imagined, judicially supervised or otherwise.

(A version of this post was first published in the Gomantak Times on 5 Sept 2012)

Critical Choices… When the soul of a nation hangs by a thread

There is a moment from the Steven Spielberg film Munich that I cherish. In this particular moment, the bomb maker Robert is beginning to have doubts about the morality of killing the persons whom the Mossad held as responsible for the brutal killings of Israeli athletes at the Munich Olympics in 1972. And so it is that Robert says ‘We're Jews…Jews don't do wrong because our enemies do wrong….Suffering thousands of years of hatred doesn't make you decent. But we're supposed to be righteous. That's a beautiful thing. That's Jewish. That's what I knew, that's what I was taught and I'm losing it. I lose that and that's everything. That's my soul.’

This cinematic moment has been replaying itself in my head over and over again ever since the drama around Kasab’s punishment erupted in the Indian media space. It would be worthwhile for us to examine this issue of capital punishment for Kasab from the doubts that Robert has in Munich. Robert captures the dilemma perfectly in his phrasing. Suffering, even if for a thousand years, does not make us and our actions righteous. Thus the real sufferings of those who lost family and friends through the violence in Bombay, and the alleged sufferings of the Indian nation are not reason enough to justify the Indian state’s killing of Kasab. What we should be the real focus of our debate is what the killing of Kasab will do to all of us as Indians. This is what should be the focus of our discussion. And this is what Robert realizes after he has sufficient blood on his hands; that all that killing is making him loose his soul. And at the end of the day, the loss of his soul is too much to bear.

The loss of our collective souls and the loss of the humanity of the Indian nation-state is what we stand to loose through the State killing Kasab. The Indian judicial system assures us that capital punishment is to be awarded only in the ‘rarest of rare cases’. This may in fact be true, where a higher court may hold that a decision granted by a lower court was irresponsible and overturn the sentence of capital punishment. But this is not the point. The point is what does the presence of the death punishment do to us as a people of the legal system.

The Kasab case is a wonderful example of what is being done to us. No one will deny that we have been turned into an audience in this particular case.And the audience in this particular case has been turned into a blood thirsty mob, crying and screaming for the blood of this man. This audience is presented with actors, such as the prosecutor in the case, Ujjwal Nikam, who argues, contrary to the supposed ‘rarest of rare cases’ principle, that all terrorists should be given the death penalty. In the environment that has been generated in this particular drama event, what has been done is to convince so many Indians that indeed terrorists should be given the death penalty. What we do not realize though, is while in Kasab’s case it can be proven that he was stomping around Bombay spraying people with bullets, this is not necessarily the case with every alleged ‘terrorist’. The justice delivery system can sometimes go wrong, the wrong person implicated, the reasoning of courts clouded by fear and nationalist sentiment, and innocent blood can be shed.

Further, a situation where we start baying for blood and believe that all terrorists should be given the death penalty allows for State killings outside the law. Take for example the case of the Batla House ‘encounter’. We know now that the boys killed in the Batla House shootout, were innocents, and victims of a fake encounter. Fake encounters are a fact of life in India, where numerous Muslim boys are routinely dragged and shot. Tribal boys too, under the suspicion that they are Naxals. And let us not forget the trouled areas of the north-east. Allowing for the death penalty creates a certain callousness in our souls, where we shrug off these deaths. Even if we do not shrug these off however, we should remember that we are responsible for these deaths, in allowing for the existence of the death penalty.

What we should constantly keep reminding ourselves is that Kasab is not the point in the debate that is emerging. The point is the soul of the Indian population. The point is not what we can or will do to Kasab, or what he deserves. The point is what will become of us after he is gone. The attempt of the criminal mastermind is to breed bad blood between peoples. Thus either Kasab, or the forces that sent Kasab on his mission, intended that there be tension and escalating violence between the people of India and Pakistan. The idea is to create a state of permanent tension within India. If we kill Kasab, and do so after the kind of frenzied calls for his blood that have marked his trial, then Kasab will not have died in vain. He and his directors will have succeeded in the larger campaign that they have in mind. What we will have done, is to convert the peace loving people of India into a blood thirsty mob. Create a by-and-large gentle, trusting people into a suspicious collective of witch-hunters. The real victor of any battle is the one who winds up with the options. The option still rests in our hands, and we can determine the real extent to which Kasab has impacted on us. To allow Kasab and the forces he has been made to represent to transform us in this manner is to allow them to win and have the final laugh.

It is true that we have to deal with Kasab one way or the other. The way the system operates is to punish him. If one is thinking of punishment, and the inclination is towards death, then allow me a suggestion. The suggestion is that of social death. Let his name be struck from the records and his name never be spoken again. The violence he wreaked will not be mentioned, his efforts will have been in vain. At the same time, let us reach out to those who have been impacted by the violence he and his colleagues effected. In doing so we will strengthen the bonds of loving brotherhood that reputedly make India the nation that it is, and the country it wanted to be at the start of its independence.

The Jews have constructed a history of thousands of years of suffering. And yet, as the Robert of the film Munich points out, the soul of Judaism lies in persevering in righteousness despite these sufferings. India is acclaimed as a spiritual land. It is to this heritage that it owes the obligation to realize that in killing Kasab it will loose the battle of righteousness and walk into a battle where the lines are scripted by the forces of discord on the other side. Like Dronacharya told Arjuna, focus on the eye of the bird in the tree, nothing else. Kasab at the end of the day is a part of the larger forest, the Kauravas even. Our goal, our true goal, lies elsewhere. But at this moment, it hangs by a thread. My prayers are for the soul that India risks loosing.

(First published in the Gomantak Times, 12 May 2010)