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RARE AND CRUEL
- Kasab’s hanging portends ill for the nation’s future

The attack on Mumbai on November 26, 2008, in which so many innocent lives were lost was an act of horrendous barbarism. It was masterminded, in all likelihood, by persons within Pakistan’s ISI, which, from an intelligence agency, has grown into an organization of terror that nurtures a vast network of terrorist outfits swearing by Islamicism. Every effort of the Indian State to bring to book this organization and counter its designs needs to be supported. But the hanging of Ajmal Kasab, who, though directly responsible for carrying out the attacks that took so many lives, was a mere minion acting on orders, does not serve this purpose in the least. Indeed it does more harm to the Indian nation than to the ISI, or to Kasab’s jihadi outfit supported by the ISI.

The hanging cannot be justified as a means of denting the morale of Kasab’s controllers. They could not care less about his fate: he was too small a fry, easily replaceable, and in any case of no use to them after he was captured. His subsequent fate is not a matter over which they would have lost much sleep.

For the same reason, it cannot be justified on any strategic considerations, such as what Robespierre had advanced for the execution of Louis XVI during the French Revolution. He had been opposed to capital punishment and had even resigned in his youth from his post as a judge because his conscience would not allow him to sentence a person to death. But even while re-affirming his opposition to capital punishment, Robespierre had supported before the Convention the death penalty for Louis XVI with the words, “neither prison nor exile can render his existence inconsequential to public happiness”.

Nobody can claim that Kasab, for all his past crimes, would have been “consequential to public happiness” in the years to come if kept in prison. On the contrary, not hanging him would have imparted the grandeur of humaneness to the Indian State that, if anything, might just have had a deterrent effect on a few of the other Islamicist terrorists training across the border. The deterrence exercised by not hanging him would have been certainly greater than the deterrence exercised by hanging him.

Many, including those disquieted by the hanging, would say that it was the execution of a judicial pronouncement and that nothing could be done about it. This is not true. The judiciary pronounces a judgement and awards a sentence; the carrying out of the sentence is the responsibility of the executive. In the case of a death sentence, the executive is explicitly empowered to exercise its discretion on whether to implement it or not; the decision of a presidential pardon is the means of exercising this discretion. If the judiciary insists upon its sentence being carried out, then the judiciary is exceeding its jurisdiction. And in the present case, there is no evidence of its having done so; otherwise the home minister, Sushil Kumar Shinde, would not have said in an interview that Kasab’s hanging shows that he (Shinde) is not a weak man. His laying claim to a macho image on the basis of the hanging of a young boy clearly shows where the decision to hang Kasab was taken.

But, it may be asked: what is wrong with carrying out a death sentence handed down by the judiciary, which has already taken note of the “rarest of rare cases” stipulation? The simple answer is that a civilized and humane society must abjure capital punishment, even when the prevailing laws provide for it. A democratic State subsisting upon such a society cannot deal with a person convicted of committing a murder by itself murdering the person; this would mean an exactly identical action, a mirror image of the crime committed by the convict, as distinct from going beyond the entire discourse of taking lives. Many may be unaware of the fact that one of the first acts of the Bolshevik Revolution was to abolish the death penalty; though this had to be rescinded because of the grim reality of the civil war, the direction in which the revolution’s preference lay was clear. And the tendency within European social democracy has been either to remove death penalty from the statute books or to abjure it even when it exists in the statutes.

The death penalty becomes particularly unacceptable when carried out in the case of a young boy. True, Kasab had shown no remorse for his actions; but in a person so young, the absence of any immediate remorse does not foreclose the possibility of later repentance. And the chances of repentance increase greatly when the convict is confronted by a humane response from the State. The State acting at the same level of discourse as the convict, presenting a mirror image of the cruelty of the convict, serves retrospectively to justify the convict’s action to himself.

The argument that seeks to justify capital punishment on the grounds that this is the only way that justice can be secured for those who have lost their near and dear ones is a non-sequitur: the surviving relatives who, of course, deserve the fullest sympathy from society can hardly be expected to adopt a societal perspective in the face of their immense private grief, and the anger they understandably have against the person who is the cause of this grief.

When Michael Dukakis, the American presidential candidate in 1988 who had opposed capital punishment, had hesitated to answer a question about what he would do if his own daughter was murdered, a hesitation that had contributed to his electoral loss to George Bush the senior, the hesitation was natural: private grief and a public position, which must reflect one’s view on societal priorities, are two entirely different things. The questioner had unfairly and mischievously conflated the two, demanding that a person’s position as a citizen must be the same as a person’s position as a private individual. The same conflation is being done when the grief of the victim’s family is used to justify capital punishment as society’s way of dealing with criminals.

The hanging of Kasab portends ill for our nation’s future. When the home minister claims that he has refuted allegations of weakness by this hanging, the immediate question that arises is, in whose eyes? Obviously in the eyes of those who were making these allegations, notably the Hindu Right. The fact of the home minister of the country being concerned about his image with the Hindu Right, internalizing the perspective of the Hindu Right, and justifying himself to the Hindu Right, is deeply disturbing, not only in itself, but also because this Hindu Right has been demanding the execution of a host of others, including Afzal Guru. The home minister, by internalizing the perspective of the Hindu Right, has deprived himself of any credible argument to resist its demand to carry out other such executions, which will only contribute to the creeping fascism that we are witnessing around us.

A symptom of this has been the almost complete absence of any criticism in the media of this hanging. One would have expected the electronic media, obsessed with ‘bites’, to have gone to town debating this hanging. One would have expected the print media to comment editorially on the implications of this hanging. Instead, what we had were reports of the “glee” that the nation has supposedly felt because of Kasab’s hanging. What this indicates is not only a disturbing conformism on the part of the media to what is perceived as politically correct, but also a disturbing appropriation of what is politically correct by the Hindu Right. It is both a legitimization and a further consolidation of a culture of cruelty, of the sort that typically underlies fascism.

We have obviously relinquished the humaneness that the “father of the nation” preached. The Hindu Right was always opposed to it anyway; now even the Congress government, hegemonized to a degree by the Hindu Right, is abandoning the Mahatma. What is still more dis- quieting, however, is that even someone like Anna Hazare, who speaks in the name of the Mahatma and claims to be the carrier of his legacy, has imbibed this culture of cruelty to a point where he has demanded that Kasab should have been publicly hanged. The fact that against this chorus we have had a deafening silence from the opponents of such hanging is what bodes ill for the nation.