Friday, May 07, 2010

On Kasab's sentence

One of our regular readers, Vinod George Joseph, has written a persuasive piece on his blog on why Kasab should be kept alive. I agree with him fully.

I have not read the trial court's judgment yet. But from the newspaper reports, the reasons for the award of death sentence to Kasab are hardly convincing. To cite a few:

1. Keeping him alive will invite Kandahar-type incidents: Apart from the fact that it is speculative and hypothetical, and death penalty cannot be awarded for such reasons, it also exposes our own vulnerabilities and lack of confidence that we could ensure fool-proof security to those who travel by air.

2. Kasab can't be reformed: Absolutely true. That is why Supreme Court has repeatedly said for such offenders life sentence must mean life sentence, and he need not be released till he dies of natural causes. The question of reform of a convict is relevant only if he is likely to be released at some point of time in future.

3. Kasab did not show any remorse:: The question of remorse is a subjective feeling, and can be considered only when he seeks pardon or commutation of his sentence. If he suffers a life sentence, the question of considering his remorse or lack of remorse does not arise.

4. It will be a deterrent: This cliche has no meaning as far as Kasab is concerned. Criminals like Kasab are not afraid of death, and therefore, is unlikely to deter future Kasabs. On the contrary, killing him will invite future Kasabs seek retribution, which will mean putting ourselves to risk all over again.

The public celebration of the sentence in Mumbai, and the public display of glee by the Public Prosecutor over the sentence reveal what would have been the response had the Judge given Kasab life sentence rather than Death penalty.

7 comments:

Ajat said...

Dear Venkatesan,

I agree with you that the cited reasons are unworthy of being reasons either to hang or not hang Kasab. At best, some such as the fact of him not having shown remorse may be an aggravating factor in the sentencing. The problem with your argument and the Vinod George's argument is that it makes death penalty sound like a policy decision the Court must take. It is clearly not such a question of policy but rather a legal question of whether this crime falls in the category of "the rarest of the rare." And if killing 160 innocent people wantonly is not the rarest of the rare, then I'm frankly willing to be educated on what such a term might mean.

The normativity of having the death penalty on the books itself is a different question altogether. But to say that the judge should not have given it in the instant case is unfair on the judge and in my opinion a legally incorrect position to take.

Shashank said...

Justice Handy's opinion from Lon Fuller's "The Case of Speluncean Explorers" discussing the role of public opinion in criminal justice immediately comes to my mind.

http://www.nullapoena.de/stud/explorers.html

S

Tarunabh Khaitan said...

i completely agree with ajat that the penalty is not a policy question but one of law. but apart from the substantive question of 'rarest of rare' doctrine, one needs to see whether the procedural and other limitations placed by the Supreme Court in Santosh Bariyar recently were complied with in this case. if not, defense will have a good ground to challenge the decision, although the remedy for not following the procedure will probably be to send the case back to the trial court. in other words, it will, at best, buy some more time.

Winnowed said...

Ajat, your comment is very valid. I realise that even if the judge wanted to, in the absence of an amendment to the IPC, he could not have sentenced Kasab to spend the rest of his life in jail. There is a crying need to amend the IPC so that judges have the option of awarding “Imprisonment for Life” as a punishment rather than having to choose between imprisonment for 14 years and a death sentence.

Ajat said...

Dear Winnowed,
I think there's a decision by Justices Srikishna and Balakrishnan given sometime in 2005 which says life is not 14 years but the rest of the convict's life. I can't remember the name of the case but distinctly remember the ratio. That could technically have been cited and used by the judge. But he would still have to show that this is not "the rarest of the rare" which I think would be quite difficult.

Winnowed said...

Ajat, the point I've been trying to make is that imprisonment for life is as harsh a punishment, if not harsher, than a death sentence. Imprisonment for life can therefore be awarded for a "rarest of the rare" offence

Salil said...

Thanks for these sound, succinct reasons why the death penalty does not makes sense. I wrote the following in my Mint column today, which I thought readers of your blog might find to be of interest.

http://www.livemint.com/2010/05/12202838/The-real-idea-of-justice.html?h=D

Thanks; Salil