The Noose or the Caboose?

Can society gather the wisdom to decide on a punishment as irrevocable as death?

In a previous issue, we carried an article on this page dealing with the death penalty. We had promised Moneylife readers that we would keep our ears to the ground for further developments. We have. For those who had missed the issue (dated 20 March 2014), the piece was about a man, convicted 35 years ago for a double murder. He was found to be mentally challenged. The question was whether such a person can be legally ‘executed’. The Supreme Court of America ruled in the matter.

While the judgement left many questions unanswered, it did agree with this writer’s view on one thing. And that was the validity of intelligent quotient (IQ) tests. Can IQ tests be an accurate barometer of a momentous decision like extinguishing a life or not? The Court said it was not enough. The margin of error, acknowledged even by experts, was too great to satisfy the Court.

You be the judge.

The law said that a person with an IQ of less than 70 needs no mercy. What about a person who gets a score of 70.5? Should that slightest bit of extra brain power make a person eligible for execution? When does mens rea (guilty mind or intent) kick in? The normal acceptance of error is + or - 10%. So what if someone clocks 80.5? The latest buzz is that the death penalty must be abolished.

The Europeans have done so and that translates into a guarantee, from countries like India, that extradited persons will NEVER be executed. Remember Abu Salem? So, if a terrorist escapes to Europe, he is forever safe from the gallows—whether or not he is sent back. But if his partner is extradited from another country, he could possibly be put to death, after his trial and conviction.

This could lead to two sets of rules for different persons; for the same crime. Take, for instance, two terrorists. One is a trigger-happy kid. The other is a planner, supplier, logistics man, accomplice to the crime, a resident. He does not flee. Fleeing would be a sign of guilt. The gunman then goes to Europe from where he is legally evicted and handed over to the Indian authorities. He rats on his colleague. Both stand trial for murder, accomplice to murder and sedition.

You be the judge.

The actual murderer gets life; the other death! Article 14 in action? Or dysfunctional? Such are the vagaries of law. But does one know of anything better? Discovering problems is easy. Finding solutions is the heavy part. Should we do away with capital punishment, a civilised euphemism for legal execution? Do we keep prisoners at State expense for the rest of their lives? Should taxpayers’ money be continuously spent on a Kasab, who may have lived for 50 more years? And then there is always the possibility of escape. Or worse, used as a bargaining chip in prisoner exchange for hostages. Remember the Kandahar drama? When we caved in, because our politicos were involved, and released a dreaded terrorist?

You be the judge.

It is not an easy decision. Nor should it be decided in the heat of the moment. Passion has no place in law or law-making. It leads to miscarriage of justice, or worse, violence. We talk of ‘bad’ laws; yet, many of us clamour for them when we are confronted with a situation.

A young advocate, of all people, was agitated that Kasab was getting a fair trial. Why not just kill him, he demanded? That was the mood of the moment. Today, in the comity of nations, India can hold its head high. And when it approaches other nations in its quest for justice, it receives help and legal assistance. The final question that readers must now answer is: “Would it be more helpful, or less, if capital punishment needs to remain on the books?” You be the judge.

Please email your comments to bapoomalcolm@gmail.com or mail@moneylife.in.

By: Bapoo M. Malcolm,

Advocate, Bombay High Court, I 7809

Courtesy By: Moneylife