Crime, punishment, justice: The debate after Yakub hanging
Retributive vs restorative justice: Why the death penalty could be punishment but not fairness.analysis Updated: Aug 01, 2015 17:24 IST
A familiar refrain on social media proponents of Yakub Memon's execution have been flinging with might and main at those opposing the death penalty is, "What if your father/wife/daughter/friend was among the victims" of the 1993 Mumbai blasts that claimed 257 lives and maimed hundreds?
My simple answer is I would probably want the convict to die an acutely painful death to sate my understandable-under-the-circumstances thirst for vengeance.
But that is why we have a criminal justice system: to protect the innocent, punish the guilty, secure the human rights of victims as well as accused and ensure justice for all.
While a desire for retribution is allowable in an aggrieved individual, it's not a worthy sentiment for a civilised society and state. Justice is a delicate plant, so a concern for due process, checks and balances, core values and an underlying institutional strength are essential to nurture it.
"The driving spirit" of the Mumbai attacks has left its body; Yakub Memon is dead and buried. But the debate over capital punishment certainly isn't.
State killing condones violence and brutalises society. The trauma and loss suffered by the family of the victim is inflicted in turn upon the family of the person being executed. And the cycle of violence continues.
Many, including legal luminaries and politicians, contend that India needs the death penalty option because these are dark times. The spectre of terror looms large over us and we don't have enough technology or resources to stall the enemy at the gates.
But the threat the world faces today is from groups like Islamic State and al Qaeda with multitudes of brainwashed fidayeens--a bloodthirsty army of the walking dead. A visit to the gallows for these jihadists would be like a gift-wrapped, all-expenses-paid one-way trip to "jannat".
If the intent is to secure reprisal and deterrence then why try to make the execution process humane? The convicts should die the most agonising deaths possible--they should perhaps be decapitated with videos for the world to see and fear us. But wait, isn't that what IS and Boko Haram are doing?
"Why so much concern for the rights of a terrorist/murderer/rapist? What about the victim's rights?" is another customary contention of those supporting retributive punishment like the death penalty.
But victims are merely peripheral to the justice delivery process under the current legal system with the focus on the offender and the endeavour to establish guilt and dispense "punishment that fits the crime".
Make no mistake, this is not some pie-in-the-sky debate meant for a utopian society. A civilisation has earned its stripes only when it can relate to the dignity and value of human life, overcoming the primal lust for vengeance.
Many legal experts argue that restorative justice actually accomplishes retributive purposes, perhaps better than conventional punishment does, while the victim is central to the process of resolving a crime with emphasis on reconciliation, reparation and non-violent conflict resolution.
This table from the US-based non-profit Conflict Solutions Center illustrates the differences between retributive and restorative systems of justice.
The concept of restorative justice is not alien to India, with hundreds of tribunals and ombudsmen outside the formal legal system already walking this path.
No one is calling for an overnight overhaul. But any of us who's come in contact with our justice delivery mechanism knows that while it epitomises a lot that we can be proud of, with colonial-era laws, creaky architecture, inordinate delays and rampant corruption, it is far from perfect.
Steps are being taken to reform the system and we need to make sure these are steps in the right direction.
After all, if the punishment fits the crime, isn't it but another crime in the garb of justice?
(The views expressed are personal. The author tweets as @pathikrit2sen.)