Is death penalty a terror deterrent?

The criticism that, on merits, justice has not been done to Yakub Memon is absurd. But the question one needs to ponder over is whether the execution of a particular death sentence awarded to a terrorist would be counterproductive

August 22, 2015 01:48 am | Updated April 01, 2016 04:23 pm IST

"Every Indian should be proud of the manner in which this case has been dealt with by the judiciary."

"Every Indian should be proud of the manner in which this case has been dealt with by the judiciary."

The city of Mumbai was the target of unprecedented terrorist attacks on March 12, 1993. Twelve bomb explosions, in a span of about two hours, shook the city and left 257 people dead and 713 seriously injured. After investigations, a prolonged legal process and the judgment after nearly 20 years, Yakub Memon was named a prime accused and awarded the death sentence. He >was executed on July 30, 2015 . Our judiciary and the Supreme Court in particular must be applauded for the manner in which the trials and appeals were conducted in the case.

Fair trial and due process On March 21, 2013, a bench comprising Justices P. Sathasivam and B.S. Chauhan >disposed of the death sentence cases and the criminal appeals of the accused after one of the longest hearings which resulted in a massive judgment of 2,995 paragraphs and 1,004 pages of the Law Reports. The judgment not only examined the guilt of over 100 accused who were convicted, but also individually discussed the sentences. A Terrorist and Disruptive Activities (Prevention) Act (TADA) court had awarded the death sentence to 10 other persons but the Supreme Court confirmed the death sentence of Yakub alone; it was commuted to life imprisonment for the rest. On July 30, 2013, the same bench rejected the review petitions after denying oral hearings.

Later, the Supreme Court decided in Mohammed Arif’s case ((2014) 9 SCC 737) that limited oral argument be permitted in review applications in death sentence cases. Consequently, on April 9, 2015, a Supreme Court bench comprising Justices Anil R. Dave, J. Chelameswar and Kurian Joseph heard oral arguments in a review petition filed by Yakub after going through the judgment under review as well as the judgment of the trial court. The review was dismissed.

A curative petition was then filed and on July 21, 2015, a Supreme Court bench comprising Chief Justice H.L. Dattu, and Justices T.S. Thakur and Anil R. Dave >rejected the petition , holding that there was no ground made out.

Another writ petition was filed by Yakub (Writ Petition, (Crl.) No.129 of 2015). There was a >difference of opinion between two judges on the question of whether the curative petition had been decided in accordance with the law and as per the requirement of Supreme Court Rules. Following this, the Chief Justice of India immediately constituted a bench of Justices Dipak Misra, Prafulla C. Pant and Amitava Roy which dismissed the writ petition on July 29, 2015 and held that there was no flaw in the decision on the curative petition and that the issue of death warrant was in order. Another writ petition (W.P. (Crl.) No.135 of 2015) >was filed and heard on the night of July 29/the morning of July 30, 2015 by the same bench, which dismissed it and observed that a further stay of the execution of the death warrant would be nothing but a travesty of justice.

Yakub’s conviction and death sentence was examined by eight judges in the Supreme Court from time to time before his execution on the morning of July 30, 2015. Not only was due process fully ensured but also undue lengthening of due process was accommodated by the highest court, by granting a midnight hearing. Justice according to the law has not only been done but was seen to be done. The criticism that, on merits, justice has not been done to Yakub Memon is absurd.

Every Indian should be proud of the manner in which this case has been dealt with by the judiciary.

Is the death penalty justified? Under the Indian Penal Code (IPC), there are several offences which may attract a death penalty or life imprisonment. These include murder — Section 302; waging war (including attempt and abetment) — Section 121, and mutiny — Section 132. Under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) (now repealed but in force in 1993) and under the Prevention of Terrorism Act, 2002 (POTA) (now repealed), the death sentence could be awarded for terrorist acts.

Bomb explosions and the loss of lives as a result of terrorist attacks are completely different in nature, objective and motivation from a common murder. In this case, the objective is not to target someone in particular but to destabilise society and to encourage the disintegration of the sovereignty and security of a nation. Such terrorist attacks are often state-sponsored — and are an act of undeclared war.

For many years India has faced, and still faces, the most severe threats on account of terrorism. India was regarded as a “sponge” until the world took notice of the evolving nature and threat posed by terrorism after the terror attack on the World Trade Center on September 11, 2001.

Awarding someone the death penalty for acts of terrorism is qualitatively different from awarding someone the death penalty for having committed other crimes.

A criticism levelled by some against the death sentence having been awarded to Yakub reiterates the familiar argument that the death penalty as such should be abolished as it is a violation of human rights and is an inhuman and cruel form of punishment.

In the seminal case of Bachan Singh , the majority judgment upheld the constitutional validity of death penalty for murder under Section 302 of the IPC.

In his vigorous dissent, Justice P.N. Bhagwati, while declaring unconstitutional and void Section 302 (IPC) read with Section 354 (3) (Cr.P.C) as being violative of Articles 14 and 21, made the following observation: “I may make it clear that the question to which I am addressing myself is only in regard to the proportionality of death sentence to the offence of murder and nothing that I say here may be taken as an expression of opinion on the question whether a sentence of death can be said to be proportionate to the offence of treason or any other offence involving the security of the State” — ((1982) 3 SCC 24 at 76) .

These words, from the strongest votary against the death penalty, are revealing. Justice Bhagwati clearly indicated that his observations do not apply to punishment of death in relation to terrorist acts or to treason — implicitly endorsing the death penalty for terrorist acts.

While abolition of the death penalty for crimes other than terrorist acts or treason may be justified, its retention in the case of punishment for having carried out terrorist acts or treason seems equally justifiable.

How effective? The death penalty may be well deserved and a judge has to make a decision according to the law. The power to commute the death sentence ought to be exercised by the Executive selectively.

After Yakub’s execution in Nagpur, his body was flown to Mumbai the same day. Large crowds thronged his residence, the mosque at Mahim and at his burial at Marine Lines.

There is increasing support for the view that the death penalty for terrorists may not only be ineffective but also be counterproductive. Why? Terrorists, when awarded the death penalty, become martyrs influencing many other misguided youngsters to espouse a similar cause. Many religious fanatics believe in reward in the “after life” and endless pleasures in heaven. Not awarding them the death penalty would mean depriving them of the “anticipated rewards in heaven”. Again, imprisonment and incarceration of a terrorist may result in yields — obtaining information relating to other terrorist organisations.

Here, it is worth citing Jessica E. Stern, an expert on counterterrorism and a lecturer at Harvard University, who also served on the National Security Council (1994-95) in the United States. In an article published in The New York Times on February 28, 2001, titled “Execute terrorists at our own risk”, she had said this:

“As a nation, we have decided that terrorism that results in loss of life should face the possibility of the death penalty. But is this wise?

“…. One can argue about the effectiveness of the death penalty generally. But when it comes to terrorism, national security concerns should be paramount. The execution of terrorists, especially minor operatives, has effects that go beyond retribution or justice. The executions play right into the hands of our adversaries. We turn criminals into martyrs, invite retaliatory strikes and enhance the public relations and fund-raising strategies of our enemies…

“… For instance, the United Kingdom in 1973 debated whether to repeal the death penalty in Northern Ireland. By a margin of nearly three to one, the House of Commons decided that executing terrorists, whose goal is often to martyr themselves, only increased violence and put soldiers and police at greater risk. In a highly charged political situation, it was argued, the threat of death does not deter terrorism. On the contrary, executing terrorists, the House of Commons decided, has the opposite effect: It increases the incidence of terrorism.”

Alan Dershowitz, the American lawyer and a life-long opponent of capital punishment, wrote in The Guardian on April 24, 2013 about the death penalty. In an article titled “Dzhokhar Tsarnaev should not face the death penalty, even for a capital crime”, and which was about the surviving Boston marathon bomber, he wrote:

“…There is an argument, however, that could have an impact even on proponents of the death penalty.

“Seeking the death penalty against Tsarnaev, and imposing it if he were to be convicted, would turn him into a martyr. His face would appear on recruiting posters for suicide bombers. The countdown toward his execution might well incite other acts of terrorism. Those seeking paradise through martyrdom would see him as a role model.”

The question one needs to ponder over is whether the execution of a particular death sentence awarded to a terrorist would be counterproductive.

(Anil Divan is a senior advocate. E-mail: )

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