Live chat: The debate around death penalty

July 29, 2015 11:04 am | Updated 08:02 pm IST

With the death penalty in sharp focus on Wednesday over the case of Yakub Memon and the convicts in the Rajiv Gandhi case, The Hindu hosted an online debate about capital punishment.

The key participant was Alok Prasanna Kumar from Vidhi Legal Policy in New Delhi. Amit Baruah, The Hindu ’s Resident Editor moderated the discussion. Also participating were Rukmini Shrinivasan, The Hindu ’s National Data Editor and Krishnadas Rajagopal, The Hindu ’s legal correspondent.

Amit Baruah: Hi Alok: what is the significance of the Supreme Court's order today?

Alok Prasanna Kumar: Today's Supreme Court order I think firmly shuts the door on Yakub Memon for any further legal challenge to the death warrant.

Rukmini: If Yakub Memon hangs tomorrow, it will be India's 6th hanging in the last 20 years

Amit Baruah: Will it have any impact on the issue of the death penalty and its application in India, per se, Alok?

Rukmini: Krishnadas, it would seem that the three-judge bench did not agree with Justice Kurien Joseph's objections to the curative petition bench's composition? by Rukmini S 5:40 PM ↑0

Krishnadas Rajagopal: Rukmini the three--judge bench led by Justice Dipak Misra has answered J. Kurian Joseph's query. It said as per the Supreme Court Rules three seniormost judges are bounden by law to hear the curative, involving other judges is a "prerogative" of the CJI as the Master of the Roster

I have not yet seen the full text of the order of the Court, but going from the reports from the Court, I don't think this particular order will have too much impact in future cases. by alok.prasanna 5:40 PM ↑0

Usually the curative petition is the last stage for litigation in death penalty cases and it is very very rare for the court to hear any case beyond that stage also. by alok.prasanna 5:41 PM ↑0

Amit Baruah: Do you think that the interests of justice have been served in Yakub Memon's case, Alok?

Alok Prasanna Kumar:

That's a bit difficult to say categorically!

Alok Prasanna Kumar:

But let me say this: I think Yakub Memon's case deserved a much fuller hearing on the point of commutation of death sentence after information came to light about his arrest

Amit Baruah: Is that because there are doubts about the circumstances in which he was arrested, Alok?


Would you say that the full range of judicial options for those on death row were in some ways on display in this case?

Amit Baruah:

And, the issue of the extent of culpability in the horrible March 1993 blasts case?

Alok Prasanna Kumar:

Exactly. Now that wouldn't change his conviction for the offence, it wouldn't mean that he'd be "let off" but the court should have taken the circumstance into account

Alok Prasanna Kumar:

I think the extent of his culpability was gone into in fair detail by the Supreme Court. It's possible that a different judge may have taken a different view. But it was considered

Amit Baruah:

So, what is the signal the Supreme Court verdict today sends out to the rest of society and the world, Alok?

Alok Prasanna Kumar:

The signal, is not a very good one. It seems to me that the Supreme Court just wanted to "wash its hands off" Yakub Memon

Alok Prasanna Kumar:

Whereas Justice Kurian Joseph was very concerned in ensuring that every last procedural process was followed in such a serious case, I'm waiting to see what reasons the 3 judge bench have adopted to disagree with him.

Soumendra Mohanty

If there are any doubts about the circumstances during arrest, shouldn't the officials be prosecuted for deliberate hiding of information or misleading the investigation?

Sudarsan Rauta

I think death penalty does not serve any practical purpose in preventing crimes.other than a mere spectacle

Krishnadas, what were the points on which the SC refused to quash the death warrant today? by Rukmini S 5:44 PM ↑0

Krishnadas Rajagopal: One, under the Afzal Guru decision of the Supreme Court recently, Memon was given "sufficient notice" of his death warrant. The decision said a minimum of 14 days, Memon was given 17 as his death warrant was served on him on July 13, 2015. Two, he has exhausted all his legal remedies including the curative and had the full run. Three, the court accepted the AG stand that Memon went on to exhaust all his legal remedies by filing the curative petition even after the death warrant was iss

Amit Baruah: Was the entire bench of one opinion today, Krishnadas?

Krishnadas Rajagopal: yes.

@Alok, Is there any limit to the number of mercy pleas one can make? and Isn't it inappropriate that a mercy plea is considered by the Governor after the rejection by the President of India? by Soumendra Mohanty 5:48 PM ↑0

Alok Prasanna Kumar:

There's no fixed limit as far as I can tell. In the present instance, the technical ground taken is that the earlier mercy plea was made to the President by Yakub's brother and this one made by him directly.

Soumendra Mohanty

In that case, there can be unlimited mercy pleas to the President by the relatives. Wouldn't it hinder the execution of the punishment for a long time if not forever?

Alok Prasanna Kumar:

Merely making a mercy petition won't stop the process. If once a mercy petition has been heard and rejected, the death warrant can be executed.

Soumendra Mohanty

Thank You, In that case, I suppose, even the President doesn't reject it by today, the death penalty will be executed. Is there any chance, that President can delay the process keeping it 'under consideration.' ?

The judges were divided over death penalty decision yesterday. What will our judiciary achieve by sending Yakub Memon to the gallows? Even civil society activists were arrested for protesting against the judgement. What direction will the case take next? by Vishal Manve

Alok Prasanna Kumar:

1. I don't think we should see it as a "judiciary is doing the State's bidding" on this. Judges have applied their minds, and for better or worse, decided in this way. Impossible to fathom a "purpose".

It is because the judges were divided that the case was referred to a different Bench.

Amit Baruah:

At the end of the day, the decision of the Supreme Court is final whatever be the doubts that have been expressed. But, all of us have the right to critique or agree with the verdict

Alok Prasanna Kumar:

2. What direction this case will take? The only last option I can see is if Yakub's lawyers approach the Bombay High Court against the rejection of the mercy petition.

what went against Yakub? by Indian 5:53 PM ↑0

Soumendra Mohanty

The only thing that went against is his involvement in the blast.

Rukmini: Krishnadas, have there been cases in the past where the process of issuing the death warrant has had an impact on carrying out of a death sentence?

Krishnadas Rajagopal: The Shabnam and Saleem case. The Supreme Court dismissed their appeal against death penalty and the local court issued death warrant in six days. SC stayed the warrant. This case was the main ground for Yakub too, but unsuccessfully

Singled out. Doesn't serve the purpose it is meant to serve. by Maruti 800

Is Public Perception of Justice influencing Supreme Court's decisions? Had the verdict gone the other way, what would have been the potential social and political fall outs? by Ashish

Amit Baruah:

Not much. Judicial pronouncements are quite final.


The Courts are expected to give their judgments on the basis of law and established facts.

Taking a life is wrong and that is why yakub is considered a criminal. now if we kill him, doesn't that make us criminal too? by Royston


One of the arguments against the death penalty is essentially this, that the state should not take a life in response to the taking of a life. But public opinion remains divided - in 2013 40% were against it, and 30% for it.

Soumendra Mohanty

In that case, imprisoning also criminal. I think there is some thing called justice and it has to be in proportion to the crime committed and not seen separately.

Soumendra Mohanty

Public Perceptions are highly influenced by the media and political parties. Law should take its own course.

Death penalty is brutal... more so in India, our culture of pluralism is lost with such acts by Indian 5:55 PM ↑0

Amit Baruah:

There's need for more debate, more reasoned debate on the issue.

Given that aim of Justice should be a balance of Retribution, Reformation and Deterrence aren't we focusing too much on Retribution, as the deterrence angle is already doubtful and Reformation is not even on the horizon? by Ashish

Amit Baruah:

I think the goals as you define them are admirable.

Alok Prasanna Kumar:

That's a very good point and you're right, we need to completely re-think our existing criminal law and what the purpose of our criminal law is supposed to be. It should not just be about the death penalty and should attempt at making our criminal justice system, as a whole, more humane

Alok Prasanna Kumar:

Let's not forget that much of our criminal justice system was put in place to control a subject population. Lots of changes have been made, but fundamental ones relating to police and jails still pending

Amit Baruah:

Are you saying we still have a colonial approach on policing and jails, Alok?

Equality before law is served but what about that judges have differences isn't it that, particularly in this case ,judges should have taken the same decision subject to the national interest. by Pratik 5:59 PM ↑0

it is sad that it took 2 decades +. there should be a time limit. u cannot keep a man locked up for so long and then decide for capital punishment. by vineet 5:59 PM ↑0

Amit Baruah: Indeed, there should be a time limit. Inevitably, the issue of comparison between other cases and people on death row will be made.

Alok Prasanna Kumar:

It's difficult to draw a general principle on the basis of one case. Suppose if Yakub Menon was someone who could've influence the course of the trial? And ensured he was not convicted by threatening witness?

Alok Prasanna Kumar:

Of course, *once* he's convicted, he shouldn't then be forced to serve a life sentence and then sentenced to death. That is the law an the Supreme Court recently affirmed it.

were the mitigating circumstances considered which were earlier purported to have been overlooked/not brought to the notice of supreme court? by avinash 5:59 PM ↑0

Alok Prasanna Kumar:

From my understanding of the hearings as they proceeded, I do not think they were. However, we may get more clarity upon seeing the full text of the order pronounced in court

Where is the necessity for showing mercy on a terrorist convict when every avenue for his pardon has been closed. Moreover India is the country worst affected by terrorism and there is no point in comparing with other countries where death penalty has been abolished. Will the votaries for abolition of death penalty just think about the victims of terrorism? by Ganesan V

Amit Baruah:

I think that's a point of view -- the danger from terror to India is real, but am not quite sure whether India is the worst-affected by terrorism. Other countries may be worse off. But the larger issue is this -- the issues of extremism have to be tackled by law and order means as well as through political strategies.

would the commutation of death sentence have led to strengthning of the already deteriorating perception of the plural fabric of the country? by avinash

Amit Baruah:

That's a good question, but really it's a real "IF" question now.

Death warrants are common for even lesser heinous crimes than this, like the blast that took life of 8-9 (single digit) persons in the USA in the marathon, and crippled many for the lifetime. Than, why in case of India only, always high stand on morality is taken? Why is it debated so enthusiastically among intellectuals, by taking higher moral ground? by Kaushal

Amit Baruah:

It's because a person's life is at stake.


The US undoubtedly has far more stringent sentencing norms - including for children in some states, or for drug crimes - and many would argue that it is one of the worst examples to emulate. India has a long history of democratic debate and is not alone among countries which debate core human rights issues including the death penalty.

Alok Prasanna Kumar:

Let's not forget that trials in our country are hugely loaded against the poor and underprivileged sections of society. Most of the time they don't even get proper representation in court. Are we sure we're not simply sentencing innocents to death on a flawed process?

and can the supreme court take suo moto cognisance in expediting the other cases of such kind??for eg-babri masjid case ?? and was the fact that he surrendered or co operated and exhorted other family members of to come back a mitigating circumstance?? by avinash

Krishnadas Rajagopal: The fact that Memon came back and co-operated with investigation was never presented as a mitigating factor till now in the Supreme Court.

Alok Prasanna Kumar:

Expediting is not a good idea in cases of trials. It only leads to more miscarriage of justice as repeated research has shown.

Though his participation in mumbai blast is incorrigible, but he was the only one to come forward to give all datas against ISI, which helped us determine the nature- dont know but probably he needs to be sentenced for life rather than hanging?

by Deblina Majumder via Facebook

Amit Baruah:

Yes, Deblina -- it was never an issue of his going "free" -- just a choice between the death penalty and spending the rest of his life in prison. That was the issue at stake and remains at stake for the next few hours.

This is not quite the Indian way to balance justice. What is the hurry anyway? Why can't SC stay the execution for a little longer. The country waited for two long decades and a little would do no harm to anybody. by Peddi 6:07 PM ↑0

It is unfortunate that Yakub Memon may hang now. I do not believe it is right to impose the death penalty on him considering the mitigating evidence that is now available. Having said that, isn't the SC aware of this? I am sure the learned judges read the the former RAW officer's letter. Did they explain why that the letter's content doesn't merit a bearing on the case? by hari_247

Alok Prasanna Kumar:

They may have read it, but in such cases, unless the Government is also given an opportunity to respond to the letter in court, they can't pass orders just on that basis. Especially since it would mean setting aside their own earlier orders.

Krishnadas Rajagopal:

The article by Mr. Raman was mentioned repeatedly in court today by senior advocate TR Andhyarujina, but the court restricted itself to the petition filed by Memon questioning the issuance of death warrant.


PILs have been taken up on news reports. How is this any different?

Why doesn't India abolish death penalty? by Indian 6:07 PM ↑0

Ganesan V

Because it is the country worst affected by terrorism.

In this modern age, no law can act as a deterrent. An offender has to be punished. Death penalty can not be an exception. When someone can plan and kill innocent lives, he deserves it. by Balaje

I think many of Indians will lose a little faith on the judiciary system after this harsh punishment.@asadowaisi by shafeeq ahmed via twitter

what does plural fabric had to do with punishing a guilty for taking part in killing over 250 people while injuring over 700? Should we just suspend laws of the land and pardon all Muslim convicts just so that India can come across as 'plural' society! This is height of ridiculousness and political correctness run-amok! by Suvojit 6:10 PM ↑0

Amit Baruah:

I think the interests of justice are better served by seeing convicts as offenders rather than attaching religious labels to them.

The death penalty should stay as a means to punish a person whose heinous crime cannot be refuted. Is a life term any better than a hanging? Has that proved a deterrent to crime? by hari_247

Alok Prasanna Kumar:

We should move away from the whole notion of "deterrence" being the prime object of criminal law. By that standard no punishment, not even the death penalty, is a "deterrent" to any crime.


I agree - deterrence is a poor argument against all sentences, essentially. But I see some value in the idea that the certainty of punishment is something of a deterrent, and not necessarily its severity.

isnt it a greater question to address and a responsiblity of the supreme court to look into the cause of crimes as these ..which are apparently a result of the "original sins"/illiteracy/marginalisation etc....and an aspect of the human nature to react in an unreasonable way(bomb blasts) if such sins have been afflicted upon them ?? by avinash

Alok Prasanna Kumar:

Part of deciding whether the death penalty should be imposed involves the judges going into the question of "mitigating circumstances". They do look at the convict's background, behaviour, et al for this purpose.


Judges are also supposed to examine the convict's possibility of reformation, something that very few judges pay any attention to.

It's worth noting that in general, trial courts hand out death sentences at a far greater rate than confirmations by the Supreme Court - fewer than 5% of all death sentences handed down in the last 15 years were confirmed by the SC by Rukmini S

Alok Prasanna Kumar:

It's something to do with how our judicial hierarchy is structured. From anecdotal evidence, I get the sense that superior judges are suspicious of lower court judges who are lenient.


So every single judgment should be suspect?

Giving death sentence for heinous crimes in a democratic country is loosing relevance in day to day life though there a instances public asking for capital punishment this is because of aggressive emotions of public at that time. what are your view regarding this. @ alok

Alok Prasanna Kumar:

It's unfortunate that Public Prosecutors think they're demagogues of the Government in Court. They do discredit to the profession and to themselves by asking for death penalty on such bases.

Krishnadas Rajagopal: Death penalty as of now is not unconstitutional, though we are a signatory to international covenants against death penalty. In today's hearing, AG called Memon a traitor in open court and blamed him for the deaths of 257 people in the blasts. So, now the focus is on retribution and not deterrence


It's quite terrifying, really, how quickly people ask for someone to be hanged. You see it every day on social media as well, in response to something as petty as a traffic policeman allegedly asking for a bribe.

The reasoning that death sentence is barbaric and unacceptable stems from the fact that the country's judicial system has a very long time frame in deciding cases and awarding judgements. The long delay involved brings in the angle of humanitarian consideration cause the person has to live in the fear of death. A speedy case disposal mechanism can counter these allegations to an extent. by Jay88 6:32 PM ↑0

Alok Prasanna Kumar: A speedy trial does not make a barbaric punishment any less barbaric.

It only increases chances of more injustice

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