What is justice? Has justice been done to Yakub Memon and his victims?
John Rawls in his classic work A Theory of Justice defined justice as fairness in the distribution of life chances. For most ordinary people justice means something else. It implies compensation or retribution for an injury, an injustice. When Osama bin Laden was finally found and killed, families of the victims of 9/11 thought justice had been done.
Justice can be distributive as in Rawls or commutative as in ordinary parlance. But of course there is a question which spans the two. Can commutative justice be fair? Is it just on behalf of the victim to seek retribution or is it unfair to seek an eye for an eye, a life for a life? If you hang a person for committing a murder, is that fair? What if he has killed ten or a hundred, how do you compensate a hundred lives by taking one life? Is taking a life for a life fair, just?
We have been through a bad and fractured debate about this question during the past week. India has a death penalty in the ‘rarest of rare’ cases. The judiciary has been extremely careful in pronouncing the death sentence. Even so, the system adds a caveat. There is a version of the Royal Pardon in the Indian Republic. The convicted person is allowed the route of a mercy petition.
The president (or even the governor of a state) is allowed to grant a pardon; he can trounce the judiciary, legally. This anomaly is a hangover from the British days. Britain has abolished death penalty so it does not need a Royal Pardon on its books. India lingers with this anomaly.
The mercy petition takes the issue in the realm of politics since the president can only act on the advice of the Cabinet. Thus indirectly the majority party or coalition of parties in power is above the law in terms of the appropriateness of the death penalty even in the ‘rarest of rare’ cases. The mercy petition thus allows delay and dithering. It introduces low politics and vote seeking in granting or occasionally withholding the petition. Add to that the farcical hypocrisy about minority claims and you have all the elements of a Feydeau farce with an outcome of a Greek tragedy. The judiciary tries its scrupulous best to entertain repeated appeals and exhausts the avenues of escape as well exhausting itself. It also risks being made a plaything of low politics, bringing its reputation in question.
This is because as the democracy is based on trading in vote banks , every separate vote bank based on religion, language, region, jati or clan can be an endangered minority. A Muslim facing the death penalty will find champions arguing his innocence as will a Sikh. But then the Tamil Nadu Assembly wants to pardon the conspirators in the Rajiv Gandhi assassination case as they are all Tamil-speaking. And so will a Dalit or tribal or a Jat or a transgender. Administering the death penalty to anyone belonging to an identifiable minority, in fact, any and every citizen, is then unfair.
India has politicised the death penalty by throwing the decision of the judiciary into the party political cauldron. The time has come to remove the mercy petition from the books. After that the nation needs a new debate on the criterion of ‘rarest of rare’. I suspect that there is still a majority preference for retributive death penalty. This is despite the fact that elite opinion is already arguing for its abolition. But following such elite opinion, although I subscribe to it, is not a good idea. The need is for a nationwide debate and a referendum, coinciding with the next general election on the issue. That alone will yield a definitive answer.
There will no doubt continue a debate about justice to Yakub Memon as there has been about Afzal Guru and the Batla House encounter. It will be said that a Muslim cannot expect justice in India.
But think of the other Muslim whose death we mourn this week. A P J Abdul Kalam showed what India offers a poor Muslim boy. Is that also not justice?