Fear of death rarely acts as a deterrent to irrational or well-motivated people. It also rarely prevents crimes of passion or crimes committed in the heat of the moment.
2.If fear of death can be a deterrent, there should be no suicide terrorism. Nor should there be other dastardly crimes. They continue to take place in countries which have death penalty on their statute book. The US is a typical example.
3. In the US, there is not only death penalty. In many States, it is even executed in public thinking that it would add to the deterrence. But it does not.
4. The execution of Timothy McVeigh, who carried out the Oklahoma bombing in 1995, was televised, but it has had no effect on potential criminals. There have been many hate and irrational crimes in the US after his execution, including the recent massacre of innocent worshippers in a US gurudwara.
5. The long-held impression that death penalty is necessary in the rarest of rare cases to deter others from carrying out dastardly crimes has no provable basis.
6. Since last year, I have been arguing against death penalty due to two reasons. First, it doesn’t deter. Second, there is always a danger of a miscarriage of justice due to errors in investigation, prosecution and trial. If the errors come to notice after the execution of the death sentence, no corrective action is possible. I also believe that a State should not kill its citizens for whatever reason.
7. At the same time, one has to make an exception in the case of offences that amount to a war crime or an act of treason. These are crimes committed by someone---either a foreigner or our own national--- at the instance of or on behalf of a foreign State or non-State actor involving deliberate loss of life or national property or critical infrastructure. In such cases the option of a death penalty should be available on the statute book to make it clear that anyone who acts at the instance or on behalf of a foreign State or non-State organisation has to pay a heavy price that may even involve loss of life through execution.
8. Our laws relating to death penalty need to be revisited in order to provide for death penalty only against those acting at the instance or on behalf of a foreign State or non-State organisation. In other cases, life-long imprisonment should be the norm.
9.The execution of Ajmal Kasab, the Pakistani terrorist belonging to the Lashkar-e-Toiba (LET), who participated in the 26/11 terrorist strikes in Mumbai, was totally justified. We need have no regret over it.
10. At the same time, I do feel that even in the case of persons acting at the behest of a foreign State or non-State organisations there should be special exception to carrying out the death penalty for reasons of State to prevent internal disharmony.
11. The case of Afsal Guru, sentenced to death for participating in the attack on the Indian Parliament in December,2001, should come under this category. He should not be executed.
12. It is time to re-formulate our laws relating to death penalty to provide for nuances on the lines mentioned above. ( 23-11-12)
(The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai, and Associate of the Chennai Centre For China Studies. E-mail: email@example.com Twitter @SORBONNE75)