SOLI LOQUIES: Death penalty


October 24, 2005

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Soli Sorabjee in the Indian Express

Death penalty

October 23, 2005

Debate about the abolition of the death penalty is unending. It has been abolished in practically every European country and in the UK, except in a couple of cases. In India, the death penalty is on the statute book and has survived three constitutional challenges in the Supreme Court. However, imposition of death penalty is restricted to ”the rarest of rare cases” which inevitably injects an element of subjectivity in judicial decisions.

Contemporary juristic thinking is against the death penalty. The main arguments are the fallibility of human judgment, evidenced by reversal of judgments by appellate courts, and irrevocability of the death sentence. If a person is executed because of miscarriage of justice which is subsequently discovered the extinguished life cannot be restored. These objections are well founded.

However, take a case where a militant has mercilessly decimated young children praying in a temple or has blown up a hospital nursing ill and aged civilians. The militant unequivocally acknowledges his heartless crime and indeed takes pride in it. Besides he defiantly declares that he will in future continue to carry out such brutal crimes because according to his perverted mind it is his religious duty to do so. In this hypothetical case, we have a self-confessed murderer who on his own showing is a threat to our society against which he has declared war. Should such a person be spared the death penalty or be exterminated as a threat to society?

The argument that life is God given and no State has a right to deprive another person of his life is not compelling, because, driven to its logical conclusion, that would mean that when the nation is fighting a war thrust upon it, there is no right to kill enemy soldiers who are attacking and killing our soldiers and civilians. Enemy soldiers and personnel are killed in a war not by way of reprisals but in order to protect the nation and its people. A terrorist who has declared war on our nation is in essence no different from enemy soldiers whose duty and mission are to maim and kill us.

A counter argument is that human nature is capable of reformation. Instances are not unknown where sinners have become saints. Therefore, any system that discards the relevance of reformation of the person mired by criminality is irrational and unethical. Thus the debate goes on. Abolitionists may well ponder over this conundrum to which there is no decisive answer except that when in doubt tilt in favour of life rather than its extinction.

Variety of Parsi contribution

Contribution of the miniscule Parsi community to the nation has been aptly recognised by Gandhiji’s famous remark, ”contemptuous in numbers, magnificent in contribution”. Parsis have made invaluable contribution to law and jurisprudence and the names of Jamshedji Kanga, Homi Seervai and Nani Palkhivala stand out amongst others.

Among contemporary Parsis there is Zubin Mehta, the internationally renowned and brilliant conductor. In the field of military service, apart from Air Marshal Aspi Engineer, Admiral Jal Cursetji and other distinguished officers, the nonagenarian, Field Marshal Sam Maneckshaw, who led India to victory in the 1971 war, is outstanding. In addition to his military brilliance, his popularity with the rank and file is legendary. Indeed a song, Sambahadur, has been composed and dedicated to him by his regiment.

There is one more addition to the distinguished Parsi ranks. Brigadier Naozer Patel, an officer of the Madras Sappers regiment, has recently bagged a medal in the Third World Beard and Moustache Competition held in Berlin. One would have thought that beard and moustache were rightly the domain of our Rajput and Sardar armed forces who sport them splendidly. Trust a Parsi to venture into other fields. I wonder if the Parsi Panchayat has thought of appropriately honouring Brigadier Naozer Patel, hopefully without reference to his views about the proper method of disposal of the dead and about permitting Non-Zoroastrians into the fold.