Lone death row convict in the 1993 Mumbai serial blastscase Yakub Memon moved the Supreme Court on Thursday, challenging the validity of the death warrant issued against him by a TADA court for execution on July 30, a move that has reignited the debate about whether the state has the right take the life of any one, no matter what the provocation and whether capital punishment is truly a deterrent of any sort.
It is a knotty issue. In Europe the death penalty is abolished in all countries except Belarus for peace time crimes and in all countries except Kazakhstan and Belarus for war time crimes. The maximum penalty is life imprisonment in practically all of Europe, and yet Europe remains a relatively crime free zone.
Now look at the United States. 31 of the 50 states permit death penalty, in the exercise of which 35 were executed last year while 3002 inmates remained on death row. And yet according to the office of the United Nations Office of Drugs and Crime which tracks crime statistics, the United States had a murder and homicide rate of 16.1, much higher than Europe.
In Asia, according to the Amnesty International report for 2014-15, titled The State of the World's Human Rights, showed the death penalty has been maintained, and even re-emerged, in law and practice across the Asia-Pacific. In 2014, China continued its extensive, and often undocumented, use of the death penalty and executions were carried out in Japan and Vietnam, including for economic offences.
India had no executions though the law remains on the books and the most recent executions including the matter of Yakub Menon looming on the horizon have been executions where the crime has had political overtones.
Is the death penalty an effective deterrent for preventing violent crimes as claimed by those would like to keep it on the books? A 2009 survey of criminologists revealed that over 88 per cent believed the death penalty was not a deterrent to murder. The murder rate in non-death penalty states has remained consistently lower than the rate in States with the death penalty.
While the country is beset with terrorism and insurgency, it will not be politically expedient to remove the death penalty from the statute books and any movement in that direction is unlikely in the country.
However some debate is required to specifically define "the rarest of rare" instances when the death penalty is to be awarded as per the directions of the Supreme Court as "rarest of the rare" is a term as subjective as it can get and because it is so ill defined, appeals and mercy petitions galore delay the whole process as each person involved in the appeals and mercy hearing process has to subjectively apply their mind to answer the question as to whether a particular incident can be classified as rarest of the rare.
That day is still too far away, when we will go Europe's way and completely abolish the death penalty, but the least the government and courts can do is to bring more clarity and sharpness on what is currently an essentially very subjective and therefore politically driven mechanism and minimise its misuse.