Guest post by YUG MOHIT CHAUDHRY
Under Article 72 of the Constitution of India, the President’s power to grant mercy comes into play only after the judicial system has confirmed the death sentence. Therefore, the confirmation of the death sentence by the highest court is a condition precedent to the grant of mercy. Judicial confirmation of the death sentence does not put the convict beyond the pale or disqualifies him from mercy; in fact it renders him eligible for mercy. Arguments that Kasab deserved no mercy once the Supreme Court confirmed his death sentence are misconceived.
It is only the rarest of rare crimes that shock the collective conscience of society and are truly unpardonable that are given the death sentence. In our constitutional scheme, it is therefore only persons committing such crimes that are eligible for mercy and pardon. If they are to be excluded from the ambit of mercy by the mere fact of having committed truly unpardonable crimes, the President’s power of mercy has no meaning. Paradoxically, the very fact that Kasab had indeed committed an unpardonable crime is what renders him eligible for mercy.
Mercy and pardon are acts of grace. As such they are unrelated to recompense, merits and just deserts. Giving someone what he deserves or is entitled to is not mercy, it is recompense involving no measure of grace. If the powers of pardon and mercy are to be worthy of the name, they must be able to pardon the unpardonable and show mercy to those who are otherwise undeserving of mercy for having behaved mercilessly themselves.
The jusitification for mercy has its roots not in merit, but in need. We don’t deserve mercy, we need it. I think all of us — the best and the worst — are in need of mercy, and it is only by showing mercy that, morally, we ourselves become entitled to receiving it. Bereft of mercy, our society would be impoverished and inhuman, for mercy is quintessentially a human quality, not found elsewhere in the natural world. In classical thought and in many faiths, mercy is the manifestation of divinity within us, showing that we are made in the image of a god who is the ultimate bestower of mercy. As for deserving, give each man his deserts and who shall escape a whipping? Mercy is not dependent on just deserts. Justice and mercy operate in mutually exclusive realms. It is only when justice demands that punishment be inflicted that mercy comes into play. Mercy tempers justice, makes it less exacting, more humane. Excluding a fellow human being from entitlement to mercy has nothing to recommend it except a very base blood lust that we encourage at our peril. If we have to become a more humane and compassionate society, and leave a better, and less blood-thirsty world behind for our children, we have to curb our instinct for retribution.
Executing Kasab in the name of the Indian people will only feed a base instinct for retribution that will make our society more blood-thirsty, vengeful and violent. It will not contribute to our safety or well-being in any way. On the other hand, keeping Kasab in jail for the rest of his life and treating him like a human being allows for the possibility of him regaining his humanity, repenting his crime and atoning for the harm he has caused. That would indeed be a big victory in our battle against terrorism. It would also show our humanity.
See also:
KAFILA - COLLECTIVE EXPLORATIONS SINCE 2006 
Rightly said. This wouldn’t help in reconciling the relations b/w both the countries and achieve peace and prosperity. It would be inspiring for others to follow Kasab’s way and become a martyr. If we are to achieve true peace, we need to rethink our strategy as a nation.
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Nicely written. I wish i could write such an article while bearning a muslim name and not be called a terrorist sympathiser.
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Dear Niaz,
I wish you could but unfortunately you cannot. The country is at rage, the man who was openly violent and racist was given state honour, the people responsible for riots are dreaming to become the PM of the country, the people who break a mosque are proud. This did not ashamed our democracy but killing one man, who was used by some people of evil intentions, certianly makes our democracy proud. We are just a bunch of hooligans who claim to be a democracy!
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People like you give hope to all the people with clear conscience and straight thinking. Huge respect.
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Well said.
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Yug Mohit Chaudhry, Thank you for this piece! Really. Just as when I was thinking why am I feeling uneasy and upset about being inundated early morning on my BBM and WhatsApp with happy messages of Kasab’s hanging, your piece comes as an assurance that I am not alone. I thought of writing something, but my couldn’t gather my thoughts. Imagine, ironically our punning and rejoicing has made a dead ‘terrorist’ trend on Twitter! Strange are the ways of this world. My thoughts go out to the families of those whose loved ones died in 26/11. Kasab’s been hanged! Comeuppance Finally?! But now what! Could this kill the ‘idea’ of terrorism itself? I don’t know really. But certainly I couldn’t rejoice. Instead a strange kind of fear gripped me as I watched TV news, browsed through the messages on hanging and saw it all being played out on Twitter and other social networking sites. All I could think was this: “An eye for an eye would make the whole world blind” – Mahatma Gandhi. I don’t wear the hat of a “buddhijeevi”, so I normally refrain from commenting like this. I definitely share this on my FB and Twitter.
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“If we have to become a more humane and compassionate society, and leave a better, and less blood-thirsty world behind for our children, we have to curb our instinct for retribution.”
The author is really idealistic, and seems to conveniently forget the basis of our existence as a race (human race) today – the struggle for existence, and competition over resources.
People will continue to fight, and as resources become more scarce, populations grow and interests vary, the fights may get uglier, more violent. There’s no use in trying to appeal with the image of a child – every child grows up to witness violence and bloodshed, unless it’s born in a scandinavian country, where it wouldn’t be as frequent.
The man who was hanged today may not have left much of an impact because this was not bloodlust – this is due process. If you seriously want to oppose the death penalty – please do so without having to appeal to undeserved empathy.
As long as terrorists and their ways proliferate, we may have little choice in the peace that we give our children.
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Thank you for this. Many a time, I’ve felt like there are too few sane voices left.
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Though I am not in favour of Capital punishment, hanging of Kasab was good for two reasons:
1) The cost of keeping him in high-security prison is really exorbitant.
2) This forecloses the possibility of some terrorists groups hijacking a plane-load of passengers for his release.
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Numb! Why can’t I feel anything? Maybe I am human no more.
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With utter grief I write this comment. I am a bit indifferent to Kasab and his hanging per se, but what saddens me is the reaction of people. I think after the world cup win this is the first time they are so happy and united. seeing a death being celebrated reminds of the dark ages, when people gathered to see public execution, it was a source of entertainment.
We just took steps back in time and became uncivilized again.
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But this argument must apply to all cases awarded the death penalty. If the President should grant mercy to all then where is the exercise of his discretion? The debate on the death penalty is open but it is on the statute as of now. I think we should first move to a more humane way of execution, till the death penalty is retained. Even sick animals are put to sleep gently.
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It is indeed a relief to read Yug Mohit’s piece and these comments! I have been sickened by the coverage and especially the way that the families of the victims are being made to say that they are happy over what has transpired- the questions are worded to elicit this kind of a response. One can understand their feelings and sympathise with them but the media coverage seems absolutely frightening, including the repeated telecast of Kasab’s body and this on Prime Time television with children watching. The message of revenge being conveyed to young people through the interviews with the families of victims, is disturbing. Looks like the corporate media will milk anything for TRPs as will our political parties, with their eyes on the forthcoming elections. But, will this solve our problems or create more of them?
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The terrorist was ruthless and cold blooded, and would have killed again and again, without remorse or hesitation. So yes, in this case, the execution was justified. Also, it removes at least one threat, that of hijacking to release him.Remember what occurred in Dec 1999.
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it is nice to speak like saints…….but reality is that he killed 150 people
we have to give a message ………….we dont accept this …………….
it is easy to say ……………….. when there is no near and dear in 150 people……..
so you have right to express your views but i have right to say it is……………….
…………………………… ” unfortunate”
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Government spent Rs 29.5 crore on Kasab in 4 years
http://www.rediff.com/news/report/governments-spent-rs-29-5-crores-on-kasab-in-4-years/20121121.htm
Should the govt spend this kind of money till the natural death?
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So… that is probably the reason, I couldn’t figure it out till now. That is why Salman Khan Sanjay Dutt are free.. Because it would cost a lot to keep them in prison. Thank you for enlightening me. :)
It is a sad reflection on this nation, when the bloodthirsty hordes celebrate “justice”. I am not defending Kasab. But when I see the pious faces mouthing such inanities in defence of an Indian laguishing in a Paki jail, accused of terrorist activities, I see clearly how humane we really are and how nice our sense of justice is. Maybe our terrorists are better humans and theirs are simply barbaric fanatics.
I read another piece by Shivam Vij earlier on Rediff and wanted to add that this is something I have felt all the while. But, the tragedy is that even my wife is indignant that I would opt to feel bad about the death of a Paki terrorist. There is no changing mindsets. But it is barbaric for a civilised nation to behave like this.
When people ask me about my opinion on capital punishment if someone near and dear to me was raped or killed, I say to them that I am no one to give a befitting reply. One man lost a Presidential election faced with the same question – Michael Dukakis. What a president he might have been!
However, that does not address the prime question everyone should be asking. If the sentence and execution is just, would you still defend your petition for mercy on behalf of Sarabjit Singh? Would you celebrate just as piously if the Pakistan government executed him tomorrow as a terrorist? After all, to them Sarabjit is also a terrorist and the cause of the death of their citizens..
And this talk of spending money on a person and preferring to hang him to save money is not just insensitive, but completely nonsensical. Maybe some of our high profile prisoners could also be let off with the same excuse. Never mind that we spend so much on utter frivolties and we celebrate the Commonwealth Games as expenditure incurred that will bring pride to our masses. Never mind the crores lost in corruption. But to spend this much on a terrorist??? Heaven forbid!
Was justice done at all? We have managed to put to death an idiot, someone who did not have even an ideological motive. All the people that RAW sent across the border to foment trouble, therefore, should meet the same fate. It would have been an act of infinite grace if we had not done this instead. To show the world that we are better than the rest. Unfortunately, people who say this are now aberrations. “O judgment, thou art fled to brutish beasts; and men have lost their reason”
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>>>That is why Salman Khan Sanjay Dutt are free>>>> do you think these cases are comparable with Kasab’s case?
>>>>>We have managed to put to death an idiot, someone who did not have even an ideological motive>>>> are you sure he was not having any ideological motive?
>>>>All the people that RAW sent across the border to foment trouble, therefore, should meet the same fate>>>>surely if they had carried out heinous crimes like Mumbai 26/11.
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Pushpa, thanks for your reply. Let me answer those queries in brief.
No, those cases are not comparable. Not at all. However, in a country where justice is based on a person’s standing in society or his/her wealth, to speak of justice being done is slightly premature. If you read about Kasab’s trial and how the trial court behaved in a partisan manner, you would understand that a little of what has happened is due to misplaced nationalism and patriotic fervour rather than unbiased prosecution. Would a high profile accused be ever dealt with sternly in this country? I think not.
Secondly, his ideology may be suspect. Most of these people are nothing but brainwashed peasants. If I have to compare it with a local phenomenon, I would say it is similar to the Bajrang Dal or saffron forces using local tribals and lower caste people for violent attacks. I don’t say this because I hear it anywhere, but because I see it in my own fisherman community. These people are not allowed to enter the houses of the leaders and are made to eat on the floor outside whenever there is a function. But when it comes to communal riots, these people are pushed to the forefront as loyal Hindu soldiers. Are they ideologically motivated? Hardly. In the 90s, my engineering college principal set up a clandestine arms training center in Coorg. Ostensibly for training Hindu soldiers for the war against Pakistan and Islam. It was a sad but tragicomic case that some of them were my own cousins. Most of them criminal sheeters, who are still running extortion rackets thanks to their training and access to arms. What ideology, you ask them? They will tell you, nothing. It was just an opportunity. So, I suspect it is something similar with Kasab and those of his ilk. I am sure I might be wrong somehow. But he did appear to be a gullible idiot at times.
Lastly, about all those goofs and patsies sent across by the RAW to foment trouble. I am afraid there have been reams written already about this topic. There are quite a few articles from the last two decades marking the plight of these duped sent across the border with the lure of money, jobs and more. But are forgotten or completely denied if they are caught. I am not sure if the policy works now, but I would not be surprised if it still continued. We do not have a shortage of desperate people or dupes. I would still be hurt if the Pakistan people demanded the death sentence on Sarabjit Singh in retaliation. It is not even justice. Did people die as a result of the activities of Indians sent across? Yes, they did. But we do not like to think we behave like our arch rivals. So, we deny it all. Could it have been done differently? I don’t know. Supporting MQM and other forces within Pakistan was what one would call geopolitics. But we should beware of the future when this might bite us back. Say, the Mujahideen by the US. In a similar way, it might hurt us. Like we had our LTTE or the Khalistan movement.
Anyway, I was just thinking aloud. Not meant as a rebuttal of anything you said. Thanks for your considerate polite reply.
ashed and
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@ Tejaswi, >>>>> If you read about Kasab’s trial and how the trial court behaved in a partisan manner,……………..the whole world has seen on live TV what Kasab & Co had done. Still you have the temerity to accuse the court!!!!!!!! Rest of what you have written also seems to be cooked up stories.
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Thanks for the discussion Tejaswi and Pushpa.
British, while hangiing Bhagath Singh and friends thought that would be an example for others who want to follow, and shall be sending a message. But we know the history, it only added inspiration to more.
Right or wrong, If Kasab had an ideology backing for his actions – in the terrorist tones of heaven and hoors – he would be only happy to be hanged and reach the heaven he wanted to be in. We can only see more people getting inspired by his fate, unfortunately.
According to what i read in news, he was not very happy to die, and that would not be how someone who believes in an ideology would do.
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Yes, that is true. And I felt really bad when I read about his last comments before his hanging. He might not motivate other people apart from those who are like him and who would be told that it is indeed honourable to die so. What honour was there in this death? Or, for that matter, in the killings that preceded it?
Years ago, I used to think that education would be the best solution to counter this sort of fanaticism. Unfortunately, I am proven wrong. Maybe it is our faulty education or some other factor – most of the fanatics I see or meet are educated people. What has education and progress done so far? It has given credence to religious fervour, liberally sprinkled with new-age pseudo-scientific explanations for stupid superstitions; given a new colour to the patriotic sentiments of the people; made us even more clamourous and entitled in a shrinking world (Hilarious, in Britain a cow struck by the Mad cow disease was to be put down by the health authorities and our wonderful NRIs went to court to stop it by all possible means, demanding that their religious identity be not tampered with. Alas, the same with Muslims who demand that songs with holy words be banned, or Salman Rushdie be destroyed – although, there seems to be merit in looking for Rushdie’s scalp after that atrocious book he wrote, but I defend him for his literary skills.) The most fanatic patriots amongst us are those who live in distant countries. Maybe it is the distance that makes their heart grow fonder or the coloured vision of a world they fondly remember with jaundiced eyes. (And when they come here, even for a short visit, they go back cursing how nothing changes in this godforsaken country!!)
No, education alone will not save us. It has not, so far. But I do see something else happening in the world and I am hoping it comes to the Indian shores as well. If the blasted Americans could choose to keep the right wingers away and reject their principles in the recent elections, why do the Indian people who admire them so much not opt for the same? I think it will happen by and by. Most of these hate-mongers will perish. Or, is it wishful thinking?
Anyways, thanks for your comments too. Nice to see people engaging in this sort of conversation with fear or being interrupted by trolls.
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yes..and then terrorist organizations would not be at any loss…if they succeed they will take innocent lives and if they not…they can at least live a happy life (in prison)…an added incentive though at the cost of our own money.
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This is a curious piece. If the argument was that is wrong to use the death penalty for any crime and should therefore be removed from the statute book, I could understand and respect that position. To the best of my understanding, this is not what is being argued. Rather, the argument is that we should have mercy and commute the death sentence because “we all need mercy.”
This doesn’t make any sense to me. If all criminals who have been awarded the death sentence should be shown mercy, why have the provision at all? Secondly, why is the death penalty alone deserving of mercy? How about those awarded life imprisonment, like say, Dr. Maya Kodnani, convicted for her role in the Naroda Patiya riots? Should she be shown mercy and have her sentence reduced? Why not? At what point do we stop being merciful?
I’d argue, that in the Indian context, what we need is not mercy but justice. That means that those who commit crimes are tried and given the appropriate punishment. This is exactly what does not happen in India. The problem is thus not that we hang Kasab, it is that we don’t apply the same standards to others who can only be described as terrorists. All those implicated in “riots”, all those who kill in the name of “terrorists”, “encounters” and so on and so forth. The recently dead Mumbai based “gentleman”?
Let me note that I have deep reservations about the death penalty myself. Not only because it offends my conscience but also because its deterrence value is unclear and there are clear instances of error. We can, to some extent, compensate a person for wrongful imprisonment but there is no such possibility if we kill him. For all these reasons, I would like it removed from the statute books. But talk of mercy to someone like Kasab is grotesque because he has shown no remorse for what he did. You show mercy to someone who regrets what he did and is genuinely sorry. Is there any statement of Kasab expressing sorrow for his crime?
Finally I note, if any evidence were needed, the utter bankruptcy of the Hindutva advocates. At this point, our thoughts ought to be with all those who suffered during those terrible hours in Mumbai. All those who suffered the loss of a loved one. The police constable and others who gave their lives and but for whom, the toll of the dead would be even more. Is this what animates the poster boy of Hindutva, Narendra Modi? From his tweet:
What about Afzal Guru, who attacked Parliament, our temple of democracy, in 2001? That offence predates Kasab’s heinous act by many years.
Right, more hangings. That’s what we need.
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i’m sorry i can’t agree with this view neither with the people celebrating in the streets over someone’s death. i like to see it as a ‘rule of law’ and that is not about compassion rather about justice, justice for the victims. if we keep Kasab in jail for rest of his life, what about those families of victims who believed in court of law of this nation. Then about showing mercy, i don’t remember any news in these 4 years about kasab showing regret over his action and apologized to those widows and families who lost their dear ones.
India never sent him to guatenamo, not aired youtube videos of hangging him, not kept his body in a cold storage. i agree india acted not like an angel but we acted like human beings.
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I did right, no regrets, Kasab had said
http://www.rediff.com/news/slide-show/slide-show-1-kasab-the-man-who-vowed-to-kill-to-the-last-breath/20121121.htm
I am just wondering whether such a person deserves mercy.
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Respect you for this wonderful article…but when it comes to taking sides,i think it is justifiable dat kasab was hanged..for the simple reason that this should be a lesson to all those who in the name of jihad takes innoccent lives from india…true that he was brainwashed,true that the real culprits roam freely,something had to be done.
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kasab probably did what was right for him to do. he followed what he believed in. killing is killing. i dont understand this sanctimonious attitude of human-beings. we kill for food. we rape. we murder. we burn women. we vandalise…everything that is considered ‘civil’ humans have gone right ahead and mutilated it. do all the perpetrators of these acts get death penalty? mercy is definitely the highest virtue. but i dont think that in a country riddled with hatred towards our ‘friendly’ neighbours and all the media-hype, awarding ‘mercy’ to kasab was possible.
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Many intellectuals would change their voice, color and everything they possess in their so called more evolved brains, had their kith and kin been victim of the bloodbath Kasab did in Mumbai. Don’t try to justify Kasb’s work by citing a monster from Mumbai.
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