Sentencing terrorists
The trial of Yasin Malik reminds me of one aspect of punishment that is not usually discussed. The symbolism of punishment is as important as punishment itself.
Sentencing is the final element of the criminal justice system. In common language, the system comprises investigations, charge-sheeting the accused, proving the crime and the guilt of the perpetrator and finally sentencing.
Of these, sentencing criminals has always been tricky. Many state the goals of sentencing to include satisfying the society’s need for retribution, restoration, deterrence and others. The prescribed punishment do not achieve the desired effect of society. The British used to hang pickpockets publicly to create deterrence. However, those hanging spectacles, were prime events for pickpockets to ply their trade.
Sentencing for crime has been subject of debate
Indian system of Dharmashastra has not been used as the knowledge base around it needs to be recreated. The system was quite complex. Here is example of sentencing by Yudhistira:
Vidur was given the task of assessing the two princes. Besides his wide knowledge of the scriptures, he was wise and just. He put a simple question to the two princes: “A murder is committed. What punishment should the murderer get if he is (a) a Shudra (b) a Vaishya (c) a Kshatriya or (d) a Brahmin?”
Duryodhan was quick and confident to answer: “The punishment should be the same, whatever the murderer’s caste or standing.”
Good enough! Have we all not been brought up to believe that everyone is equal before law and that the law is blind?
But let us listen to Yudhishtir first. “If a low caste commits a murder, he has to be punished according to whatever is prescribed for such a crime. But a Vaishya guilty of the same crime should get double of that punishment, for he is an educated person who should be aware of the consequences of his crime as well as the difference between right and wrong.
“A Kshatriya should get four times of that punishment. Is he not the one who is duty bound to protect people? Instead of protecting them, he has used his skills to kill one of them.
“And a Brahmin — the most learned — one should be given the severe most punishment; double to that of Kshatriya. His duty is to guide people, to show them the difference between right and wrong. If he himself commits such a heinous crime, what effect it will have on society? What will it all lead to?”
Modern law derives from Christian traditions. As per the system, the sentencing system was based on religious prescription - both for Christianity and Islam. Most of the punishments have been hard-coded into their holy books.
Islamic jurisprudence is more hard-coded and unyielding. You either follow it or don’t. Therefore there is not much scope for innovation. Most of experimentation on punishment came from Europeans.
European cruelty
Europeans lost their barbaric inclinations only recently, after World War II. During the colonial periods, the Spanish and Portuguese were one of the most barbaric of rulers. Their definition of crime was far wider, and the punishment more vulgar than any.
During the Spanish and Portuguese inquisitions, they routinely cut off breasts of women, cut off hands of people, dragged people behind the horse, stoned women and children to death, used women as sex slaves, burnt people alive, burnt children in front of their parents and used barbaric torture techniques generally.
The British, too, put a lot of thought in this part of law. And more so as their colonial empire spread across the world. They deployed sophisticated techniques of tax-driven looting, usurping property and wealth using contracts and loan defaults etc.
However, the British were not far behind in cruel techniques. The Brits sent their worst of lot to Australia as indentured labour in service of empire. They often stranded errant seamen on lonely islands (a plot used in the Pirates of the Caribbean). They cut hands for thievery and legs for eloping with white girls. In rare cases they would cut left hand and right leg for some irritating freedom fighters. The socially outcast thugs, they simply hanged outside the villages. Whipping and kicking etc. were for common offences. For the most radical of freedom fighters they created Mandalay and Andaman. These prisons were meant to break the spirit of the person as well as the body. Tilak’s experience in Mandalay and Savarkar’s in Andaman are heart wrenching.
Modern Era
After World War II, there evolved a humane code of treatment of prisoners. Prisons became correction facilities. Modern political prisoners became exiled not tortured. Some remained in house arrest like Aung San Suu Kyi. Some countries do continue the traditions like Saudis, Iran, Russia, China and some others.
The treatment of prisoners has become a question because of a new breed of criminals - the terrorists. Americans have experimented with black sites without oversight, Guantanamo-type options, etc. The way Saddam Hussein was treated by US was unbecoming of a global power. There are lot of questionable moral, ethical and legal dilemmas. But I was positively surprised by the way Osama was dealt with. After assassination of Osama, US, ostensibly dumped his body at sea.
I think we must adopt American approach
India has been dealing with terrorists in a haphazard manner. We have three very public cases - Ajmal Kasab(2012), Afzal Guru(2013) and Burhan Wani(2016). Of these Kasab and Guru were buried in jail premises. Wani got a procession which created more terrorist if you ask me. This was reverse of deterrence.
If terrorists are caught or they surrender, they should go through criminal justice system. Once the court confirms death sentence for them, they should be treated in the American way. All terrorists (even those killed in encounters) should be cremated (they do not deserve any piece of this land) and their ashes should be thrown away. I hope Indian government creates special process for disposing off these bad actors.
As I write this…
Yasin Malik has been given life sentence. Pertinent to note this is for the terror financing part of the crime. The rest is yet to go through criminal justice system. I hope we evolve our criminal justice system to deal with this new threat.