All said and done, there is a case for retaining the death sentence in the rarest of rare cases, provided the phrase 'rarest of rare' is defined clearly and transparently. What is worrisome about capital punishment is its occasional arbitrariness.

The hanging of Yakub Memon gives us a good reason to start the debate over the death penalty. I would like to make out a case in favour of retaining the death penalty.

The main arguments trotted out in favour of the abolition of capital punishment are these. First, we should not be party to taking precious human life. Second, sentencing someone to death when facts may later prove him or her innocent means irreparable injustice will be done. Third, death is never a deterrent. And, a fourth, that retribution should never be the aim of capital punishment. It is primitive and barbaric to seek death even for the worst crimes.

Let me agree that none of these arguments are invalid in toto. But they are not as strong as they appear to be at first glance.

Let’s take the first argument. Every human life is precious, no doubt. The right to life is the most fundamental of rights. No state should be allowed to take it away easily.

But no fundamental right is without riders either. Free speech, property and faith, all these are rights subject to reasonable restrictions. Sure, the right to life is even more fundamental, but this only means that the right to take it away has to be foolproof and not amenable to subjective readings.

When someone is a terrorist, killing people at will, or a serial murderer or rapist, is this person’s right to life all that sacrosanct all the time?

Also, we need to evaluate the death sentence compared to the alternative: a life sentence. Is living life in a dingy cell somehow more humane than sending the killer to the hangman? When suicide bombers voluntarily kill themselves for psychic gains, why is the right to life somehow so sacrosanct? They want to die anyway – and they don’t believe in other people’s right to live.

Let me add two more elements to this argument. Why is only human life so valuable, and not that of animals or other fauna? Why is it so unethical to hang a human being, but perfectly all right to murder animals by the million when this causes global warming, makes our diets excessively fatty and cholesterol-laden, and also leads to needless suffering to creatures whom we dominate?

Moreover, what if keeping a person alive can cause even more deaths? Keeping Maqbool Butt alive led Kashmiri separatists to the kidnap and murder of an Indian diplomat in Birmingham in the early 1980s. Boko Haram, Al-Qaeda, Indian Mujahideen, Al Shabaab, and ISIS will do anything to get the release of their jailed comrades. Keeping Maulana Masood Azhar and Sheikh Omar in jail caused the Kandahar Indian Airlines hijack and may even have contributed to the 9/11 mass murders at the Twin Towers. When keeping deadly killers alive in jail can tempt their compatriots to indulge in more killings, how is this justified?

When it comes to demented people who kill or rape for pleasure and revenge, and when they do so out of mental sickness, is it better to keep them rotting in jail or end their suffering and potential threats to society – including other jailbirds?

Sometimes, the greater good is more important than the life of one individual. Hence the death penalty is not something we should reject out of sheer emotion.

Let’s take the next argument – that sending someone to the gallows when he may be innocent is the worst form of injustice. This is a reasonably good argument, but we need to examine it closely for its implications.

There are two kinds of states – malevolent ones, that are run by dictatorships and hence outside the rule of law, and democratic ones, which do give the accused a chance to prove their innocence. In the first case, there is no point arguing against the death sentence since that kind of regime is against any argument that is not in favour of it.

In democratic regimes, where the rule of law is reasonably expected to operate, the accused have a chance to prove their innocence. Let’s remember, Yakub Memon got 21 years to prove his innocence, and failed. However, the real issue here is whether he (and others on death row) got reasonable support from the law so that they don’t end up on the gallows for want of an adequate defence. In big cases, the courts themselves provide legal support; the real problem lies with the poor and weak in criminal cases that do not catch the public eye. It is a travesty that the bulk of the people languishing on death row are from these segments of society. This problem needs remedying by strengthening the law - a law which provides state legal support for the poor. Maybe, a group of concerned citizens can serve as watchdog to ensure that this gets done.

That still leaves the question of the non-guilty facing a death rap because of poor evidence gathering by the criminal investigation teams.

This is a valid argument, but not an overpowering one. Reason: the fact that mistakes will be made occasionally should not be used to kill the idea of death penalty in the rarest of rare cases. Once we create a basic list of crimes that fits this “rarest of rare” category, the rules for applying the death sentence can be tightened suitably so that convictions based on weak evidence should automatically attract nothing more than lifers. This is a reasonable safeguard to have – and it can be codified into law.

The third argument, that capital punishment is never a deterrent, is actually the weakest of them all. If death is no deterrence, is a jail term (even a lifer) a better deterrent? Ask yourself: if you intend to kill, not out of some degree of temporary insanity or driven by extreme emotion, nothing is a deterrent. If you kill after plotting assiduously for it, you are prepared for any consequences. So death or jail will be no deterrent anyway. I believe that punishment itself does not deter too many crimes involving the killing of people, but it is still needed to send out a message to society. Punishment is how we educate ourselves on what is acceptable or unacceptable to a society. This is the prime purpose of any punishment, death or jail, regardless of whether it deters or not.

The last argument, that death penalty cannot become a form of retribution, I personally disagree with. States punish crimes with punishment, including death, so that people don’t take law into their own hands and seek retribution directly. Punishment by the state is vital to keep ordinary citizens from taking the law into their own hands – some form of retribution is vital for closure, for righting wrongs. Of course, an occasional Gandhi or a Buddha may not want retribution, but most societies are held in place by the promise of retribution for wrongs inflicted, and not by the forgiving nature of the wronged. Retribution is a human emotion that needs to be acknowledged – just as love, anger and hate are – and punishment is vital if society is not to sink into wanton lawlessness.

These are some of the reasons why I think the death sentence should be retained. But it cannot be wayward and arbitrary. We need a specific set of crimes which are defined as rarest of rare and not leave it to the imagination of all-to-human judges to decide this. This is what the debate on capital punishment needs to focus on, not whether it should be abolished.

It may be possible to abolish death penalties in extremely advanced countries where people are normally law abiding and the state is strong enough and has enough resources to even attempt to correct the behaviour patterns of deadly criminals. But India is not anywhere near that stage. We need the death penalty for our own reasons at this stage in our development as a civilised society. Let’s not fool ourselves into thinking that we must do what the Joneses do to their killers in Scandinavia or Europe. That way lies chaos and disaster.