Punish, but can't kill

Death penalty: Gallows for the perpetrators of Delhi gang-rape trigger fierce debate on the sentence
Last Updated 21 September 2013, 16:45 IST

Even as more and more countries abolish death penalty, in India, it seems, only emotional factors decide things. Weird justifications are given in defence of capital punishment, but for the government, there seems to be no time for fresh thinking on the issue. This, despite the Supreme Court time and highlighting the need to revisit jurisprudence behind imposition of death penalty, the last in December, 2012. A report...

The death penalty supplies a catharsis to its proponents like no other. The familiar refrain when a heinous crime is committed is to demand that the nasty, perverted perpetrator be shown the gallows: let him hang by his neck, let his jugular veins close, and let his spines sever. Justice, no less, will be plainly and unmistakably resonant.

This klaxon call for vengeance when crimes as monstrous as the one in the Delhi rape case are committed, may well be a natural reaction. But it ignores the fact that there is perhaps no greater indignation than using the mechanics of law to sentence a person to his or her death and to see it through to its revolting execution. When you strip the issue of all conceptions of punishment, and when you ignore for a moment values such as retribution, deterrence and reformation, you will be left as John Bright argued in 1850 with the simple truth: “If you wish to teach the people to reverence human life, you must first show that you reverence it yourselves.”

In India, capital punishment has been officially in the statute books since 1860 when the Indian Penal Code, drafted by Lord Macaulay, came into force. In comparison to the British laws that many would have described at the time in Macaulay’s words as “sanguinary,” India’s laws, if anything, erred on the other side.

The death penalty was restricted to murder and the highest offences against the State. But while almost every other modern democracy, bar some such as the United States  but including Britain, have abolished the death penalty, India’s laws are veering towards the savage.

The legal arguments for the death penalty’s abolition have been made and rejected by the Supreme Court on multiple occasions. Most notably in 1982, in Bachan Singh vs State of Punjab, a bench of five judges rejected the argument that Section 302 of the IPC, which prescribes death as punishment for murder, violates a person’s fundamental rights under Part III of the Constitution. The law stipulating the death penalty was held to be just, fair and reasonable, and therefore any deprivation of life so resulting was held to be constitutionally permissible. “The Constitution’s makers,” wrote Justice R.S. Sarkaria on behalf of four of the five judges, “were cognizant of the existence of the death penalty, which they were, a priori, comfortable with as a form of punishment that was neither inhumane nor degrading.”

However, these validations, as Justice P.N. Bhagwati pointed out in his dissenting opinion, are fundamentally flawed. By its very nature, wrote Bhagwati, death penalty fulfilled no legitimate end of punishment, and was therefore arbitrary and contrary to Articles 14 and 21 of the Constitution. There is no proof, he said, that death penalty deterred the commission of a crime any more than life imprisonment.  He noted, retribution or denunciation remain the only motivations for the punishment if reformation stands rejected as an objective in case of a death award. But such a justification, said Bhagwati, can have no legitimate place in an “enlightened philosophy of punishment.” To him, just as Albert Camus described in his 1957 essay, “Reflections on the Guillotine,” retaliation was “an emotion, and a particularly violent one, not a principle.”

In addition to being an anathema, the majority’s dictum in Bachan Singh that the death penalty ought to be awarded only in the “rarest of rare cases” is inadequate. It does little to assuage the inherent arbitrariness in the punishment, which is typified by the unguided discretion given to the courts in choosing between death and life imprisonment.

What’s more, the view in Bachan Singh that the Constitution’s drafters were comfortable with the death penalty, and therefore that its validity is unquestionable, also rings hollow.

Ambedkar and his team were dealing in abstract principles; to them equality and liberty were cherished ideals and fundamental human rights. It is, in fact, for this precise reason, why the drafters of India’s Constitution installed Article 13(1), which declares all laws enacted before the Constitution to be void in so far as they are contrary to fundamental rights. The IPC to the extent of its prescription of the death penalty ought be regarded as one such law.

Take away the traditional justifications for punishment, none of which is fulfilled by the death penalty, and we are left with a specious argument about a taxpayer’s liberty. They ask: why we, as a society, should cough up funds to keep the vile and the wicked in prison? Because, we have a responsibility to ourselves, as a society that created the criminal, to work towards his or her reformation, and consequent rehabilitation; this, more than anything else, ought to be the prime objective of the criminal justice system.

And to this end, there can be no questioning that a systemic, widespread change beyond the abolition of the death penalty be required. Among other things, the power of the President and the Governor under Articles 72 and 161 respectively, to grant pardons and remissions of punishments ought to be examined, if necessary, through suitable Constitutional amendments. But such misgivings in the system can be no excuse for retaining the death penalty.

When capital punishment is in force, while the rich and the endowed will be spared by the unique logic of the “bureaucratic machinery of death,” as Christopher Hitchens once wrote, it is only the “hapless indigent,” incapable of finding a “conscientious attorney,” who will suffer the doughty clutches of the hangman’s noose.

(The author is an advocate practicing in the Madras High Court)

Gender-wise distribution of convicts facing death at the end of 2012

    State/UT *        Capital Punishment
        Male    Female    Total
1    UP    106    -    106
2    Karnataka    62    1    63
3    Maharashtra    46    5    51
4    Bihar    42    -    42
5    Delhi    23    4    27
6    Gujarat    19    -    19
TOTAL (All India)    401    13    414

A total of 1,27,789 convicts were reported under various terms of sentences in the country at the end of 2012 and 414 of these were awarded death penalty accounting for 0.3 per cent of the total convicts.

Details of death sentence during 2012

        Number of     Number of     Number of
        prisoners     prisoners    persons
    State/UT*    awarded    whose    executed
         death    sentences
         during 2012    commuted LI**
1    Uttar Pradesh    25    14    -
2    Bihar    12    4    -
3    Delhi    9    3    -
4    Karnataka    8    1    -
5    Madhya Pradesh    7    5    -
6    Maharashtra    4    -    1
TOTAL (All India)    97    61    1
*Union Territory           **Life Imprisonment

Source: Prison Statistics for 2012, National Crime Records Bureau


(Published 21 September 2013, 16:43 IST)

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