There are days in the annals of a nation when the whole nation is jubilant, as, for instance, when its sovereignty is wrested back from the clutches of an alien power. There are also days when large populations across countries have gloated over someone’s death, as in the cases of Saddam Hussein, Osama Bin Laden and, more recently, the Libyan rebel, Muammar Gaddafi. Twenty-first November 2012 was such a day when it seemed India celebrated its second Diwali of the year: there were bursting of crackers, sharing of sweets, thumping of chests and a sense of elation and relief in many an Indian’s heart. It was a day when India woke up, not with a newspaper but a TV remote in its hands. The occasion: A terse message in everyone’s SMS inboxes: ‘Ajmal Kasab was hanged to death in Pune at 7.30 am.’
The tone of the Press Conference by the Home Minister Shri Sushil Kumar Shinde to confirm the execution was one of personal triumph. Shri RR Patil, Home Minister of Maharashtra during his sombre press announcement referred to it as a “fitting tribute” to the 166 who lost their lives on 26/11. In the harangue that followed, there was talk, inter alia, of ‘justice’ being done and ‘the right message’ being sent!
This brings us to the oft-debated question of Capital Punishment, which is defined as the lawful infliction of death as a punishment. What did Ajmal Kasab’s death actually achieve? Rather, what does capital punishment seek to establish or achieve? Retribution? Deterrence? The rule of law? There are umpteen extremely effective mechanisms for it. Justice? Tit for Tat? Quid Pro quo? Does capital punishment redound to moral edification? Or betterment of humanity? Isn’t there a better method of punishing the guilty, however heinous their crime, than taking away their lives?
Justice? Deterrence?
All of us pray for a just society, a society where justice is given utmost priority. However, when it comes to ourselves, it pinches us and we have a lop-sided view of justice. In a just society everyone has an equal right to life, liberty and the pursuit of happiness. By deliberately denying life and opportunity to others, it is argued, the perpetrators forfeit their own claim to life. Hence, they should be restrained forever so as not to give them a chance for further endangerment. It is often claim that capital punishment acts as deterrence. But, has death penalty ever stopped a crime? Several studies conducted on the deterrence factor have proved that fear of capital punishment hasn’t decreased crime rate. On the contrary, in some cases it has witnessed escalation after the introduction of capital punishment! For capital punishment to be a true deterrent, everybody must realise that we will certainly be put to death if we commit certain crimes and that there will be no reprieve.
But what about the difference in the degree of criminality, the gravity of the crime? One may have killed another in a heat of passion, while another may have committed a premeditated murder. Almost like the ‘motiveless malignity’ of Shakespeare’s Iago. Should their penalty be equivalent? Isn’t Capital punishment too an instance of pre-meditated, socially approved murder?
Extenuating circumstances
There are cases where persons who commit such crimes have often been subjected to violence, emotional trauma, neglect, lack of love and a host of destructive social conditions. These extenuating circumstances have damaged their humanity so much that they cannot be held completely culpable. Most terrorists are brainwashed into becoming ‘human bombs’. These ‘human bombs’ feel that they are performing a good deed by indulging in the terroristic deed. In such cases, it is their trainers and instigators who are more culpable than these gullible puppets. Thus indiscriminate inflicting of death punishment becomes a miscarriage of justice. Remember, two wrongs don’t make a right.
Anti-Human Rights
The very acceptance of capital punishment as a viable instrument for punishing the guilty is a moral disgrace to the society. It is also against the principle of Human Rights. The UN General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) on 15 December 1989, which says that the abolition of death penalty “contributes to the enhancement of human dignity and progressive development of human rights.”* The Statutes for the International Criminal Tribunal and International Criminal Court established by the Security Council do not provide for capital punishment, even though they were set up to try individuals for crimes against humanity and genocide. According to Amnesty International, more than two-thirds of the countries in the world (140) have now abolished the death penalty in law or practice.** Even a country like Rwanda that has witnessed the ultimate crime of genocide recently decided to forego the death penalty. What about the more spiritualistic India?
‘Rarest of rare cases’
In India capital punishment is given only to the ‘rarest of rare cases’, but what constitutes the ‘rarest of rare cases’? Definition of ‘rarest of rare cases’ is left to the judges; so it becomes a judge-centric discretion! When the state has no power to create life, how can it be vested with the power to destroy life? If the principle of ‘life for life’ is followed, capital punishment becomes a sort of compulsory euthanasia so that the individual isn’t exposed to more murderous opportunities. Can such euthanasia be justified, even as a means of deterrence or retribution?
Not punishment but elimination
There was a time when capital punishment was the norm, and exceptions were made, depending upon mitigating circumstances. But now in some countries like India capital punishment is not the norm but it is given only in exceptional cases. This might seem to be an improvement over the earlier stance, but the irony is that while in the former case, the awarding authority would consider mitigating circumstances and override the penalty, now that does not happen because, here, the crime is given more weightage than the criminal. Hence, there is little chance of revoking the death penalty. Moreover, a court can determine the gravity of the crime, but awarding capital punishment to the criminal, does not tantamount to ‘punishment’, inasmuch as in capital punishment, the individual is not punished but eliminated! Keeping the person alive will be punishment while killing him will be elimination!
Alternatives to capital punishment
What, then, is the alternative to capital punishment? One viable alternative is life sentence, that is, incarceration until death without any opportunity for parole. For, such a sentence removes the convict from the community against which he/she had committed the crime. The advocates of exemplary chastisement will be glad to know that life without parole is crueller than death, for it is a living death, though gradually. The BBC reported in 2007 that hundreds of prisoners, unable to bear their vegetative existence, petitioned the Italian government to convert their life sentences to execution.***
Moreover, life imprisonment proffers the convict an opportunity for remorse. There is a famous case of Karla Faye Tucker who had been convicted of brutally killing two people with a pickaxe during a 1983 robbery. Despite evidence that Karla Faye Tucker had been high on drugs at the time of the crime and that she had been addicted to drugs since she was eight years old, the jury put her on death row. During her 14-year wait for execution, she underwent conversion and a change of heart in gaol, so much so that leaders from across the world, including Pope John Paul II, made personal appeals for the commutation of her death sentence to life in prison.++ Death penalty removes from the individual any chance of such remorse, conversion and rehabilitation.
Abrogation of death penalty has other good effects as well. I may sound naïve if I say that it gives employment to prison guards. More seriously, it creates a culture in which human life is so highly valued that not even the state is permitted to kill people. Today, newspapers are rife with cases of juvenile delinquency. If capital punishment becomes the norm, soon we will have many young boys and girls who are executed without giving them an opportunity to reform themselves.
Discipline from Bottoms up
The fact that our prisons are full and congested is a testimony to our failure in our endeavour to create an upright society devoid of poverty, moral decay and social disharmony. The Law Commission, in its 36th report (1967) stated that India could not risk the experiment of abolition of capital punishment because of the low level of morality and education and vastness of area and population, and the need for maintaining law and order in the country.+++ Hence we need to pull up our socks and get down to work to eradicate these ills, which form the foundation and dubious pillars of a crime-ridden society.
We need to instil stricter discipline in children at schools and on the streets, and young offenders and older ones progressively. This way, we can try to bring up a generation of disciplined people who may not need the threat of execution to deter them from committing the most grievous crimes. It is incumbent upon us to provide citizens with equal opportunities to achieve a good life in a loving culture. This will be the most potent antidote to those who clamour for capital punishment.
The Father of our Nation, Mahatma Gandhi, had hit the nail on the head when he said: An eye for an eye only ends up making the whole world blind. Period. Who would aspire to live in a world populated by the blind, where the blind lead the blind to perdition? In view of the above, however lofty be the end or objective of capital punishment, it will never justify the means.
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* http://www2.ohchr.org/english/law/ccpr-death.htm
** http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries
*** http://news.bbc.co.uk/2/hi/europe/6707865.stm
+ + The jury rejected amnesty to Faye Tucker and she was executed by lethal injection on February 3, 1998. She received the lethal injection with composure and equipoise. She was the first woman executed in the State of Texas in 135 years.
+++ As quoted by Justice Hosbet Suresh in his book “All Human Rights are Fundamental Rights” Second Edition (Universal Law Publishing Co. Pvt. Ltd., New Delhi 2010) p. 84
