Human Rights and Capital Punishment: Time to join civilisation
While human rights defenders have long campaigned for the abolition of the death penalty in India, it is President Abdul Kalam who has brought it to the centre stage with his request to the government to review all pending cases due to the capital punishment being so obviously applied with a bias against the economically and socially weaker sections: meaning the poor and the ‘lower’ castes.
India is one of 78 countries including the US, China, Iran and Vietnam which have not banned the death penalty. 86 countries and territories have abolished the death penalty for all crimes, and a total of 121 countries have abolished the death penalty in law or practice. Over 40 countries have abolished the death penalty for all crimes since 1990.
10 December 2005, the international Human Rights Day, is observed as Anti-Capital Punishment Day in India. There are several arguments against the capital punishment. Some are systemic, some procedural and some are ideological. Mahatma Gandhi provides the best logic: what is not permissible for an individual [in this case to kill] is not permissible for a group.
Criminal justice has to discharge three functions: deter, reform and punish. Capital punishment does not give the criminal any chance for reform. Punishment has two components: one to restore as close as possible, status quo ante, and to fulfil the need for revenge of the victim [often disguised as ‘justice’]. While other crimes can restore status quo ante, in this one, the victim who was murdered cannot be brought back to life by ‘punishing’ the criminal by capital punishment. So it is not ‘restitution’ in any sense of the term, but only codified revenge, and a futile one at that. Most civilised societies accept that this form of ‘justice’ is only thinly veiled revenge. Of the three, deterrence is the aspect most hotly debated. But studies prove that capital punishment is not really a deterrent. Except for a slight surge—if at all—for a short while after abolition, countries that have abolished death penalty actually have less crime than otherwise. In the case of ‘hardcore’ criminals, the certainty of capital punishment makes them even more reckless with the twisted logic of no redemption: anyway I will be killed, so I might as well be killed for a hundred murders rather than one.
On the flip side, there are many reasons why there should not be a death penalty. The first and foremost is that when mistakes are made—and they are made very often—there is no way in which it can be reversed. Death is final. USA has executed about 1000 people in the last 30 years. 115 have been released because they were found innocent—after being found ‘guilty beyond reasonable doubt’ several times over by courts from the local to the state level, and the review boards recommending no pardon! Advances in technology—such as DNA testing—found that these men could not have committed the crimes they were convicted of. Crime syndicates routinely bribe or blackmail innocents into confessions, and then coach them on the details of the crime so that their confession is ‘authentic’. Political parties do the same in India and elsewhere.
In India, the death penalty is handed out only in the ‘rarest of rare’ cases. Even so, it has several flaws. For one, it is unevenly applied on the weaker sections. The ‘urge to punish’ is always a reflection on social bias. The ‘untidy’ ‘uncouth’ and ‘unkempt’ child—often dark—is more likely to be punished, and more severely, than a neat ‘fair’ one. The same applies for all punishments—right up to capital punishment. If you are poor and ‘low’ caste, you are more likely to be hanged than if you kill and stuff the body into an oven and belong to a national political party.
The second flaw is that the law itself gives capital punishments only to the ‘lower class crimes’. Causing death, even fully knowing the consequences, by ‘white collar crimes’ such as adulteration of food or medicine does not attract the death penalty. Causing death by denying basic needs is not even considered a social crime, but rather an economic virtue and is promoted as ‘structural reform’ by governments.
The third flaw is that the ‘rarest of the rare’ is still an evolving concept. Many religions prescribe the death penalty for apostates. In India the ‘rarest of the rare’ was a Dalit learning how to read and write. Now it is conspiracy to murder. An important part of jurisprudence is that the criminal always gets the benefit of the progress of understanding. Capital punishment negates this concept.
There are proposals to extend capital punishment to many more crimes. That is an escapist attitude that seeks magic bullets without engaging with the process that leads to increased violence or question its structural origins. Does that ‘rarest of the rare’ actually work to deter, reform or punish in the case of suicide bombers, who actually welcome death with open arms? Extending capital punishment to cover more and more sundry crimes is not the answer.
What we require is a social consciousness where murder, for whatever reason, is outlawed. If killing is justified for ‘the rarest of the rare’ then citizens will claim the right and freedom to judge what is ‘rarest of rare’ in their opinion, and then claim the logical right to follow through on their judgement—meaning execute. It is only when the normative value base of society shifts to making all killing unlawful, and all violence abhorrent, that the ‘rarest of the rare’ will disappear. The right to life is sacred at all times for all people. Most people want to know the ‘alternative’. There is already an alternative in law that fulfils all the three conditions of deter, reform and punish: life imprisonment.
The modern jurisprudence for capital punishment originates from Europe—which has given it up. It thrives mainly in the US, which has more people in their jails than on their farms. India has a rich history of rehabilitating criminals, of whom Valmiki is but one. We would not have a Ramayana if Valmiki lived in modern India. He would’ve been declared a ‘terrorist’ or a naxalite, given no chance for reform and executed. We need to build on such traditions of enlightened tolerance, rather than following the regressive practices of others. It is high time that India joins the civilised world in outlawing capital punishment.