A young lawyer from Delhi, a Kashmiri militant and an Iraqi leader – nothing in common among themselves until very recently but now their fates are linked by the Hangman’s noose and a slender ray of hope. All of them have been convicted of different kinds of crimes and sentenced to the gallows. The circumstances relating to their punishment and their crime is quite different but most people agree with the verdicts decided in all the three cases ;what is not consensual is the sentence which has been given. These sentences have once again brought into focus the debate on capital punishments.
Afzal Guru, the militant, has been sentenced to death for his role in the attack on the Indian Parliament – an attack which not only disturbed the Indo-Pak peace talks (arguably) but also struck at the centre of India’s authority. It is a crime that we all agree deserves to be punished and other than his immediate family and supporters, there are no takers on his innocence (that aspect is of course beyond the scope of this post). Afzal has himself not asked for mercy; it is only the human rights groups have asked for clemency (wrongly reported in parts of the press as seeking pardon).
Santosh Singh, currently a lawyer in Delhi, had been stalking a young girl Priyadarshini Matoo for a long time before he finally raped and killed her. He was acquitted by a Sessions Court Judge saying that though he knows he’s guilty he cannot be punished due to the lack of evidence produced by the police and prosecution. The media uproar and the subsequent public outcry lead to the case being reopened at the higher court where he has now been convicted. He has been awarded “death penalty” for a crime which does not fit into the “rarest of cases”.
Saddam Hussain faced trial for his role in the slaughter of Shiites in 1982 in Dujail, in retaliation for the failed assassination attempt on him. The case was dogged by controversies right from the beginning. Two of Saddam’s lawyers were killed while the first judge quit. He was not given enough time and space to prepare his defence. Ironically, the conviction would have been welcomed had it followed proper legal and moral protocols and been conducted under the auspices of an international tribunal. The timing of the verdict – just before the Senate polls – and the judge’s conspicuous animosity towards the accused has also raised questions on the fairness of the trial.
The vast majority of democratic countries in Europe and Latin America have abolished capital punishment over the last fifty years, but United States, most democracies in Asia, and almost all totalitarian governments retain it. As per Amnesty International's latest figures, a total of 129 countries (including Canada, Mexico, Australia, Russia, South American nations and most European nations) have abolished the death penalty in law or practice. Of these, 88 countries and territories have abolished the death penalty for all crimes, 11 countries have abolished the death penalty for all but exceptional crimes (such as wartime crimes) and 30 countries can be considered abolitionist in practice, i.e., they retain the death penalty in law but have not carried out any executions for the past ten years or more and are believed to have a policy or established practice of not carrying out executions. Though 68 countries retain and use the death penalty, the number of countries which actually execute prisoners in any one-year is much smaller. In 2005, 94 percent of all known executions took place in China, Iran, the USA and Saudi Arabia (US and Iran on the same stage, interesting, right?)
Beyond the statistics, we need to ask ourselves what is the purpose of the death penalty?
--Is it to remove from society someone who would cause more harm?
-- Is it to remove from society someone who is incapable of rehabilitation?
-- Is it to deter others from committing murder?
-- Is it to punish the criminal?
-- Is it to take retribution on behalf of the victim?
Death is not merely a legal undertaking but has a strong social, religious and moral angle to it. It is not just priests or saints who look at birth and death as God’s handiwork; many of us also do so. There is also a strong religious notion that the act of suffering has a purifying effect on the human spirit allowing for salvation in God. The concept of death as a retribution for the sins committed is slowly losing ground. It has been argued that the person must be given an opportunity to repent for his sins and so death cannot be the way out. Is the idea behind a punishment to reform the person or to set an example in the society? Probably both and we need a more humane solution.
Death penalty supporters argue that it is a powerful deterrent to crime but there are no statistics to support this assertion. If death penalty were a proper deterrent, there would have been a reduction in crimes in such places and eventually their number would die out because the crime rate would have fallen to such an extent. On the contrary, these penalties seem to be on a rise in several countries, undermining the very rationale given for it. Death penalty sentences in India have been on the rise lately compared to the almost non-existent cases in the 60s and 70s. These are supposed to be given in the rarest of cases as per the Supreme Court ruling in 1983 but there’s a danger of the judiciary becoming “trigger free” in handing out capital punishments, especially under greater media glare (The Santosh Singh case is a clear example of that). Moreover, terrorist crimes, serial killer crimes or crimes of passion are not dictated by pure logic, so the rationale of using death as a deterrent does not work.
The next argument is one of infallibility of judgment and the irrevocability of the death sentence. The Liebman Report in 2000, concluding a 23-year study conducted by Columbia University, USA, found that 68% of all death sentences awarded were reversed due to serious legal error. In countries like India where the judiciary is over-burdened and cases drag on for years, would it be a surprise if the number of judicial errors is high. If a person is executed because of miscarriage of justice which is subsequently discovered the extinguished life cannot be restored. An innocent life lost due to callousness on the part of the law would be too heavy a price to pay.
Finally, at a slightly more emotional level, just think about the executioner who has to carry out the death penalty. It’s a profession which caries with itself the social stigma of killing someone but there are people who have to carry out this task. Leaders may take decisions but the final blood is in the hands of the executioner who has to act on behalf of the State. I strongly recommend readers to read Shashi Warrier’s soulful book “Hangman’s Journal” in which he brilliantly chronicles the agony that a hangman goes through when he has to carry out an execution. Similarly, Adoor Gopalakrishnan explores this theme in his movie “Nizhalkuthu”. In the words of Adoor, “The Hangman is conventionally considered to be one with no fine feelings. The public does not expect him to behave like a human being, the law wants him to be neutral, the State sees him just as an instrument of its operation.”
Should a civilized society use death as a tool to counter crime? It is arguable and when you consider the plight and sorrow of the victims, it is difficult to advocate the abolition of death penalty. It is an emotional issue but law must take a firm stance on this. In the Indian context, we could look at increasing the tenure of the life imprisonment since 12-14 years may seem on the lower side for extremely heinous crimes. The media must also be careful in its coverage of events. Repeatedly bombarding visuals of the crime and upping the ante for action can lead to public pressures on judiciary to hand out “populist” verdicts.
Is the Right to Life absolute? I certainly think so but then if I were to put myself in the shoes of Priyadarshini Matto’s father, would I feel the same??? Maybe yes or maybe no….