In the first part of my note on the subject, I had discussed the pointlessness of the demand for the abolition of death penalty in India mainly on two counts – first, the criminal justice system of our country is based on the cardinal principles of humanity and justice, which follows the dictum of law – ‘Let hundred criminals go scot free, but one innocent should not be punished’. Secondly, in our country, death penalty is restricted to ‘rarest of rare’ cases only as ruled by the Hon’ble Apex Court. And how scrupulously these principles are being followed in India is evident from the fact that only four convicts were executed in the last 15 years (as against an average of more than hundred death sentences awarded each year), that too while three of these four executions pertain to the cases involving terrorist activities where hundreds of innocent lives were lost; and where the Government had to send a message to the world that it would not tolerate any act of ‘waging war against the nation’. I deliberately used the words – “(no need to) ‘formalize’ (the abolition)” to suggest that an informal moratorium on execution of death sentences, albeit in a limited way, is already in force in our country and, thus, the demand seems nothing but pointless.
Apart from the above, I had also discussed two chief arguments in favour of abolition of death penalty. With regard to the question whether death penalty has any deterrent effect, without even feeling the need to go into the question of ‘yes’ or ‘no’, I had simply quoted Sir James Fitziames Stephen, the great Jurist, as – “No other punishment deters man so effectually from committing crimes as the punishment of death. … In any secondary punishment, however terrible, there is hope, but death is death, its terrors cannot be described more forcibly.”
Further, with regard to the argument that death penalty denies criminals the chance to reform, I had observed that it would be a grave injustice to the victims, their families and the civil society as a whole, if our criminal justice system, instead of punishing the perpetrators, who evidently showed no regard for the life and dignity of their victims, puts all its efforts and energy to ‘reform’ them. I agreed that spending a few years in prison, let alone the entire life, is in itself a big punishment; but, the fear of imprisonment utterly lacks the requisite degree of ‘deterrent effect’ which may dissuade a criminal (who is sure that his life would not be harmed) from committing a heinous crime.
Finally, citing the example of Nithari serial rape and murder case, I observed that every hour of delay being caused in the matter is strongly suggesting that Nirbhaya matter too is heading towards the same fate as that of Nithari case and the convicts in the present case too would ultimately manage to escape the gallows.
Going a bit too far may be I had even suggested that there are some elements in the system, which actually sympathizes with such loathsome creatures. Not quite believable – but not completely unfounded too considering the apparent willful delay caused in dealing with Koli’s mercy petition granting him the sole vital ground in his defence – the ‘inordinate delay’, which ultimately led to commutation of his death sentence into life imprisonment. But why did it happen?
Pondering over the question leads me to the sole conclusion that there is a subtle sense of ‘unwillingness’ on the part of the entire system which dissuade it from taking life of a human being (however inhuman he may be) and does its best to avert the situation. When I say ‘unwillingness’ I mean to say ‘unwillingness to take the blame (in the eyes of the God)’ in respect of the ‘killing’ (however lawful and justifiable). The reason behind this unwillingness is something which does not go well with the principle of ahimsa which pervades the basic precepts of Dharma in India.
To make my point clear, I would like to give a small example here. It’s about my father. He used to tell us that even while he liked chicken very much, he was most reluctant to buy one. Why? Because the chicken sellers invariably ask the customers to select the raw-stock they want, and by doing so, he made the customer directly blamed for the killing of the chicken. Here, we can see that both the seller and the customer are unwilling to take the blame for the ‘killing’, even if they are not doing anything unlawful.
The number of death sentences awarded by the trial courts each year would perhaps have been on much lower side, had these courts of law been the final authority in the matter. Taking the argument a bit further, I would say that even the First Citizen of India, in case given the absolute power to decide on a mercy petition, he or she would, in most probability, being a normal person (i.e., a person not with a criminal mindset or the one who is duty-bound to resort to violent means to subdue violence), choose either to pardon the death-convict or to sit on the mercy petition throughout his/her tenure to evade the situation.
I may sound a bit absurd, but honestly this is what I could gather when I go in search for a plausible reason behind commutation of death penalties in some of the most heinous capital cases.
The subtle ‘unwillingness’ I discussed in the above paras results into delay caused at various levels (thanks to the delaying tactics one could judicially resort to) which ultimately leads to non-implementation of death penalties awarded in most of the cases, rendering the victim’s family and the civil society as a whole in great anguish and hopelessness over the half-justice done. Not a good sign for the ‘system’ as it shakes people’s trust in justice and the rule of law. The soon the things are set right the better.