Every time a convict found guilty of capital offense is shown the gallows, the debate over the ethics and legality of capital punishment sparks off generally followed by a well-weighed judiciously worded demand for abolition of death penalty in India.
We are all rational beings and due to this rationality everyone differs radically from one another. What is ‘sensible’ to one, might seem totally ‘nonsensical’ to others. Thus, at the cost of being fundamentally at odd with the widely held views in favour of abolition of death penalty, I would say that I do not see any reason, as far as India is concerned, to ‘formalize’ abolition of capital punishment on various counts.
Firstly, the criminal justice system in our country is based on the cardinal principle of humanity and justice which says – ‘Let hundred criminals go scot-free, but one innocent should not be punished’. Secondly, death penalty in our country is restricted to only ‘rarest of rare’ cases as ruled by the Hon’ble Supreme Court of India in the matter of “Bachan Singh vs State of Punjab” (1980), in line with the previous verdicts in Jagmohan Singh vs. State of Uttar Pradesh (1973), and then in Rajendra Prasad vs. State of Uttar Pradesh (1979). Four executions in the last 16 years (against an average of more than hundred death sentences awarded each year), amply establishes how scrupulously these principles are being followed in India setting aside any doubt about its arbitrary and flawed application; more so when three of these four executions pertain to the cases involving terrorist activities in which hundreds of innocent people had lost their lives.
As regards the arguments that death penalty does not serve any penological purpose or it lacks proven deterrent effect on criminals, I find the opinion of Sir James Fitziames Stephen, the great Jurist, worth mentioning –
“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.”
‘Death penalty denies criminals the chance to reform’ is another argument in favour of the demand for abolition of capital punishment. Here, it may be reiterated that capital punishment in India is restricted to heinous crimes falling under the ‘rarest of rare’ category. Given this, inter alia other factors discussed above, I would say 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. One can well imagine the disastrous outcome of such large-hearted approach which reassures a potential criminal that even if he is found guilty of the offense committed by him; the ‘system’, at the most, would put him behind the bars and try to reform and rehabilitate him.
Agreed, spending few years in prison, let alone the entire life, is in itself a big punishment; but, would an evil mind driven by animal instinct, assured that his life would not be harmed, ever regard ‘imprisonment’ as something to dissuade him from committing the evil deed? We all must have heard people saying during heated moments that – “ज़्यादा से ज़्यादा जेल में चक्की ही तो पीसनी पड़ेगी, कोई फाँसी थोड़ी चढ़ा देगा मुझे” (At the worst, I would have to undergo rigorous imprisonment; nobody would hang me for that). Such statement, howsoever unmindfully delivered, reflects the basic mindset of a person with criminal intentions which does not recognize anything less than a threat to one’s own life, a real deterrent to one’s unlawful desires. The rosy picture of prisons, as portrayed in traditional Indian cinemas, where jail inmates are seen performing various laborious activities merrily to the tune of melodious songs, is also responsible to a certain extent for such nonchalant approach of a potential criminal towards prison-life.
At the start of the discussion, I deliberately used the word ‘formalize’ to suggest that an informal moratorium on execution of death sentences, albeit in a limited way, is already in force in our country, given the fact that more than 99% of the death penalties awarded during the last one and a half decade were commuted to life imprisonment; and, if we separate the three cases involving offenses as serious as ‘waging war against the State’ out of the four cases where executions have been carried out, there left only one case* where a person is judicially executed in India for a crime not related to terrorism.
Further, taking the example of ‘Nithari’ case, where despite upholding the death sentence awarded to Surinder Koli, convicted of one of the most horrific crimes of rape and murder of several women and children (a literally ‘subhuman’ creature who had confessed to have had sex with his dead victims and had also eaten their body parts) by the Hon’ble Supreme Court and subsequent rejection of his mercy petition by the Hon’ble President of India, he was spared the gallows on the ground of inordinate delay caused in deciding his mercy petition, it may well be construed that our ‘system’ is not inclined to execute a convict guilty of even heinous most nature of crimes falling under ‘rarest of rare’ category. Under such circumstances, in my view, nothing seems more pointless than the demand for abolition of capital punishment in India.
* Dhananjoy Chatterjee, who was found guilty of rape and murder of a school girl in 1990 in Bhawanipore, Kolkata and was executed in 2004.