Two recent events have revived the debate over the efficacy and ethics of death penalty. First, in India, the hanging of Afzal Guru in February this year provoked widespread protests both in his home state Kashmir and among human rights groups – Indian as well as international. Next, in the same month, in Bangladesh, thousands of people came out in the streets of Dhaka, demanding the hanging of those convicted of massacring men, women and children during the civil war in 1971 in the then East Pakistan. These two opposite demonstrations of public opinion – one against death sentence and the other in favour – problematize the issue of capital punishment from two perspectives: one, popular demand for retributive justice through the present penal system by the execution of perpetrators of heinous crimes, and two, humanitarian impulses that seek to change that system in favour of a less-violent form of punishment. The proposed one-day seminar on ` capital punishment: state and society’ intends to bring together representatives from the judiciary, academic community and human rights movement among others, to discuss the intricacies of the debate on the issue.
The seminar is expected to help both the Indian state and our society to seriously introspect on a subject which had been controversial for a long time – creating ambivalence among certain sections and provoking sharp divisions between others.
A brief historical recapitulation of the debate can provide us with a useful background for the proposed seminar. From the past, states had always reserved the right to execute alleged criminals (either through hanging, or more painful methods like burying them alive, or impaling them through spikes). Later, new methods of execution evolved – electric chair and lethal injection – which were fast and spared the victims the tortuous process of dying. The development of these new methods was a concession to the growing demand by liberal humanist reformers for less-painful forms of capital punishment. But irrespective of the methods of execution, whether painfully long or peacefully quick, the basic issue of capital punishment as a justifiable form of penalty remained a point of dispute. Over the years, under pressures from a growing abolitionist movement (demanding an end to capital punishment), several nations changed their penal system. Britain eliminated from its ancient list of capital crimes, charges like treason. The US, instead of making it a federal issue, left it to the states to decide. More importantly, among the world nation states, till now, as many as 96 countries have abolished capital punishment (as compared to barely 16, some 30 years ago). This indicates a growing global trend in favour of abolition of death sentence as a penalty.
India however retains the death penalty. Till now, at least 476 convicts are on death row – some awaiting verdicts from the higher courts on their appeals, some awaiting decisions from the President on their mercy petitions. What is even more alarming is that no fewer than 13 of these convicts have been found to be wrongly sentenced. In 2009, a Supreme Court bench in an extraordinary admission of error, stated that the judgments by which the apex court sanctioned their death sentence, were per incuriam (carelessness, or ignoring the statute and the law). The government is yet to take a decision on these wrongly sentenced convicts. (www.the hindu.com /opinion /lead /take-these-men-off-death-row /article 3606856.ece). The discrepancies between sentences delivered by one set of judges and their later countermanding by another set of their colleagues raise questions about the efficacy of our present judicial system. Is it judge-centric – determined by the possible personal bias-motivated interpretation of the law by individual judges? Is it then a sort of legal lottery for both the accused and the victims – their fate depending on the idiosyncracy of individual judges? Under the same set of circumstances, one judge sentences some one to death, another judge at the higher level commutes that sentence to life-imprisonment, and yet another acquits the same person in response to his appeal to a higher court. In such circumstances, judicial decisions can lose their credibility.
Public distrust in the judicial system, reinforced by the frequent administrative subversion of the judicial process, has been aggravated by the way Afzal Guru was sentenced to death, without any solid evidence of his direct participation in the attack on Parliament, but merely “to satisfy the collective conscience” of the nation (to quote the judge who passed the sentence), the way his family was denied the right to challenge the rejection of his mercy petition at the courts, and the way he was hanged in secret.
Apart from such shameful outcome of the deliverance of justice under our judicial system, there are other questions which need to be addressed in our debate over the issue of capital punishment. Has not the death penalty been directed more against the underprivileged sections of our society (who constitute the majority of those on the death row) due to the built-in class bias in our system? Does the death penalty serve as a deterrent against crime?
The arguments in favour of capital punishment also need to be taken into consideration during our deliberations. The concept of retributive justice is a powerful force that drives people to demand action against perpetrators of crime. The popular sentiments behind the mass outbursts in Dhaka’s Shahbag square calling for the hanging of the Islamic fundamentalists accused of mass killings in 1971, and the recent demonstrations in Delhi, demanding the hanging of the culprits accused of gang rape and killing of a young woman, are based on the ancient principle of giving people their just deserts. In simplistic terms, it means that those who work and serve society should deserve the fruits of their labour, and those who violate the societal norms deserve punishment. When this principle is extended to the penal system and formulated as the theory of retributive justice, the implication is that punishment, if proportionate, is the best response to crime. Our modern penal system thus advocates imprisonment for minor crimes, and capital punishment for murder.
Given this sanction of death sentence in the legal statutes of the sub-continent, people can quite well demand its implementation against certain types of criminals – as demonstrated in the public gatherings in Dhaka or in New Delhi. They argue that once released (after their completion of sentence) they may indulge in revenge killing of those who gave evidence against them. But while sharing their fear, we may also raise the question – is there not a dangerous tendency to degenerate from retributive justice to personal revenge? The moot point of the present debate on capital punishment is – how do we reconcile the powerful demand for death sentence by one section of society, and the equally powerful efforts by another section to abolish it?
Negotiating through the above mentioned areas of controversy, we can identify the following broad themes from which the participants in the proposed seminar can select their respective topics for presentation, or choose their own:
Retributive justice and reformist justice: the debate over the response to crime, whether through judicial sanction of violent retribution against individual criminals (e.g. capital punishment), or an understanding among a sensitive judiciary of how criminals are created by the socio-economic milieu, and how they can be reformed.
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