In a country where people die of heat waves, extreme cold, homelessness, hunger, malnutrition and extrajudicial executions, abolishing the death penalty is going to be a challenge because life is so devalued. Loss of life is normalised and an attendant rationalisation process masks a tragic inevitability. In such a context, getting our society to appreciate the moral, political, and constitutional case against the death penalty is a task with many hurdles.
Deterrence and “just deserts” are considerations that dominate arguments in favour of the capital punishment. At the heart of the deterrence argument lies the belief that harsher punishments will reduce crime. But, criminology research shows that it is the certainty of punishment, not harshness, which is a better deterrent. The National Academy of Sciences, in the US, after going through several such studies, made the suggestion that deterrence be omitted as a consideration in discussing the death penalty.
From the perspective of “just deserts”, individuals deserve a punishment as harsh as the death sentence for the crime they have committed. However, taking away of life as a punishment is based on the view that crime and criminality are solely the concern of an individual and in doing so, exonerates society of any responsibility. The creation production and perpetuation of crime are complex sociological phenomenon and it is inaccurate and too simplistic to reduce it to purely questions of individual will and morality. Society must own up to its share in crime and in that context, extinguishing life as a punishment is morally unjustified.
The recent spurt in death penalty orders in India is on account of concerns surrounding sexual violence. All four executions since the turn of the millennium have involved such offences and it speaks of the political nature of the punishment. The Delhi gang rape case and the Kathua rape case saw death penalty being extended to non-homicide offences amid a clamour for harsher punishments. When faced with such incidents, governments find the death penalty a convenient political response. It is evident that in a society like ours, punishments like the death penalty will not reduce sexual violence. It requires a layered and nuanced approach that is not politically expedient.
The Supreme Court upheld the constitutional validity of the death penalty in 1980 and has not since revisited the question. The death
penalty in a criminal justice system like ours is unconscionable and fraught with danger. The Death Penalty India Report (May 2016) shows that death-row prisoners belong to the poorest and most marginalised sections, which can’t afford proper legal representation.
Our criminal justice system is violent and corrupt and it is the poorest and the marginalised who pay the heaviest price.
In a system that routinely relies on investigative and prosecutorial malpractices to achieve convictions, there is always the danger of wrongful convictions. It takes an unacceptable level of callousness to retain the death penalty in such a system. If ever an example was needed, the acquittal of the Shindes by the Supreme Court almost 10 years after it had upheld their conviction is a proof of the danger we are flirting with.
No country in the world has abolished the death penalty with a majority of its population supporting such a move. It takes tremendous political and judicial leadership to go down that road. It will take introspection and the boldness to acknowledge that democracy also has a serious counter-majoritarian function.
Anup Surendranath is an assistant professor of law and executive director, Project 39A, Delhi’s National Law University
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