The death penalty has historically enabled tyranny. King Hammurabi of Babylon (1800 BC) codified the death penalty for 25 different crimes, omitting murder. By the 7th century BC, the Draconian code of Athens offered death for every crime committed, while the Roman Law of the Twelve Tablets codified it, crucifying Jesus Christ by 29 AD. Britain, influencing its colonies, encouraged hanging from the gallows, while beheading was acceptable for the upper classes. Under Henry VIII’s reign, 72,000 people were put to death—either boiled, or burnt on a stake. By the 18th century, 222 crimes—felling a tree included—were punishable by death. In 1857, when the British retook Kanpur, the soldiers took their sepoy prisoners to the Bibighar and “blew them from the cannon”. The ina trials of Shahnawaz Khan, Gurbaksh Singh Dhillon and Prem Sahgal (1945), held at the Red Fort, sought death for waging war against the king. Bhagat Singh, Rajguru and Sukhdev were sentenced to death in the Lahore conspiracy case on March 24, 1931. All through history, there have always been tyrants, murderers and regents, and they have sought invincibility through death.
Indian courts sentenced 64 people to death in 2014, ranking it in the top 10 of 55 countries where such sentences were handed out last year. Ever since the Supreme Court ordered in 1983 that the death penalty be used only in the “rarest of rare” cases, India has imposed a near-moratorium on capital punishment. In India, a man can come undone waiting for capital punishment. Our institutional machinery for death is plagued with delays and arbitrariness. Of India’s 300 people on death row, many have ‘waited’ for years. The utility of the death penalty is proving quite anachronistic.
How rare is rarest?
The hangman is a disgrace to any civilised country. Beyond its ethics, a basic unpredictability makes capital punishment a social evil. Take the “rarest of the rare” principle. India’s criminal justice system lacks a critical definition of what constitutes the rarest of rare cases, leaving it to the discretion of the judge’s conscience and socio-political beliefs. The endgame is a lethal lottery. Consider the Harbans Singh versus State of UP case (1982), in which three persons were awarded the death penalty, with appeals going before three different benches of the Supreme Court and each bench pronouncing a dramatically different sentence. This rationale of rating the proportionality of the crime and its aggravating circumstances cannot be objectively decided. A state of contradiction and confusion surrounds the jurisprudence of the death penalty in India.
We cannot guarantee accuracy in judgements. A study by Columbia University of 5,760 cases (between 1973-1995) reveals an error rate of 70 per cent in capital punishment verdicts. In India, an erroneous “condition precedent” has been established (Ravji alias Ram Chandra versus State of Rajasthan) leading to further sentences being capital punishments that, in spirit, ran contrary to the dictum of ‘rarest of rare’, which is the cornerstone of capital punishment in India (as established under the Bachan Singh versus State of Punjab case).
This humongous mistake was acknowledged when former judges of the SC and HCs wrote to the president to commute the death sentence of 13 convicts, as the punishment was accorded on a flawed application of the law. With the ethical principle of in dubio pro reo (when in doubt, favour the accused) compromised, mistakes could become the norm rather than the unacceptable exception. In India, custodial abuse is widespread, and wrongful convictions are not impossible. The irrevocability of the capital punishment allows for no correction of wrongful convictions. Human error will not be undone.
The tilt in the scales
Capital punishment can have a socio-economic bias too. In the US, 56 per cent of death row inmates are black or Hispanic. Although racial minorities comprise half of all murder victims nationwide, 77 per cent of the victims in capital convictions were white (Death Penalty Information Center). In India, 75 per cent of the convicts on death row belong to the socially and economically marginalised classes; 94 per cent of death row convicts are Dalits or from the minorities. The poor consistently get the short end of the legal stick. The death penalty is a consequence of poor legal representation and institutional bias. The gallows remain a poor man’s trap.
With so few actually hanged, the death penalty’s rarity has essentially failed to achieve deterrence. Research has consistently failed to establish direct correlation between the death penalty and deterrence. A National Research Council study (2012) finds that 88 per cent of criminologists believe that the death penalty is not a deterrent. The conviction rate for rape in India is 27 per cent, assuming the case makes it to trial. When the certainty of punishment is so low, a death penalty at the end of a long and tedious process is no deterrent. In a landmark judgement in January 2014, the Supreme Court noted that an “undue, inordinate and unreasonable delay in execution of the death sentence amounted to torture’.
Albert Camus put it this way: “For centuries the death penalty, often accompanied by barbarous refinements, has been trying to hold crime in check; yet crime persists. Why? Because the instincts that are warring in man are not, as the law claims, constant forces in a state of equilibrium.” Historically, the threat of punishment by death (during Roman and British colonial times, for example) has not prevented determined men from committing violence. For such men, death is only “a momentary spectacle, and therefore a less efficacious method of deterring others, than the continued example of a man deprived of his liberty.”
On Social Morality
The Dhamma leaves no grey areas around capital punishment. Buddhism's first precept advocates that individuals should abstain from killing or injuring all living creatures. Hinduism and Jainism, with belief in karma, encourage non-violence towards human beings, animals and even insects. The Italian jurist Cesare Beccaria (On Crimes and Punishment, 1767) theorised that there was no justification for the taking of life by the state, with the death penalty “a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good.”
George Bernard Shaw said the idea that society must punish and exact vengeance is incorrect. This primitive idea of justice is essentially legalised revenge, and expiation through sacrifice. To compensate for injustice, provide closure to the victims’ kin, suffering should ideally be inflicted on the wrongdoer for the sake of its deterrent value, so goes the argument. But this utilitarian approach corrupts the whole justice system. The shedding of blood cannot be balanced by an equivalent of guilty blood. In the US, the death penalty is sought in two per cent of intentional homicide cases, with actual award occurring in just one per cent. Out of that, in nearly two-thirds of the cases, the penalty is reversed on appeal. Thus, just 0.33 per cent of total intentional homicide cases lead to execution after an average gestation period of 12 years. Even for those victims’ kin who support the death penalty, the small proportion of conviction associated with long gestation periods postpone closure and only add to frustration (Gerber & Johnson).
In any case, frequent punishments are a sign of weakness or slackness, in our social fabric and our government. There is no man so bad that he cannot be made good for something. No man should be put to death, even as an example, if he can be left to live without danger to society. Condemning a terrorist to death is an easy path to take; but it creates martyrs. Keeping them in life imprisonment makes the cause less attractive and increases attrition. Their fame is diminished. Propaganda for jailed heroes is less potent.
The monopoly on violence in India ought to be held by the State. However, society can be protected from miscreants, criminals and terrorists through less disproportionate means that preserve our dignity, values and institutions.
The worldwide trend towards abolishing capital punishment continues. Globally, 140 countries have abolished the death penalty in law and practice, while the European Union (EU) has made “abolishing the death penalty” a prerequisite for membership. In December 2014, 117 countries voted for a moratorium at the UN General Assembly; 37 voted against and 34 abstained. Even the US is staying its hands—Nebraska recently became the 19th state repealing the death penalty. China’s executions have declined from 24,000 in 1983 to 12,000 recently, resulting in a shortage of organs for transplanting. Our neighbours too are on the downward trend: 357 await execution in Sri Lanka, 400 in Bangladesh and some 8,000 in Pakistan. Abolition is an inevitable international trend, signalling the broad-mindedness of civilised countries. It’s also an international obligation.
There are multiple alternatives to the death penalty. Longer prison sentences, with a lengthy guaranteed minimum sentence before parole can be considered, and have been utilised in the US for decades. Commutation is another. In India, after the award of the death sentence by a sessions (trial) court, the sentence must be confirmed by a high court to make it final. Once confirmed, the condemned convict has the option of appealing to the Supreme Court. If rejected, he can submit a mercy petition to the President and the governor. Over the last decade, while 1,367 death sentences have been handed out, 3,751 sentences were commuted to life imprisonment. Certainty, and not severity, remains a bigger deterrent to crime. Lifelong imprisonment with no chance of bail or parole remain a better socio-political alternative. It may be achieved either by constitutional amendments (as in case of Mexico, South Africa and other abolitionist countries) or through use of the concurrent list (Seventh Schedule to the Constitution of India).
As a signatory to the International Covenant on Civil & Political Rights (ICCPR) (1966), India is committed to phasing out the death penalty. The Convention on the Rights of the Child (CRC) recommended in 2000 that India abolish death penalty to juveniles. In 2012, the United Nations Human Rights Committee (UNHRC) recommended that we establish an official moratorium on executions and move towards abolishing the death penalty, besides commuting all death sentences to life imprisonment and ratifying the second Optional Protocol to the ICCPR.
The Bachan Singh vs State of Punjab case in 1980 was successful in limiting the scope of capital punishment, but yet again, the constitutional validity of the punishment was upheld. The case established the provision of the “rarest of rare” dictum, which even after 35 years, still remains India’s unchanged judicial position. The arbitrariness of the “rarest of the rare” doctrine, laid bare by an Amnesty International and PUCL study called ‘Lethal Lottery: The death penalty in India’ (2008), should force us to rethink if the death penalty makes sense in the absence of uniform criteria and an objective evaluation of legislative thresholds.
India, as one of the 58-odd countries where death penalty is retained, needs to recognise the changing global scenario. The death penalty is not just a remedy available at the disposal of the law, but a human rights issue, beyond the pale of law. For the largest democracy, the death penalty is an anomaly. It needs correction. Many that live do deserve death. And some that die deserve life. One must not be too eager to deal out death in judgement.
(Former BJP general secretary Feroze Varun Gandhi is the MP from Sultanpur, Uttar Pradesh.)