The Rarest Of The Rare Case?

In recent weeks, the Indian public mind (often cutely managed by a savvy media world), has been much drawn towards two happenings.

One of these concerns the propagation of "Gandhigiri" (a rather unfortunate analogue of "Chamchagiri" or sycophancy, and "Dadagiri" or ganglordism) by aMumbai film wherein Gandhi's preferred methods of non-violence are sought to be made applicable to everyday life. Interestingly, some polls have it that this film has done more to popularize Gandhi than anything that has been done hitherto. Some thought that.

The other happening relates to the confirmation of the death sentence on AfzalGuru who was one of the accused in the Parliament attack case

Amazingly, many of the very same social groups who are taken in by the Gandhian approach to problems—as depicted in the film—are also the ones hot for Afzal's death by hanging. Altogether a rather gruesome contradiction. One would think you can either have Gandhi or you can have hanging.

Here is what Gandhi had to say on the subject of capital punishment: "I cannot in all conscience agree to anyone being sent to the gallows. God alone can take life because He alone gives it."

Given the high regard in which the Supreme Court of India is held for its competence and probity, few ought to question the determination of guilt it has made in the case of AfzalGuru. After all, it is to that competence and probity thatS.A.R. Geelani owes both his life and his freedom, having been earlier sentenced to death by the trial court in the very same criminal case.

Gandhi's allusion to "conscience" here does, however, seem to rebuke a phrase in the text of the judgement delivered by the Honourable Court upholding the death sentence. The Honourable Court has averred that only the death sentence would satisfy the "collective conscience" of the country in the matter. One must ask as to which order of conscience ought to have taken precedence in the matter of sentencing—one that abhors taking life or one that seeks it to propitiate popular sentiment. In that conundrum, we stand with the Mahatma.

As we also know, Gandhi's rejoinder to the Code of Hammurabi ("eye for an eye, tooth for a tooth") was a witty and telling one: eye for an eye and surely one day it would be a blind world!

Staying with Gandhi for a minute, perhaps his most discomfiting moment in relation to capital punishment was to come when the revolutionaries, Bhagat Singh, Sukh Dev and Rajguru were sentenced by the British to be hung.

The question has often been asked: Did Gandhi do all he could to seek their reprieve from King George, with whom he was then preparing to share the first Round Tableconference? No easy answers here, although Gandhi did point out to the colonial government that the sentence was not an "irreversible" one. He was on several occasions to plead that there is little he could do. What, however, is on record in the matter is the following statement from Gandhi:

"The government certainly had the right to hang these men. However, there are some rights which do credit to those who possess them only if they are enjoyed in name only."(Collected Works, Ahmedabad, Navjivan, Vol.45, pp.359-61, Gujarati)

The direction from "Gandhigiri", then, is explicit enough: you may have the right to sentence AfzalGuru to death, but it would do you credit not to exercise that right.

The problem may be that India's highly meritorious forward classes are as severely brutalized by events as any in America. Thus a certain tribalism seems to have overtaken their view of things. It remains a thought, nonetheless, that the "eye for an eye, tooth for a tooth" dictum does not obtain in most crimes committed. For example, no country yet has a law that decrees that an arsonist must be punished by an official bonfire of all his belonging, nor a rapist be punished by being required to offer his womenfolk for retaliatory rape (except in some tribal communities). The instinct, therefore, to seek death for murder seems to answer to some residual animality wholly repugnant to civilized life.

The most forcefully telling indictment of the practice of capital punishment that I know of is that of AlbertCamus:

"What is capital punishment if not the most premeditated of murders to which no criminal act, no matter how calculated, can be compared "

(cited in Wolfe Burton H. Pileup on Death Row, N.Y. Doubleday & Co.,Inc. 1973, p.419).

Clearly, as Michael Radelet points out, "a civilized society must be based on values and principles that are higher than those it condemns."(Facing the Death Penalty: Essays on Cruel and Unusual Punishment, N.Y., 1989)

It must have been on the basis of such an understanding of civilized life that the Hammurabi Code was opposed by Voltaire, Diderot, Thomas Paine, Adam Smith, and David Hume. Quite some gathering there, wouldn't you say? Immanuel Kant was to put that opposition on the clearly articulated anti-utilitarian perception/conviction that "people are valuable in themselves, regardless of whether they are useful, or loved, or valued by others." (cited in MacKinnon, Barbara, Ethics: Theory and Contemporary Issues, 2nd ed., N.Y. Wadsworth Pub., Co., 1998).

MacKinnon makes the further excellent observation that "using the concern for life that usually promotes it to make a case for ending life is inherentlycontradictory" (p.133). But, when the blood is screaming, especially among the socially endowed, who cares forcontradictions? Nonetheless, since capital punishment has indeed been abolished in many countries, the case for pushing the argument remains a strong one. It may perhaps be a useful reminder to the Hindutva lobby here in India that among those honourable countries is one named Nepal! Three cheers for Nepal.

As part of that case-building, it must be repeatedly underlined that the utilitarian argument—quite apart from the philosophical/humanist one—remains flawed and fallacious.

For example, the death penalty has nowhere deterred the crime of murder. In 1989, Senator Edward Kennedy stated before the House Judiciary Committee:

"Not one of those countries (western democracies) has capital punishment for peacetime crimes, yet everyone of them has a murder rate less than half of the United States." Likewise, FBI statistics for 1976-1987 state: "In the twelve states where executions take place, the murder rate is exactly twice the murder rate of the thirteen states without the death penalty."

(source: The Information Series on Current Topics: Capital Punishment, Cruel and Unusual?, Wylie:Information Plus, 1998.)

I have on purpose adduced above instances from the United States of America, since our own endowed social groups are rather more prone to acknowledging the truth of anything if it has a US of A label on it. This is a bit sad, because our own Fali Nariman, Shanti Bushan, justice Bhagwati and others have made telling critiques of the logic of capital punishment.

Even when the injunction about the "rarest of rare" cases is accepted for argument, does the case of AfzalGuru meet that requirement? Here is a clue from what ShantiBhushan has to say:

"Merely because someone colludes with the actual perpetrators does not mean he/she gets death penalty.

The role of conspirators needs to be assessed. Hundreds were killed in Gujarat after Godhra. Does it mean there would be death penalty for all of them?"

Let us recall, for example, that in the Gandhi assassination case, Nathuram Godse, who pulled the trigger, received the death sentence, but his brother, who was intimately part of the conspiracy, did not. AfzalGuru was neither a chief plotter nor a participant in the actual attack on December 13; if provenly anything, he was a sympathetic, small-time facilitator, although guilty nonetheless. Remembering that he seemed not to have received the benefit of legal representation through the trial, one must ask whether the death sentence fits the merits of his case. This speculation independent of the fact that we regard capital punishment for any offence as deeply offensive to the veryraison d'être of human existence.

Speaking of which, let us not forget the other troublesome question, that of human error. Michael Radelet counted, since the turn of the century, 343 cases "in which a defendant facing a possible death penalty was wrongfully convicted. Of these, 137 were sentenced to death, and 25 were actuallyexecuted" (Ibid.,). Closer at home, Nariman and Bhagwati have persuasively pointed out that the executed Kehar Singh (Indira Gandhi murder case) may actually have been innocent.

As the government of India mulls over the mercy petition submitted by Afzal Guru's family, they would do well to keep all of those things in mind. Most of all, they should remember that in the very same case, as stated earlier, S.A.R.Geelani was pronounced guilty and sentenced to death, only to be subsequently exonerated from all culpability. To return to America: it should be recalled that just recently oneof the 9/11 attackers, Zachariah Mossaveih, was not given the death penalty just on the basis that his childhood was too abused to render him wholly responsible. No insanity, mind you, just childhood abuse. This is when he was otherwise found guilty in the first degree.

Or take the case from Peru (HT, p.19, Oct.,15): "Shining Path founder...Guzman, whose messianic communist vision inspired a 12 year rebellion that cost nearly 70,000 lives, was found guilty onFriday of aggravated terrorism and sentenced to life in prison." Clearly, even Peru with a record more disreputable in many ways seems more enlightened and rational. Let us hope the President reads suchnews.

As to "collective conscience", it can work at dangerous cross purposes among different sections of the population, and in different regions of India. If politics are to be a consideration, the largest and the most fruitful view must necessarily be taken of the matter. Such a course would not be out of sync with what far-sighted rulers have done repeatedly in history.

Dr. Badri Raina, Professor of English at the Delhi University, writes on cultural and political issues.