Why rethink the death penalty?
by Sandhya Jain on 04 Dec 2012 6 Comments

The call for rethink comes close on the heels of NewDelhi’s vote against abolition of the death penalty in the UN general assembly,and reflects the desire of a section of our political and judicial elite toconform to European liberalism, even at the cost of the needs of Indiansociety. They are egged on by NGOs aligned with Amnesty International andsimilar bodies, and perhaps funded by western sources.


Indian law is being sought to be changed withoutadequate public debate; but will impact the lives of the Indian people. Hence, wemust pay close attention to the merits of the issues at stake, and demand toknow who is manipulating the discourse.


Speaking at an event organised by a Maharashtranewspaper on November 26, 2012, the Home Minister revealed that after Kasab’shanging, the Centre andRashtrapati Bhavan received a representation from 13-14 eminent Indians demandinga ban on death penalty because it was cruel. These unknown persons (whose namesmust be released so we can learn their ideological bias) said convicts could insteadserve in jail without parole. Similar letters were received from theinternational community (read Western Christian nations). Mr. Shinde said Kasab’shanging was not “cruelty” as he was part of a team that killed 166 people inMumbai. Yet he used the Kasab case as a launch pad to promote abolition of deathpenalty.


OnDecember 1, soon after a two-judge bench of the Supreme Court said it was timeto revisit the death penalty, the apex court asked the Centre why mandatingcompulsory death penalty for some crimes should not be struck down asunconstitutional. Section 31A of the Narcotics Drugs and PsychotropicSubstances Act mandates death penalty for repeat offenders trading in hugequantities of contraband. The Bombay High Court read down the law to give theconcerned judge discretion to impose life sentence; when the Centre challengedthis, the Supreme Court took suo moto notice of the mandatory death penalty.


Thismove by courts to enter the legislative domain and impose ideological infatuationscompromises the constitutional separation of powers. Yet some blurring of thelines is being encouraged by Parliament itself, in the form of proposals toinclude the Chief Justice of India in the search committee to appoint personsto certain constitutional posts. This is could result in unforeseen chaos unlessnipped in the bud.

The massacre of unarmed people in Mumbai in November 2008 and the menacingproportions assumed by the drug trade with deadly impact on society as a whole areinstances of heinous crimes where large groups are targets of remorselesscriminals waging war on civilisation itself. For four decades, India hassuffered ISI-sponsored terrorism (Khalistan and jihad) which has claimedmultiple victims in innumerable incidents of violence across the land, even asnew social crimes that target whole families in mindless acts of killing arebecoming known. The sexual abuse of minor children, and physical violenceagainst young girls and women by jilted or unwanted suitors or irate relatives,are becoming disturbingly widespread.


YetIndia has never been akin to Charles Dickens’ England where minors could rot injail without reprieve for stealing a loaf of bread. Nor do we have the west’shistory of kangaroo courts and public lynchings, often of innocents.


Henceour laws, and the jurisprudence behind them, must reflect our real needs andnot conform to the passions or fashions of western thought or practice. Here,we may note, a Constitution Bench of the apex court in 1980 established theprincipal of “the rarest of rare” cases for imposing the death penalty. Thisprinciple was invoked in the Indira Gandhi murder case and others, but the apexcourt now feels it requires a “fresh look” owing to the absence of uniformity aboutwhat constitutes ‘rarest of rare’ cases.


Thetruth is that crime has ceased to be rare; it has grown in depravity and the volumeof victims who could be targetted in a single act of violence – bomb blasts in movingtrains, markets, cinema halls, or roads. As technology helps motivatedcriminals to target more and more unarmed victims with impunity – victims arealways more than those caught and punished – some argue that the death penaltyhas not had a deterrent effect on crime, hence it should be abolished in favourof incarceration for life.


Theargument is faulty. The death penalty (or jail term) is not about deterrence;it is a judicially imposed punishment for a crime in which the accused isconvicted after due process of law. So when families or villages or groups ofcitizens are targetted en masse, resulting in multiple murders, the abolitionof the death penalty could make citizens lose faith in the judiciary itself. Thiscould trigger undesired responses from some citizens, as also from anoverworked and under-appreciated police force.


Theargument that lifelong incarceration is superior to the death penalty is also flawed.American journalist Fareed Zakaria says America has over 6 million citizens injail, more than Stalin put in the Gulag Archipelago atits height! A nexus of private companies running state prisons keeps jailspacked to capacity, and richly funded, even at the cost of higher education;since 1980, California has built one college campus and 21 prisons – a modelIndia does not need to emulate.


Ina parallel development, a division bench of the Supreme Court on November 25,2012 stressed that life imprisonment means the balance of life and not the 14 yearsnormally associated with life term, or 20 years associated with gruesome crimes.The court frowned on the practice of en masse release of convicts by stategovernments on ‘festive’ occasions and said release should be after case-by-casescrutiny only – an infringement on executive power.


Ironically,the argument that some convicts must be incarcerated for life and never returnto normal society tilts the balance in favour of the death penalty. Jailsentences are for persons who have to pay for certain transgressions, and thenreturn to civil society.


The author is Editor, www.vijayvaani.com

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