Capital punishment is retributive justice and abolishing it is a risk that modern states need to take, says Pamela Philipose.

Gabriel Garcia Marquez's classic, One Hundred Years of Solitude, begins with a line that could be read as a powerful argument against capital punishment: “Many years later, as he faced the firing squad, General Aureliano Buendia was to remember that distant afternoon when his father took him to discover ice.”

The imminent extinction of a sentient life endowed with thought and memory, linked intimately to the lives of others, is a fearsome thing. So it is entirely understandable why that angst-ridden question — Should India remove capital punishment from its statute books? — refuses to go away. Here we are, with our much-feted legacy of non-violence, with our burnished democratic Constitution and Credentials, still attached by the feet to the ever-shrinking corner of the globe which continues to defend the death penalty.

Uneasy defence

It has been an uneasy defence for sure. The umbrella formulation that the death penalty should only be accorded in the “rarest of rare cases”, put forward in 1980 by the Supreme Court in Bachan Singh v. State of Punjab, has remained an uncertain talisman with Indian courts interpreting it in an astoundingly variegated manner, but it has remained a talisman nevertheless. Indian Presidents, too, have routinely dragged their feet over rejecting mercy pleas. The country has also, incidentally, seen attempts to institutionally “reform” the administration of the death penalty. The ‘Model Prison Manual for the Superintendence & Management of Prisons In India' (2003) recommends that all prisoners going to meet their fate at the gallows be made to wear “a cotton cap with flap” so that he/she will not be able to see the gallows — an highly ineffectual aid, surely, under such circumstances.

Internationally, India continues to remain in an ambiguous position. It is party to the International Convention on Civil and Political Rights that requires countries to move towards the abolition of capital punishment, but has desisted from ratifying the Second Optional Protocol to the Convention and last November it voted along with China and Saudi Arabia to oppose a UN resolution for a moratorium on the death penalty.

So while there may be some curling of toes over the prospect of denying criminals on death row their right to life, the Indian State has consistently balked at doing away with the hanging option. By and large, the argument put forward by the Law Commission of India in 1967 continues to hold sway. In its 35th Report, the Law Commission pronounced that “Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”

Necessary risk

The fact is that 139 countries in the world — and their number is rising not declining — despite serious security challenges have taken this “risk”, precisely because it is a risk that modern and modernising states should take, given that not doing so would compromise the very notion of an enlightened state. Remember that many of these countries have had long and grisly trysts with capital punishment. Pre-19th century England, for instance, had over 200 “crimes” that could invite a hanging sentence. The list included thievery (goods valued at five shillings and more), maiming horses, impersonation and ‘sodomy'.

One of the justifications for persisting with the death penalty is, of course, that inchoate, arbitrary, unquantifiable and often irrational concept known as “public opinion”. Indian courts, incidentally, have been sensitive to “public opinion”. In a judgment, Dhananjoy Chatterjee v State of West Bengal, that had led in 2004 to the last public hanging India has witnessed so far, the Supreme Court stated: “Imposition of appropriate punishment is the manner in which the courts respond to society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime…”

But “society's cry for justice” is an uncertain foundation for justice as Arthur Chaskalson, who served as Chief Justice of South Africa from 2001 to 2005, reiterated. He put it this way, “Public opinion may have some relevance to the enquiry, but in itself it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication…”

The founding fathers and mothers of post-Independence India did not ban capital punishment and retained the 1861 Indian Penal Code providing for the death penalty. But it was not as if they did not envisage the possibility of the country exercising that option at some point. Amiyo Kumar Ghosh, a member in the Constitutent Assembly, while opposing an amendment that wanted a partial ban on capital punishment, went on to say, “I think that with the growth of consciousness, with the development of society, the State should revise a punishment of this nature…”

Why persist?

The questions we then need to ask is why, despite the long decades that have intervened since those words, India still cannot countenance such a possibility. Why does it continue to perceive the hangman's noose as coterminous with the scales of justice? Why does it settle for peremptory and irrevocable responses to heinous crimes, when the world is engaging with ideas of restorative rather than retributive justice? Can't post-independence India not hold itself to standards higher than those set by its one-time imperial rulers, standards that had been sharply critiqued by the freedom movement?

A passage from Bhagat Singh's last petition to the Punjab governor should give us pause: “As to the question of our fates, please allow us to say that when you have decided to put us to death, you will certainly do it. You have got the power in your hands and the power is the greatest justification in this world. We know that the maxim ‘Might is right' serves as your guiding motto. The whole of our trial was just a proof of that. We wanted to point out that according to the verdict of your court we had waged war and were therefore war prisoners. And we claim to be treated as such, i.e., we claim to be shot dead instead of to be hanged.”

He and his comrades in arms, Rajguru and Sukhdev, were hanged on March 23, 1931.

Keywords: death penalty