Law History & Culture

The end of the origin

The 19th century German philosopher Friedrich Nietzsche, who understood, perhaps more than most, how punishment as a force of law is “overdetermined by utilities of every sort,” was among the first to show us how the death penalty lacked basis in any unfailing penological theory. The use of pain as a means of retribution, he argued, stemmed out of innate human desires, which are often incongruous and ultimately self-defeating. The same urges that led the Romans into creating a system of law where injury caused was to be compensated by the payment of damages — a product of contractual relationships between creditor and debtor — by Nietzsche’s reckoning, translated into the criminal justice system, where a false equivalence is drawn between injury and pain. In other words, when the law views something as tantamount to a wrong, it sees the act as creating a debt, which can only be repaid by punishment. In the case of the death penalty, its philosophical weakness, therefore, arises from an urge to associate the victim’s injury with the convict’s pain; punishment, Nietzsche wrote, is seen as “recompense to the injured party for the harm done,” an altogether absurd proposition when you consider that in the case of the death penalty the compensation made is to us, the society at large.

In his forthcoming book, Abolishing the Death Penalty: Why India should say no to capital punishment, Gopalkrishna Gandhi does not specifically invoke Nietzsche. Indeed, there isn’t anything Nietzschean in his larger conclusions. But he shows, with astounding clarity, much like Nietzsche did, that the foundation for the death penalty, in a modern moral state, unravels on the face of both fact and theory. Gandhi dedicates this essay-length book — an essential read, especially given the times we live in — to the men and women on India’s death rows, and also to the growing number of devoted lawyers defending death row convicts and espousing the case of the abolitionists. Although 140 of the 195 countries in the world might have ended the use of the death penalty, be it through law or through practice, India sees capital punishment as not only legal but also as somehow necessary. It is this latter claim that Gandhi chiefly rebuts, in writing which is sharp, elegant, and precise.

The book is divided into six, short chapters, each of which seeks to dispel the legitimacy of the various foundations that proponents of the death penalty often invoke. “Cruel in its operation, ineffectual as deterrence, unequal in its application in an uneven society, liable like any punishment to be in error but incorrigibly so,” writes Gandhi, “the death penalty compounds these grievous flaws by yet another. It leaves the sentiment for retribution…unrequited by creating new thirsts for the same sentiment.” We are consigned, therefore, as he shows us, to circling in a dizzily vicious cycle of vengeance, which, in the final analysis, can only be seen as depressingly futile.

In spite of the book’s brevity, the range of Gandhi’s intellectual study is breath-taking. He cites from both ancient western and Indian philosophy — from the likes of Kautilya’s Arthashastra to Plato’s Dialogues — from the reigns of Indian empires of the past to that of the colonising powers of the West, from literature and films alike, to display to us, in his words, the sense of why a need for retribution is “as physical as it is psychological.” Retribution, he writes, is otiose plainly because it is a “cannibal,” where the eater has to be eaten.

Gandhi also provides a valuable synopsis of the history of the death penalty in India, from the relative philosophical stances of the country’s various presidents — and their use of the power of clemency — to the Supreme Court’s enunciation, in the Bachan Singh case of 1980, of a doctrine through which the death penalty is now granted only in what are termed as the “rarest of rare” cases. The only quibble that one might mention is that while it might indeed be true that the “rarest of rare” canon has reduced the number of instances in which the death sentence is awarded, the principle has equally had a deleterious impact on Indian penological jurisprudence.

For this, Gandhi doesn’t place enough blame on the courts. Not only was the Supreme Court wrong in upholding the death penalty as a constitutionally valid form of punishment, it also erred in creating this standard that has proved far too arbitrary for judges from the lower judiciary to apply with any sense of rigour and care. But, as Gandhi correctly points out, the ultimate blame lies in the larger Indian state’s belief that its sovereignty accords it a power to take life. “The death penalty,” he writes, is seen as “a symbol of a state’s political strength, even as a nuclear weapon is a sign of its military strength.”

In his concluding chapter, Gandhi lays to rest the argument. A punishment, he writes, has five purposes: the punitive, the preventive, the retributive, the normative and the experiential. Leaving aside the first four purposes, and even assuming they are fulfilled by the award of capital punishment, the final purpose, which has to really be seen as the most vital in a state that believes in reformation, is not achieved for the simple reason that death comes in the way. Or, as Gandhi brilliantly asks: “What possible purpose has been served by a punishment if the one punished can feel it coming, but not know its end?”

Suhrith Parthasarathy is an advocate practising at the Madras High Court.

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Printable version | Apr 21, 2021 11:52:22 AM | https://www.thehindu.com/society/history-and-culture/The-end-of-the-origin/article16699829.ece

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