Colonial legacy

Print edition : March 08, 2013

Amnesty International members staging a protest demanding the abolition of the death penalty, on the occasion of the 6th World Day against Death Penalty, at India Gate in New Delhi on October 10, 2008. Photo: S. Subramanium

In Bangalore, a candlelight protest against the death penalty. A file photograph. Photo: Sampath Kumar G.P.

June 2004: Relatives of Dhananjoy Chatterjee, who was hanged, making a last-minute appeal for clemency. Photo: SUSHANTA PATRONOBISH

December 2006: Relatives of the Parliament House attack victims demanding the death penalty to Afzal Guru. Photo: R.V. Moorthy

Retribution as a basis for criminal punishment is a legacy of the past. It has no place in an enlightened future.

THOSE who despair about the descent of humanity into a vortex of violence should find some solace in the emergence of a decisive global consensus against the death penalty. When the United Nations was established in 1945, practically the whole world imposed capital punishment—only eight countries did not have the death penalty. Today, 137 countries have abolished the death penalty in law or in practice, supporting a near-universal call by the U.N. General Assembly at the end of 2012 for a moratorium on the death penalty. At the end of 2012, even Afghanistan, bathed in blood, called for a moratorium on capital punishment.

But not India. In fact, at the very moment that the General Assembly adopted a call for a moratorium on the death penalty, India mocked the global community by ending an eight-year period in which its gallows were silent, executing two convicts in rapid succession.

Deterrence and retribution

The main resistance to India joining the global consensus on the death penalty comes from the belief that common people can be made to obey the law only through fear instilled by harsh punishment. The view that exemplary capital punishment will deter capital crimes is a matter of faith—there is no empirical evidence to support this view.

The British and their collaborators had made a similar mistake. They thought that the common people of India would be deterred and cowed down by the violence of the state. A young scholar from Columbia recently shared with me data collected from the National Archives showing that the British were hanging on average three people daily in the 1920s in a desperate bid to frighten Indians into obeying British rule. We know how that ended. The government should know how this will end too.

Another key driver of capital punishment is retribution. The role of vengeance in punishment is ambiguous in India. There are authorities in favour of and against accepting retribution as a legitimate goal of sentencing in India. Even if it is not formally acknowledged, there is little doubt that vengeance does play an unofficial role in the approach of judges, victims and the general public in many cases.

Informed by modern cognitive science, criminal justice systems have moved away from vengeance, focussing on protection of society and rehabilitation of the criminal as the key goals of criminal justice, along with care for the victim. Vengeance has also been tempered with an intensely human, personal and spiritual debate over its rationality and utility. Societies have also learnt how corrosive violent punishments can be, breeding more violence and retribution rather than ending it. The world is increasingly seeing what Gandhiji saw years ago—that an eye for an eye would make the whole world blind. The world is learning to value and take responsibility for every human being, victims and offenders, and to treat them with humanity and kindness. Retribution as a basis for criminal punishment is a legacy of the past. It has no place in an enlightened future.

Institutional support

The Indian establishment remains impervious to the radical change in attitude to capital punishment worldwide (even China has reduced the number of capital offences and has reduced its quantum of executions) mainly because of the strong support for capital punishment in the police and the judiciary.

India’s police and judicial institutions were invented by the British and carried through unreconstructed into our Constitution. Both wings of the government by and large believe strongly in the same strong punitive approach to law enforcement that prevailed in colonial times. Their fundamental culture and relationship with people remain resistant to ideas of freedom and equality that have animated the global change. The spirit of the Constitution is yet to penetrate the soul of the Indian police and judiciary.

The judiciary’s strong support for capital punishment is evidenced by the fact that no Bench of the Supreme Court or High Court has been persuaded by, or has even seriously discussed, Justice P.N. Bhagwati’s powerful dissent in the 1980 Bachan Singh judgment of the Supreme Court in which he struck down the constitutionality of the death sentence.

The judiciary did curb capital punishment to some extent—as needed to keep it alive. The majority in Bachan Singh narrowed down the scope for imposition of capital punishment to the “rarest of rare cases when the alternative option is unquestionably foreclosed”. Unfortunately, subsequent judgments have widened the doors to capital punishment, reversing the trend of the 1980s. The “rarest of rare” standard has been substantially diluted. The focus on the rehabilitative potential of the criminal—and not just on the nature of the crime—has been largely lost.

In a 1979 judgment ( Rajendra Prasad vs State of UP), Justice V.R. Krishna Iyer notes: “The legislative development, through several successive amendments, had shifted the punitive centre of gravity from life taking to life sentence.” In particular, some 40 years ago, in 1973, Parliament, under Indira Gandhi’s leadership, made an important move towards ending the death penalty by amending the Code of Criminal Procedure (CrPC) to reverse the colonial era rule that capital punishment was the default punishment for murder, with the alternative punishment of life imprisonment being an exception that had to be specially justified. The law revised in 1973 stipulated that life imprisonment would be the norm for murder, with capital punishment being an exception that had to be justified. But the legislature has not followed up on this initial lead. The political leadership has stopped short of removing the death sentence from the statute book, accepting the colonial proposition that fear of the death sentence is necessary to get people to obey the law. This policy approach of the political leadership reflects the continued strong belief of the majority of the political class in outdated and obsolete ideas of deterrence and retribution.

Arbitrariness in adjudication

Even while stopping short of ending capital punishment either temporarily or permanently, the Supreme Court has reflected with unusual openness on its capital punishment decisions. In particular, three recent decisions of the Supreme Court in Swami Shraddananda (2008), Santosh Kumar Bariyar (2009) and Sangeet (November, 2012) warn the country in a commendable show of honesty that the awarding of the sentence of death depends a good deal on the personal predilections of the judges constituting the Bench. In other words, whether you get life imprisonment or capital punishment depends not only on the facts and the law, but also on who happens to be the judge. It was not surprising, therefore, that one of the independent assessments of Indian court decisions on capital punishment was called “Lethal Lottery”.

Punishment that is based on the personal predilection of the judge is arbitrary punishment. It does not meet the standard of Article 21 of the Constitution, which provides that no one shall be deprived of life and personal liberty except in accordance with a (fair and reasonable) procedure established by law. It also violates the Article 14 guarantee of equality.

Given that what is at stake is the life of human beings, it is shocking that neither the government nor the courts have reacted to these repeated and extraordinary admissions by the highest court of the land that death sentences are being awarded in an arbitrary manner.

The continued execution of convicts with this knowledge that they are being executed as the result of a system that is flawed by subjectivity is nothing short of blatant violation of the constitutional rights of those awarded the sentence and those executed.

The statements of the court in these cases should have led to an immediate moratorium on execution pending a review of all cases. The court should itself have done it. Since the courts have not acted, the government should have stepped in to protect the constitutional rights of the people by declaring a moratorium on executions.

Offends constitutional vision of justice

Every punishment by a court, including the death sentence, is delivered and implemented in the name of justice. However, justice is all too often misunderstood as merely legal process—which implies that a procedurally correct court can never act unjustly. The trouble with this approach is that it fails to capture the essence of the idea of justice—as a normative and substantive standard of human conduct. Justice is a standard of conduct against which the decisions of every court must be measured. It is not the description of what a court does.

If justice is seen as a standard of human conduct, for an Indian court, justice refers to the standards of conduct set out in the Constitution of India—in particular, in the Preamble, in the Fundamental Rights, in the Directive Principles of State Policy and in the Fundamental Duties of Citizens.

The values in the Constitution need to be appreciated in the light of the Constituent Assembly debates, the Objectives Resolution of the Constituent Assembly and, ultimately, the national struggle for freedom.

A central tenet of the Indian freedom struggle and hence one of the foundational principles of the nation is non-violence. Non-violence is therefore an integral part of the constitutional idea of justice. An act as violent as deliberately killing a human being as punishment—a practice given up by most countries because of its violent nature—is therefore an act of grave injustice under the constitutional idea of justice.

The need to understand the Constitution as a set of values was eloquently expressed in Justice Bhagwati’s dissent in the 1982 Bachan Singh judgment of the Supreme Court on capital punishment. In answering the question whether capital punishment is consistent with the Constitution of India, Justice Bhagwati says: “The Constitution of India is a unique document. It is not a mere pedantic legal text but it embodies certain human values, cherished principles, and spiritual norms and recognises and upholds the dignity of man.…”

Gandhiji described the unethical nature of violent punishment with his usual eloquence. He said: “If India makes violence her creed, and I have survived, I would not care to live in India. She will cease to evoke any pride in me. …Non-violence is not doing, voluntarily, any injury to person or property. Thus, I would not punish or procure punishment even of General Dyer for his massacre….”

The irrationality and futility of capital punishment was brought out by the philosopher Bernard Shaw, who said: “And so to the end of history, murder shall breed murder, always in the name of right and honour and peace, until the gods are tired of blood and create a race that can understand.”

The best way to attack a nation is not to attack the brick and mortar of its buildings or even the flesh and blood of its leaders. A nation is most effectively destroyed when its fundamental values are violated. If this republic violates its fundamental value of non-violence and embraces violence, it will be the most vicious and effective attack on the republic.

When the officials of the republic tighten the hangman’s noose around convicts, they should remember that they are also tightening the noose around the republic itself. History will one day ask: who was the greater threat to the Indian republic founded on the principles of truth and non-violence, justice and fraternity: Ajmal Kasab? Afzal Guru? Or those who hanged them?

Professor G. Mohan Gopal is Director, Rajiv Gandhi Institute for Contemporary Studies, New Delhi. He is former Director, National Judicial Academy, and former Vice Chancellor, National Law School of India University, Bangalore.

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