‘We need other forms of punishment’

Interview with Shashi Tharoor, Member of Parliament.

Can you throw light on the key aspects of the consultation process you were part of?

While there was general consensus on the inability of the courts to adopt a fair and non-discriminatory approach, everyone did not agree on the abolition of the death penalty. Some participants firmly believed that the state should retain the death penalty as a deterrent, to deal with the looming threat of terrorism and heinous offences, especially against women. However, innumerable studies and statistics support the view that there is no direct correlation between the death penalty and deterrence. Thus, it only serves a retributive purpose which, in my opinion, is not an acceptable justification for any punishment. In fact, the inept criminal justice system and the existing judicial and economic biases, which are further aggravated by inflamed public opinion, can hardly ensure the fair use of the death penalty. The provisions governing capital punishment cannot be reformed and therefore the punishment should be abolished.

Can the death penalty act as a serious deterrent against committing crimes?

The death penalty does not actually deter an individual from committing an offence. In fact, studies have shown that an individual is rarely aware of the legal implications of his acts. Additionally, the ambiguous application of the “rarest of the rare” principle further disables an individual from determining what offence would actually lead to a sentence of death and what would instead lead to life imprisonment. For any punishment to be an effective deterrence, it is important for the public to understand a clear relation between an offence and its punishment, only then can a person refrain from committing that crime.

Even statistics fail to support the theory of effective deterrence. For instance, while evaluating capital punishment in the context of murder, under Section 302 of the Indian Penal Code, about 10 people were executed between 1980 and 1990, but the incidence of murder increased from 22,149 to 35,045 during the same period. Similarly, during 1990-2000, even though eight people were executed, the incidence of murder increased from 35,045 to 37,399. However, during 2000-2010, only one person was executed and the incidence of murder decreased from 37,399 in 2000 to 33,335 in 2010.

Thus, there exists no direct correlation between capital punishment and deterrence and it has, in most cases, been reduced to serve a retributive agenda, especially when it comes to murder, where popular opinion calls for “an eye for an eye”.

Can executions by the state be free of political motivations?

It would be wrong to say that the imposition of the death penalty is free from any political motivations. After all, the final decision on mercy petitions or commuting a death sentence is taken by the political executive, which advises the President, who has the final say in deciding the execution of a death sentence. The decision is, therefore, bound to be influenced by popular public opinion and political calculation.

What about the margin of human error in judgments?

The Supreme Court has, on many occasions, reduced a death sentence to life imprisonment owing to an error on the part of the lower courts in either evaluating the evidence or considering relevant information. It is a known fact that the lower courts are not always vigilant in upholding the precedents of the Supreme Court, including the “rarest of the rare” principle. This is particularly evident from the fact that while more than 300 death sentences were awarded by the lower courts in the last eight years, only two people were actually executed. However, all death sentences have not been commuted. But it is important to note that the Supreme Court does not rely on the judgment of the lower courts in awarding a death sentence and takes into account the margin of human error.

Our existing criminal justice system leaves much room for errors and biases, especially because the system is created and implemented by humans. There is a possibility that the investigating agency is not able to collect sufficient and relevant evidence, the legal counsel is not competent enough to assess and defend his case, the judge is influenced by personal biases and media reports, and a lengthy criminal trial destroys the evidence. With such factors there can never be an error-free assessment; however, the margin of error may vary.

What would you prefer, abolition of the death penalty in toto or its practice with certain exceptions?

India adopted an exception-based approach after the Bachan Singh judgment in 1980, in which the Supreme Court stated the “rarest of the rare” doctrine. The purpose of the doctrine was to reduce the use of the death penalty to exceptional cases that involved heinous crimes. But this exception principle has introduced arbitrariness into the system. I don’t believe that another list of exceptions could successfully regulate the applicability of the sentence. There would always be new situations which would require reassessment of the rules and the precedents. Therefore, it is only fair to abolish the death penalty in toto, to ensure that an innocent or a reformed offender is not executed.

Amnesty, National Law University and several reports hold that the death penalty in India is arbitrary, discriminatory and disproportionate. What is your take on this?

The death penalty in India depends on variables such as the biases of the judiciary, arbitrariness of the executive, social biases, public outrage, economic status of the accused, and the quality of legal representation. These factors leave much room for an arbitrary and disproportionate application of the law governing capital punishment. There is no comprehensive parameter to ascertain whether a person has been rightfully executed.

Globally, an offence may attract the death penalty in one country but may not be a serious offence in another country. Crimes like treason and sedition, for instance, are often judged on a political basis. Yet, in some countries these attract the death penalty. So does apostasy in a number of Islamic states. Yet, such “crimes” would be seen as mere dissent in most democracies. The recent execution of eight convicts for drug-related offences in Indonesia is another instance. In India, the Supreme Court would not easily agree that a drug conviction falls within the purview of the “rarest of rare cases”.

Thus, it is important that we identify alternative forms of punishment and develop a suitable system for rehabilitating hardened criminals and ensuring that they can reintegrate into society as responsible citizens. This, of course, puts a greater onus on the government and lawmakers. But let us not take the easy way out by silencing the criminal forever.