Should we Abolish the Death Penalty?

(This book review was first published by Pragati on 22nd May, 2018.)

India is witnessing a renewed interest in debates about the death penalty after its central government introduced an ordinance prescribing this most stringent of punishments for the crime of raping a girl below the age of 12 years. While it has been welcomed by the Delhi Commission for Women, which was actively campaigning for a strong legal measure in the wake of the Kathua and Unnao rape cases, the move has been criticized by other human rights organizations and civil society actors. There is a divide between those who think that fear of the death penalty will serve as deterrent to more crimes against women, and those who believe that the ordinance is a hasty, populist response from a government trying to pacify its critics rather than addressing the structural violence that perpetuates rape culture in our society.

I was on Delhi’s Parliament Street on April 15, 2018, the day when anti-rape protestors from various sections of society got out on the streets to demand punitive action against the men who had raped the girls in Kathua and Unnao. There was anger in the air, with some of those gathered demanding that the rapists be castrated or hung for their abhorrent crimes. Others reached out to them, explaining that the death penalty has not been effective in reducing crime against women and children, and that a demand of this nature would undo the decades of work put in by feminist movements to campaign against capital punishment, which they see as an expression of the state embodying toxic masculinity. The Justice Verma Committee Report published in January 2013, shortly after the ‘Nirbhaya’ rape case in Delhi, rejected the death penalty even in the rarest of rare rape cases but the current government had no qualms in bypassing those recommendations.

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(Image: Amazon)

In this context, it is rewarding to read Gopalkrishna Gandhi’s book Abolishing the Death Penalty (2016), which is equal-parts philosophical, poetic and political. In a little over a hundred pages, the author packs in a lifetime of erudition and centuries of history to educate the reader in a subject that he has clearly spent a lot of time researching. Though he is opposed to the death penalty, Gandhi makes an effort to understand the arguments made in favour of it. This approach makes his own writing more powerful. You get to see that his stance is not purely emotional but grounded in a thoughtful consideration of legal precedents, crime research, literary texts and moral dilemmas, as well as the insecurity of nation states, the shortcomings of criminal justice systems, and new forms of violent extremism. His writing style is that of a scholar rather than an activist.

Gandhi’s book forces you to think about an individual’s right to life. Is it sacred and absolute? To what extent does it depend upon the retributive instincts of bloodthirsty mobs and opportunistic politicians? Is such a right even possible when the authority of God is replaced by the authority of the state? These are questions for dictatorships as well as democracies. Both political systems have mechanisms to snatch away the right to life though the systems themselves do not see eye to eye on most matters. Gandhi writes:

The executioner-state is about power, supreme power. In the restraining of crime, the use of power, of strength, valid power or mandated strength, is unavoidable. But strength is one thing, brute strength is another. Mandated strength is dispassionate about what it does. Brute strength enjoys what it does, including and especially, killing.

When I was about to visit Saudi Arabia for the UNESCO NGO Forum last summer, many friends and colleagues expressed their displeasure because I was going to a country that punishes criminals using methods such as beheading, crucifixion and stoning. They might have thought differently had they known that the United States of America, self-proclaimed leader of the free world, has not abolished the death penalty either. There is, however, a big difference in the number of people executed by Saudi Arabia and USA. In 2015, China, Iran, Pakistan, Saudi Arabia and USA were the top five executing or retentionist countries, according to an Amnesty International report quoted in the book. I found it intriguing that treason, rape, murder and terrorism are not the only crimes that can lead to a death penalty in various countries of the world. Adultery, sodomy, apostasy, blasphemy and use of drugs can also bring upon this consequence.

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Gopalkrishna Gandhi (Image: India Today)

Gandhi’s book will take you on a fascinating journey through famous cases of people who were killed by the state — Socrates, Jesus Christ, Bhagat Singh, Guru Arjan Dev, Sarmad Kashani, Nathuram Godse, Satwant Singh, Ajmal Kasab, Afzal Guru, Yakub Memon, and many others. None of these people were given the death penalty for raping a minor. They were perceived as threats to the state though the specifics of each case were vastly different — from undermining majoritarian religious beliefs to engaging in seditious acts, from assassinating a public figure of international significance to carrying out terrorist activities, and more. Far from being thought of as criminals, some of them are now considered heroes or martyrs. Does the death penalty really serve as a deterrent to suicide bombers and revolutionaries who have made up their mind to die for a cause? Perhaps not.

Though India is no longer ruled by colonial masters fearing an uprising of the natives, the death penalty continues to be a tool of brute power in the hands of the state. It is meant to be awarded in the rarest of rare cases. However, no government has shown the political will to abolish it. The state is much larger than the lone individual but it is paranoid about treason. Here is a question Gandhi does not pose but it is worth thinking about: What does it mean to wage war against the state under a government which is arrogant enough to think that criticism of the Prime Minister and his policies amounts to vilification of Bharat Mata? In this time of fake news and media trials, it is not difficult to manufacture evidence against citizens who stick their neck out, and fight for civil liberties. Anyone who is not in the good books of the state can be called ‘anti-national’. Are we far from a day when the most fierce among these dissenters will be given the death penalty, and social media timelines will be filled with murderous applause? I am sorry for being so morbid but you must blame it on the subject being discussed here.

One of the chief arguments against the death penalty is its irreversibility. Gandhi refers to an incident from July 2012 when 14 former judges approached the President of India with a letter stating that 13 people had been wrongly sentenced to death in seven cases. They requested him to commute these death sentences to life sentences under Article 72 of the Indian Constitution. Unfortunately, the President did not respond though the judges’ letter contained a reference to another shocking instance of miscarriage of justice. Ravji Rao and Surja Ram, both wrongly sentenced prisoners, were executed in 1996 and 1997 respectively. The Supreme Court admitted that there was an error of judgement in these cases but the admission came too late. They had already been killed by the state. As Gandhi remarks in his introduction to the book, “When a man kills, he breaks the law. When the state punishes by death, it upholds the law.”

This book also discusses, at great length, the way in which the power to pardon has been used in India. What I found most interesting were the approaches adopted by Governor General Chakravarti Rajagopalachari and President K R Narayanan. The former was known for rejecting most of the mercy petitions he received. He once received such a petition from the relatives of Mohandas Gandhi’s murderer Godse, which was backed by the victim’s sons on the ground that the ‘Mahatma’ would not have approved of the death penalty. Apparently, Rajagopalachari was not impressed by this line of reasoning. The author writes, “Rajagopalachari is said to have observed that the law did not recognize Mahatmas, and pardoning a murderer because his victim was a Mahatma would be unfair to those who had been hanged for killing lesser mortals.” Narayanan, on the other hand, “explored the farthest limits of the case’s ‘rare’-ness” because he “held hanging to have in it that touch of murder that made it twin to the crime.”

The power to pardon hints at the subjective element in serving justice. It is quite likely that the same mercy petition would meet with a different fate if received by a different President. Though this power is meant to be a safeguard against wrongful use of the death penalty, and an opportunity to make sure that only the rarest of cases are awarded capital punishment, it is not unaffected by the ideology of the government at the centre. Eventually, the President is only a ceremonial head with no absolute powers, expected to act in accordance with the advice of the Council of Ministers. It is too early to comment on how President Ram Nath Kovind will end up using the power to pardon. However, it will be interesting to wait and watch, especially because he is the one who signed the executive order to bring the recent ordinance into effect.

In August 2015, the Law Commission of India published an exhaustive report on the death penalty. Towards the end of that report, P K Malhotra, Ex-officio Member of the Commission, remarks, “While I agree that abolition of the death penalty is an eventual goal, I am of the considered view that the time is not yet ripe in our country to abolish it at this juncture.” While reading Gandhi’s book, you wonder when the time might be ripe, and who will take the lead. Despite the eternal optimist I am, I think that time will not come anytime in the near future. Retention of the death penalty enables the state to preserve its macho, zero-tolerance image in the global community of nation states, and also consolidate its hold on the domestic front over some of its most marginalized and vulnerable citizens. There is little incentive to give away this power. The state is far from being a benevolent entity.

What surprised me in Gandhi’s book was his discussion of extra-judicial killings in the same breath as the death penalty. The former are carried out by state functionaries but without the authorization of a court judgement. Living in a country with a democratically elected government does not necessarily ensure rule of law. Citizens are vulnerable to abuse of power by police officers, the armed forces and intelligence agencies who can kill them in ‘encounters’, and get away without justice being served in the matter. This fear is heightened in areas with a history of armed resistance directed towards state functionaries — Kashmir, Punjab, Nagaland, Jharkhand, Manipur, etc.

Gandhi also compels you to think about the living conditions of prisoners on death row. Many of them spend years in jail before they meet their end due to hanging, electrocution, or a lethal injection. This is an excruciating time from the point of view of hygiene, medical care and mental health. The book makes a case for prison reform on humanitarian grounds but it does not take one step further to explore restorative justice. That would have been quite in keeping with Gandhi’s stance: “Why should the biologically innate and theologically inviolate right to life be invaded by the state to punish crime, especially the crime of taking life? Does it lack the intelligence or imagination to devise another methodology, more transformative and therefore more radical?”

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