Every hanging opens up a huge public debate on abolishing or retaining capital punishment in India. It throws up a plethora of reasons for the imposition of death penalty as well as for its continued existence or for its abolition. There are three schools of thought on this subject: those who vociferously support it; those who virulently oppose it and those who are ambivalent and choose one side or the other depending on whether they consider it punishment enough or not — depending on how heinous the crime seems to them. A reading of Oscar Wilde’s Ballad of Reading Gaol or watching a cleverly edited news channel documentary on death row prisoners can highlight the despair of the condemned persons and stir up further deliberations on capital punishment.
It is often reflections about the particular condemned individual that starts the debate and most of the rhetoric, whether from the political establishment or the media, confuses the average citizen about whether that person should be hanged or not. Various elements influence the debate that are inconsistent with the actual reasons. Unfortunately, most of the debate is also emotional and is rarely based on whether the imposition of the death penalty should be an act of judicial responsibility fulfilled by the State. While many Western countries have legally abolished capital punishment, there are also many countries where capital punishment exists in their legal procedural codes but they have not meted out capital punishment for a long time. In practice, it is considered to have been abolished.
The creation of the entity of the state had at its primary role the protection of its citizens. It was created with the primal need for the people to be subjects of a sovereign power whose duty it was to protect the people and ensure their well being. Thus it became incumbent upon a state to create a system of acceptable behaviour that later became rules and were codified by the State as laws. These not only dealt with how a citizen of that state should conduct himself but also how a state is bound to conduct itself for the benefit of its citizens. Statehood, therefore, does not inhibit itself to mere governance but stretches itself into protection of all the people who live within its territorial limit. It also has a responsibility towards its own people beyond its geographical territorial limits. The State is thus vested with the right to take the life of such people who threaten its existence, peace and the safety and security of its people. Thus a state is permitted to kill people, creating under its law the enforcement machinery for this purpose in the form of military, paramilitary, police and such other forces with specific powers in specific instances tasked to take life. It is in this same manner that a state creates the right to inflict capital punishment. In its duty to protect its citizens, a state can by due process of law require to take the life of those it deems as an existing threat or a possible future threat. However, this is not an unlimited power to be used at will. Thus it makes capital punishment not only acceptable but also a necessary duty imposed upon a state as part of its obligations for proper governance.
The argument for the pursuance of capital punishment is perfect if such argument is based on a just and fair judicial system bereft of human frailties. In reality, studies have shown that it is the marginalised, the discriminated against and the vulnerable who end up on death row more often than those with recourse to knowledge of law and its nuances. In an ideal situation where the state, the judicial process and the enforcement authorities are not dogged by human fallibility based on prejudices and pre-conceived notions, a fair system for justice can exist.
The other argument is that a state is not a sanctified entity; it is made up of people who govern and are governed. Private and social prejudices often play a role in societies. In most countries, a person brought before law who cannot afford a legal counsel is provided one by the state so that the accused has all means to defend him.
In reality, however, the legal incompetence or disinterest of the court-appointed legal officers works against the interests of the accused. In India, in most cases, the free legal aid system is not adept and efficient to the extent it should be, to protect the interests of the accused. It is therefore rather difficult to categorically reach the conclusion that there is no miscarriage of justice. However, these by themselves cannot be reason enough to abolish capital punishment in its entirety but should be reasons to strengthen the judicial system and to assuage fears that a state won’t impose capital punishment arbitrarily.
A state is bound by duty to ensure protection of all lives and not just the life of one individual. Retributive justice is an essential component of statehood. Often a weak argument is placed that crime does not stop due to the existence of laws that prescribe punishment. One cannot even begin to imagine the crimes that will be committed in the absence of laws!
Just as the laws that prescribe punishment for crimes deter potential criminals, capital punishment deters those who will act with impunity if it does not exist. Those who argue that retributive justice does not act as a deterrent fail to accept that the fear of death upon conviction does indeed deter potential offenders against violence directed towards the state and its people.
It is not argued that capital punishment ought to be used at all times but when all the appeals provided for clemency have been rejected because of the nature of the crime, capital punishment cannot be termed unnatural, unnecessary or barbaric. All human beings do not adhere to natural justice or the higher principles of good and evil. It becomes mandatory for a state to impose punishment on those who disregard sanctity of human life.
In the argument for abolition of capital punishment, it is important to remember that clemency is the prerogative of the state. It is not an unassailable right of the accused to demand compassion. In cases where high treason has been committed against the state and in “rarest of the rarest” cases, capital punishment has been justified. The Supreme Court of India has been extremely clear that exceptional circumstances demand capital punishment. It is rather strange then to note that jurists, social activists and others seem appalled when it is ordered and when clemency petitions are rejected by the judiciary and the executive. No state can and should tolerate treason, subversion, sedition or any such act that threatens security or the state’s territorial integrity. No such act should go unpunished by which the lives of its people are endangered. A State is deemed weak if it cannot protect its people and if it cannot protect them from internal enemies.
The writer is an expert in international law and a founding member of Centre for Security Analysis.