It is strange that we are currently governed by a system that directly relies on the use of vastly differentiated standards of what makes the “rarest of rare”. The definition of the “rarest” is left to judges governed by personal viewpoints on what constitutes extreme rarity.
Capital punishment has shown itself to be ineffective in having any deterrence to criminals. Capital punishment is used by the State to placate its citizens by sending the message that it is getting rid of the criminal, completely. The citizenry don’t seem to have thought far enough to understand – or perhaps have ruminated over and accepted - that the responsibility of execution belongs to them individually.
The taxpayer pays for the execution of criminals governed by a system that did not have any deterrence on them in the first place.
The taxpayer has failed to consider even the inhumane method of execution: death by hanging. The focus in jurisdictions that practice capital punishment has been on finding less painful, or painless, methods of administration of death. Justice Bhagwati, the lone dissenter in Bachan Singh’s case, described in detail the method of execution of the death penalty which makes for harrowing reading.
The situation in India as it exists today is reliant upon the judiciary giving out the death penalty only in the rarest situations. The crime has to be of such repugnance that it can be classified as being beyond comprehension. The criminal, having committed such a crime, has lost all value to society and is beyond redemption.
It has, however, proved itself a highly contentious area of litigation. The biggest issue by far is the impossibility of standardisation of what constitutes a crime repugnant enough. It is left to the wisdom of the adjudicating authority to decide what crimes can be considered the rarest of the rare. The logical conclusion then is this: death must be awarded by courts in all cases that exceed the case that is the most probable in the “rarest of rare” category.
This has led to the discrepancies in the application of capital punishment. Crimes are looked at through subjective degrees of scrutiny. What may constitute an offence punishable by death in one case would not apply to the next.
Therefore, the focus in recent years has been on the lack of uniform application of the death penalty and the procedural aspects of death penalty litigation across the higher and lower judiciary. The focus has been augmented by calls for the development of standards and guidelines to govern the use of the death penalty.
Further, civil society has called for better treatment of convicts awarded the death penalty and on death row. This has shown itself in judgments passed by the Supreme Court in 2015 where it has focused not on the question of the constitutionality of the death penalty itself, but the question of the treatment given to such convicts awarded the death penalty in terms of mental and physical agony. The case of Shabnam v. Union of India focused on the right of condemned prisoners to die with dignity, and that the execution could not take could not take place in an arbitrary, hurried and secret manner.
In recent years, three executions have taken place. All three executions have been on convictions on terror and terror-related offences. It certainly appears that Supreme Court judges are fighting the mandatory imposition of capital punishment for the “rarest of the rare” cases. In most cases, the conviction made by the lower courts is upheld but the sentence of death commuted to life imprisonment. There is, therefore, a tendency among judges of the Supreme Court to impose a virtual moratorium on the death penalty, except in cases involving terrorism.
It is interesting to note the case of Anders Breivik. Breivik carried out the deadliest attack on Norwegian soil since the Second World War. In 2011, Breivik killed 77 people, most of them children.
Norway did not execute Breivik. Norway and Western Europe do not have capital punishment. It showed the maturity of the legal system, and of the progress of development of humanistic thought to a continent which had caused itself great injury over ferocious wars.
The issue of the use of the death penalty is one that has only one answer: we have to get rid of it, in its entirety. Beyond the problems in the correct execution of the doctrine of “rarest of the rare”, capital punishment itself has been the subject of criticism historically as well as contemporaneously on very basic grounds: that the State does not have the right to take away life.
Modern philosophical thought finds it repugnant to be party to the execution of individuals, whatever their crime. The viewpoint has been to try and reform the convict into a contributing member of society. Even if reform has been found to be impossible, modern philosophers such as Mohandas Gandhi, Fyodor Dostoevsky and Bertrand Russell have balked at the simple fact that capital punishment is a euphemism for legalized death.
For thinkers such as these, the focus has been on the influence of social psychology vis-à-vis the individual perspective. Capital punishment, in their view, would put the responsibility of execution of convicts on each citizen of their nation, making it a personal responsibility. Social psychology, on the other hand, tends to dilute the responsibility of the execution itself on the basis of the “greater good”.
One of the threads connecting thinkers such as the ones noted above are their dedicated tendencies towards pacifism, non-violence and forgiveness. It is these principles that India as a nation needs to practice. To the architect of the constitution, Dr. B.R. Ambedkar, capital punishment went against the principles of non-violence and the spirit of welfare on which the nation was formed.
In a global society witnessing the emergence of increasingly insular and repressive governments, India needs to show the path to non-violence and forgiveness. India has the resources, history and legal and philosophical thought to be able to move beyond what is an outdated method of punishment. All that is required today is political will and general consensus.
(The writer is an advocate)
(Main photo: Human rights activists protesting against the death penalty near India Gate, New Delhi)