Off With His Head?

The strident demand for the death penalty for Sanjoy Roy, who raped and murdered an on-duty doctor at a premier medical college in Kolkata in August last year has gained momentum after the trial judge pronounced Roy guilty and sent him to jail for the rest of his life.

The Chief Minister has no less expressed her disappointment and promised an appeal against it, demanding capital punishment as the only acceptable outcome of the trial.

Those who have closely followed the case now do not doubt that the incident was gruesome and exposed a more sinister and long-festering criminal problem in the corridors of that institution. It has also unambiguously demonstrated the abdication of responsibility by the medical college administration, the police, and the political leadership. It is more than evident that a crime of such magnitude could not have taken place without the connivance of many others, and that they are as criminally complicit as the convict.

But we are no closer to learning about the motive of the murder. Why did Roy, who had the run of the place as per the media, suddenly decide to do what he did? He worked as a civic volunteer for the Kolkata police.The failure to establish the motive of the crime – who benefits from it – has lent the case a mystery that is yet to be resolved.

And then more crucially, why did the government machinery, police and the Central Bureau of Investigation not probe deeply the many allegations of impropriety and abuse of power that had surfaced in the aftermath of this dreadful incident?

Under such circumstances, a lot more is required to be investigated, which may alter our perception of the crime, including its beneficiaries and associations. These may have weighed heavily on the judge's mind as he wrote his sentence. Can justice be served by imposing the death penalty when such doubts linger? The good judge may have very well said that when things are so occluded, can we be so sure in taking another life?

What this judgement has raked up is the never-ending debate about death penalty as ‘justice’. To be just, according to the supporters of capital punishment is to singularly follow the doctrine of ‘tooth for a tooth’ and ‘an eye for an eye’. This is the doctrine that says that retribution is justice. The significance of this understanding of justice lies in its utter simplicity where everyone gets to play judge and jury. And thereby bathe in the comfort of a moral wash through the invocation of a collective conscience.

Let me for a moment take you to another time and place, when there was no doubt that the best definition of justice in cases where the collective conscience had been hurt, was retribution.

In 1757 2nd of March, Michel Foucault in his book Discipline and Punish writes, Damiens the regicide was to make the ‘amende honorable’ before the main door of the Church of Paris. He was to be brought from the prison on a cart wearing only his shirt and holding a burning wax torch weighing two pounds and then to Place de Gréve, where on a scaffold his flesh would be torn from his breasts, arms, thighs and calves with red hot pincers. His right arm would hold the knife with which he committed the crime, and he would be burnt with sulphur, and where the flesh would be torn asunder, molten lead, burning oil resin etc poured and his remains drawn and quartered by four horses.

Foucault gives an even more graphic description of how he was tortured but I refrain here from repeating the gory details, in the hope that we are now sufficiently aware of justice as retribution.

We have moved away from torture as a spectacle as well as seeing it as related to justice. Now our executions are sober affairs, confined to the campus of the jail, a ‘humanisation’ of the idea of retribution. Some may even be bold enough to say that this humanisation is the reform that many thinkers were talking about when they proposed, as Emile Durkheim the French sociologist did, that the measure of a modern society is reflected in the law being overtly ‘restitutive’.

Those who are vocal today on the question of capital punishment include the middle classes, who would on most matters like to be seen as children of modernity. The paradox escapes them for they can take refuge in the oft-repeated doctrine that capital punishment is a ‘deterrence’. But is it?

As per data available, at the end of 2023, India had 561 prisoners living under a death sentence. In 2016 the number of prisoners sentenced to death was 400. Thus, over eight years the number increased by 161 cases. If the deterrence argument had any purchase, then it would be reasonable to assume that over the eight years, the number of death row prisoners would have declined. That it has not, casts more than a shadow of doubt on the efficacy of the deterrence theory.

It would not be unreasonable to conclude that the reason courts keep on handing out capital punishment lies elsewhere. Will be it unreasonable to conclude that deep in the subconscious the desire to exact revenge and see revenge as ‘justice’ is the driving force?

The ghost of Damien’s punishment repeated ad nauseam across the globe has left a strong imprint on our collective conscience. Prejudice and unfounded opinion rather than reasoning trumps even the most accomplished intellects among us.

The second argument that one must make is politico-ethical. The state as an entity is sui generis insofar as it holds the monopoly of violence. This violence of the state is the residue of the personal violence that individuals have voluntarily surrendered to the state if one must believe Thomas Hobbes, for he warns us that the alternative to a Leviathan, a strong sovereign, is a life that is extremely poor, nasty and short.

The question that we may raise is this – has the state exercised for us the violence that we have entrusted to it as citizens justly, what the German sociologist Max Weber termed ‘legitimate violence’? The answer to this question is too complex to be answered here and now, but we shall not be far off if we say that the state has often failed us on this score more times than we care to count.

The third argument is what I would call the ‘immediate political’. Why is the West Bengal Chief Minister, whose police betrayed the victim and her family on many counts and is still not completely out of the woods when it comes to deep suspicion, so desperate to secure a death sentence?

The answer may lie in our electoral system and how we have reduced popular democracy to populist democracy. Having been at the receiving end of massive protests and restless discontent since the incident came to light, Mamata Banerjee sees this demand for capital punishment as a way to douse our collective anger, contain the demand to investigate the system that was put in place in the corridors of the health mandarins and overall cover up for the abysmal condition of what goes around in the name of public health care.

If justice is hostage to such political expedients, are we still to pursue the matter of capital punishment as the most reasoned outcome of judicial, moral and ethical reasoning?

Before I conclude let me flag another critical piece of information – there were in the period that I mentioned above 36 acquittals at the High Courts and six in the Supreme Court. In the US where several states still impose the death penalty, data shows that for every 8 persons executed in that country, one person on death row was exonerated. Prosecutorial misconduct was one of the key reasons for reversals, a matter that we cannot rule out in India in addition to the concerns that I flagged above.

It is time that we took our idea of justice as restitution more seriously and convinced our opinion leaders including the politicians, that a more concerted look at the criminal justice system and accompanying reforms are better policy steps than playing to our baser instincts.

Surajit C Mukhopadhyay is Dean of the School of Social Sciences, Sister Nivedita University, Kolkata. The views expressed here are the writer’s own.