By Ashna D
After making innumerable attempts to postpone their execution, Mukesh Singh, Pawan Gupta, Vinay Sharma and Akshay Kumar Singh, the four convicts in the Nirbhaya gang-rape case have been hanged to death on 20th March 2020. In recent years, there has been a heightened support in favour of imposing the capital punishment for heinous sexual offences. With public resentment growing against the prolonging of these executions, we seem to have forgotten the inherent unfairness that accompanies the administration of the death penalty in our country.
On The Philosophy Of Punishment
A German philosopher Friedrich Nietzsche in the early 19th century, called for a revaluation of our notion of inflicting pain as a form of punishment. He criticised the modern institution of punishment for impeding rather than encouraging humans from flourishing. In his book The Dawn of Day, first published in 1881, he urges society to look at punishment from the perspective of rehabilitation of the criminal and to see it as a means of reform. Through his work, he persuaded individuals to take all efforts to restore to the criminal his courage and freedom, indicate to him how he can make good the harm done, and while doing so, show him the greatest consideration.
Capital punishment is a remnant of our colonial past, a penal system that was considerably influenced by the retributive theory of punishment. However, following the adoption of human rights instruments such as the 1929 Geneva Convention, the 1948 Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1976 and the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT) in 1987, most countries chose to espouse a “human rights approach” in their criminal statutes, giving equal importance to the rights of accused persons. In this context, despite nearly two-thirds of the world have chosen to abolish the death penalty either in law or practice, India continues to be a ‘retentionist’ nation, regressively justifying and even necessitating this disproportionate form of punishment. This idea stems from a view that punishment is an inherently retributive concept that defines the criminal only in terms of the barbarity of his crime.
In a 2015 Lok Sabha Secretariat Report on ‘Capital Punishment in India’, the government defended the retention of the death penalty arguing that by keeping such convicts alive, society is endangering the lives of numerous other potential victims of crime. To do so according to the government was morally reprehensible. This argument is fundamentally flawed for three reasons. First, such a claim fails to account for the glaringly insufficient empirical and scientific data on the application and deterring effects of the death penalty in India. Second, it does not tell us why life imprisonment is not a good enough alternative. Third, by ‘othering’ persons who commit a crime, the government is not only evading its responsibility of addressing the root causes of crime but is also engendering a false belief in society that by killing the criminal we are eradicating sexual violence. It conveniently ignores the many socio-economic and cultural factors that shape crime, such as patriarchal attitudes, repressed sexual tendencies, lack of education, unemployment, caste-based discrimination and so on.
It is only trite logic that an individual is deterred not just by the gravity of punishment, but also by its certainty. This was reflected in the Justice J.S Verma Committee Report and the Law Commission’s Report on the Death Penalty which recommended life sentence as an adequate punishment even for the ‘rarest of the rare’ rape cases. Yet, the thirst for revenge makes us perceive the act of causing pain to the criminal as a means of alleviating the suffering of the victim. It is pushing us to wrongly believe that protecting the rights of victims of crime by necessary implication, involves taking away the rights of the accused. Creating an effective victim rehabilitation program does not and should not mean that we sidestep prison reform.
Rethinking Reformation
One would argue that the very idea of reformation is a futile exercise that has failed to fulfil its objective. However, the solution is not to nullify the opportunity to reform itself, but to enhance the process of reformation. Studies indicate that longer and harsher sentences have severe impacts on the personalities of prisoners, thus making their reintegration into society even more difficult. Data collected from Indian prisons shows that convicts are housed in overcrowded prisons with inadequate prison staff and are often tortured. Their physical and mental health conditions are neglected, and prison rules flagrantly violated. Today, the defects in our criminal justice system silently permit law enforcement agencies and public rhetoric to dangerously swaying the adjudication process. Many undertrials rot in jail, never to see the light of day. This was highlighted by the Supreme Court itself in Thana Singh v. Central Bureau of Narcotics when the Court opined, “The laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulations of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity”.
Practices across different jurisdictions point out that the prisons that function least like prisons are most effective in reducing crime rates. Such prisons prioritize human relationships, decency and facilitate therapeutic interventions such as employment and education. In addition to this, delayed registrations of FIRs, gender-bias, custodial torture, political influence on executive actions, delays in convictions and disposal of cases, lack of accurate crime statistics, and inadequate victim-friendly courts, exacerbate the problem. In such circumstances, are we reasonable in expecting prisoners to tread the path of reform?
Capital Punishment Is Not The Solution
In 2017, when the Supreme Court confirmed the death sentence for the four convicts in the Nirbhaya gang-rape case, it was held that a punishment lesser than death would “shake the confidence of the public”. By indirectly authorizing “collective conscience”, to wriggle its way into the sentencing process, the Court failed to analyse whether the alternative option had been unquestionably foreclosed.
Death row inmates are often from marginalised communities with little to no access to the requisite standard of legal aid. Authorities turn a blind eye to their mental health conditions, and poorly paid legal aid lawyers lack the incentive to explore the best legal options. In the absence of quality legal representation, we are denying them their right to a fair trial. We are also forgetting that judges, even when playing the role of demigods administering justice, are fallible creatures, especially in the absence of a uniform standard for the application of capital punishment. It was for this very reason that Justice Kurian Joseph vehemently opposed the punishment of the death penalty in his decision in Chhannu Lal Verma v. the State of Chhattisgarh . Even the last resort of filing a mercy petition is a process plagued with individual subjectivities and beliefs of Presidents as indicated by the acceptance and rejection patterns of these petitions over the years. In such murky waters, what gives society the power to end a life collectively, when it is crime to do so individually? As Gopalkrishna Gandhi argues, the answer lies perhaps in the death penalty being perceived as a symbol of a state’s political strength.
By vociferously and unthinkingly calling for the death penalty, we are distancing ourselves from the principles of tolerance and mercy; principles our forefathers strongly advocated. Abolishing the death penalty would require us to look past the systematised, standardised and stigmatised narratives surrounding death row inmates. In this age of misinformation and majoritarianism, we must not let ourselves be bogged down by revengeful rhetoric. A criminal is a reflection of a society that has failed him. If we are a truly egalitarian society, we cannot continue to shun death row inmates as individuals unworthy of respect and human dignity. Looking beyond retribution is not to ask society to forgive the criminal; it is only to give him a chance to correct his ways by moulding a system that facilitates rehabilitation. Concomitantly, it is an opportunity for us to see the criminal not as an outsider, but as part of a system; one that is crying for urgent reform.
[The author is a third-year law student at the National University of Advanced Legal Studies, Kochi.]
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