Saturday, September 14, 2013

what is wrong with the death penalty? #delhigangrape

I have read many people commenting on the social media about the gang-rape verdict today. Many people, people I admire and whose ideas I find resonance with have shown a lot of emotions ranging from happiness, relief, downright celebration and the like. Since last some days I had been deliberating on the matter, especially after I heard some otherwise non-violent, sensitive, rational, thoughtful people discuss the issue. Some of them women, some men - those not used to giving in to populist emotions or beliefs. But this case turned the tables. It reminded me how academics who did not support torture under all circumstances started to support it after the 9/11 attacks. But more on that in some other post.

Having listened to some of my friends, I could not any more deny that their arguments carried an honest emotion, it also carried anger, pain and helplessness on their part. At times I was at a loss of words because what counter-argument can you possibly give where it is being continually invoked that an innocent life was brutally raped, tortured and left to die by these men who are now sentenced to death? The collective hurt of these people was palpable. As if personified, it said that something needed to be done, that they want to see something being done.

As expected, all the four accused have been sentenced to death by the lower court, by terming it the rarest of rare cases. In addition to the other offences of rape, kidnapping and torture - the act of murder under S 302 IPC in this case singularly also attracted the highest punishment. To challenge myself and to see if my belief truly holds ground, I questioned my deep set rejection of the death penalty. For a day or two preceding the verdict, I avoided any conversation on it and awaited the judgment and tried to accept the upcoming verdict as ‘justice’. I tried to tell myself that perhaps, perhaps there are those cases which could trump the abolitionist argument that there is something intrinsically wrong with the capital punishment.

I do not argue that the rapists in this case should be shown any leniency; I do not think there is any circumstance under which this horrific act should get reduced to a statistic or an unfortunate incident. I have no cause to have any respect or sympathy for the convicts or the desire to see them out of prison. Yet I continue to believe that capital punishment is not a solution but a violent response. The legal reform, the behavioral change that should have accompanied such rage is nowhere to be seen. That what is intrinsically wrong with giving the State a right to take life gets clearer. That capital punishment legitimizes the act of killing at the hands of a state - something that the law seeks to discourage and repress.

Apart from the intrinsic wrong argument which challenges our sovereignty and hands it over to the hangman, the media and that what catches popular fancy, capital punishment serves no purpose, except perhaps that of quenching the "collective conscience" of the people. This collective conscience is a vague term which smacks of majoritism. It promotes the notion that if the popular media (which is definitely not conscientious) and the society (which is mostly urban youth) creates enough mayhem, certain people - convicts - may be executed by the State. Not only does one find it discriminatory but also arbitrary, the discretion of a judge is involved in a matter as irrevocable as death and not just in quantum of punishment,

The second argument covers the deterrent aspect. We are bound to think, we like to think and our common sense agrees with us that where there would be death penalty there would be a stronger fear. Then why is it that in countries where there is a moratorium on the death penalty there is lesser crime since such moratorium was brought into effect? Capital Punishment has no more a deterrent effect than life sentence does. Scores of studies from around the world have proved this and one is not only talking of the so-called developed world, where the ground reality may be different than ours. Besides, the idea of taking away life is barbaric. In short it gives a message that we are a violent society and we collectively want to be violent. That justice for us is retributive and that is what gives us satisfaction. Then how are we to ever convict and punish a man/woman who takes the life of the murderer of his/her family members? Why shouldn’t retributive justice pardon him or her just as it is sending these men to the gallows? It doesn’t, because justice must not be seen with a retributive lens, thereby executing people, but with legal reforms, sensitization, dialogue among policy makers and better policing. Needless to say harsh punishment should be meted out to the convicts but not the death penalty – because by nature it causes the irrevocable act of killing and collectively makes us a violent people.

Within the moderate group, many have resorted to cheer for the verdict by calling the convicts less than human. But by brandishing them as non-humans or less than human, a fiction is being concocted to justify the death penalty ‘this once’. They are not any less human, even as they committed crimes which are extreme in nature. Not in the crime they committed and not in the punishment they would and should go through. Because when one calls them less than human - it opens up another fictional possibility that they should/could be given a leeway, an exception stands to be created. It thus becomes important not to justify one’s stand on the death penalty in grounds of the convicts being non humans. To be for or against capital punishment is one thing, but to create a fiction as justification for hanging people is a fallacy.


When one deliberates on it from the point of view of the young girl and her family, one sees these four convicts as human beings who have stooped down to a level which is unimaginable, caused the girl pain which most of us shudder to think about. It is then understandable why there must be scores supporting the death penalty. Then one tries stepping back a little. Retreat and see the society from a bit of a distance. One sees the media, the social structure, the men and the women, the placard bearing youth and "hang the rapists" written on their banners. One also watches the four men being hanged to death – 19, 20, 26 and 28 years old. And then you realize that life went on, more women continue to get raped, inside their homes, within their marriage and on the streets. What remains is a message such verdict gives. The message that the State holds the ultimate power to take away life, thereby undermining our own sovereignty - allowing for the idea to exist that 'life' could be for the State to take.

Could it be that in India it would have a deterrent effect while in other countries it might not? Is the abolitionist movement one of those Western ideas that some humanrightswallahs have adopted without understanding the socio-economic-political reality of a country? I do not think so. Mistaking this as a victory for the 'struggle', the morchas and candle-light vigils could be missing the point. For if it were a victory, then why is it that not every rape post this one made for the headlines and created a furore? To borrow from a friend, "Why is it that only the crimes towards our own class boil our blood?" Collective angst aside, the fact that most people from the affluent class get away from the capital punishment while those at the lowest end of the periphery get the death row cannot be ignored.

There is no way, under no circumstance that an execution, however heinous a crime may have been, calls for celebration the way it is being seen since yesterday. The loss of the young girl's life has shamed us, violent and celebratory response to the verdict has only lowered us further.