Death Penalty – Crime or Punishment?

Buried deep in the avalanche of infotainment about Yeddyurappa's histrionics, Ashok Chavan’s shok, A.Raja’s largesse that caused heartburn to the praja, Bigg Boss 4, daily updates regarding the number of teams playing in the next edition of IPL, and Suresh Kalmadi’s evergreen saga of games with the commoner’s wealth, a news items that would have otherwise raised hue and cry escaped our collective notice. India is now a member of a select 38 member club that still continues to insist on the necessity of death penalty. Some other members of this ignominious club are, don’t hold your breath, Saudi Arabia, China, USA and Iran. Some select club, right….

I always had an issue with the death penalty. Only a hypocrite nation could give its assent to death penalty and refuse its consent when it comes to euthanasia. A person wanting to live is denied life, and a person inviting death is forced to live. Life is the most personal of anyone’s possessions; yet isn’t it ridiculous that on one hand the state is allowed to grab at the most precious of my possession take my life while on the other hand I am expressly forbidden from taking it myself. If murder by an individual is a crime, and lynching by a mob is a crime, I do not understand how execution condoned by the state is not a crime.

Many proponents of the death penalty point out at the “rarest of the rare clause”; death by hanging in India is given out only in the rarest of rare circumstance. Now would someone tell me what is a rarest of rare circumstance? How can anyone choose between two murderers and assigns one death and the other, life imprisonment? And what defines whether the circumstances were common, uncommon, rare or “rarest of rare”? My definition of rarest of rare is different from yours, and yours is different from a hundred others. In a nation where the judgments are reversed at every level of hierarchy of the judiciary and new precedents are established by the hour, the “rarest of the rare” definition could change one second after the execution.

And then you have the systemic flaws. Any system, by definition, is prone to faults, more so when the system comprises of humans using their judgment. In a judicial system that has seen impeachment of judges due to lack of probity, transfers because of accusations of corruption and judicial impropriety, can we be so utterly confident of a judicial finding that we dare to snuff out a life? And Presidential pardon remains the cherry on this cake. What is implied by it – that the first citizen has intelligence superior to the collective intelligence of the entire legal fraternity? I am not out to spread calumny, but what if the President is hand in glove with the perpetuator? Isn’t it better to have the life sentence as the ultimate punishment rather than have the death sentence commuted to life, quashing the hopes of the victim’s families that bay for the “severest punishment”?

There is also the recurring issue of the duration between sentence and actual execution. With the party in power queasy to carry out the imposed sentence due to fear of alienating some constituents of its vote bank, the sentence imposed gets postponed indefinitely and the issue assumes a political hue instead of being a strictly legal/law and order issue. Consider the case of Afzal Guru. The apex court awarded him the death penalty 2004 for his involvement, alleged or otherwise, in the Indian Parliament attack. It’s been close to six years now and with the UPA government dilly-dallying, BJP on the war-foot every once in a while and the Govt. in Srinagar clarifying that it cannot and will not take responsibility of any events that would take place if the order is carried, Afzal Guru would die a martyr rather than criminal, when executed.

In most of the debates on this topic, there is one aspect of death sentence that is almost never discussed – the effect it has on those that have to perform this distasteful task, those that are directly involved in the execution. The courts’ view of the case is clinical, the medias’ sensational, the publics’ vengeful. It is only the executioner who would actually feel the weight of snuffing out a life. Imagine the guilt and remorse that would rack the prison officials, the guards, the mandatory witnesses, and the executioner. Does the executioner’s need to feed and clothe himself and his family give the state the right to abuse his conscience?

Death penalty is an act of final retribution, retribution of the state, of the society and of the victims and their families. But what if the so called perpetuator has been wrongly accused, is actually an innocent person; an individual whose ill-luck had him at the wrong place at the wrong time? What if the innocence is discovered and he is exonerated just seconds after the execution? Can the state give back life? As Gandalf states in Lord Of The Rings, “Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment. For even the very wise cannot see all ends.”

Death as a penalty must be banned because it is cruel, an act of vengeance that satisfies society’s craving for revenge. It must be banned because it cannot be undone; because it is no more or no less effective than other forms of punishment/correction, if it were so, there should have been no crimes after the first hanging. It must be banned because no person, court or jury is infallible; because the “rarest of rare” circumstances are subjective. It must be banned because life cannot be given once its taken away and those who cannot give must not take.