| The gallows of the torture chamber, Abu Gharib prison, Baghdad
The law commission, headed by the judge, M. Jagannadha Rao, has decided to take a fresh look at the method of implementing capital punishment in India. A sizeable section of the proponents of death penalty feels that “death by hanging”, which is the statutory method in India, should be replaced by a more “humane” form of meting out justice. Carrying out the decree with the help of a lethal injection, which ensures a quick and painless death, seems to be the more favoured option at the moment.
The debate further intensified after Mohammed Afzal, a Jaish-e-Mohammed militant found guilty in the attack on the Indian Parliament, appealed to the Delhi high court that the existing mode of capital punishment in India should be replaced with a less harsh method of execution. Death by lethal injection involves prolonged intravenous injection of a lethal quantity of three different drugs causing death within nine to fifteen minutes without causing any pain or mutilation.
This method seems gentler when compared to certain other practices. In China, a convict is shot to death after the cost of the bullet has been recovered from him, while in west Asia, death by stoning or beheading is not uncommon.
However, the law commission as well as the supporters of this motion seem to be missing the point that those against capital punishment constantly strive to drive home. These latter arguments are various and nuanced, but the core is more or less similar.
According to these arguments, the very foundation of a liberal society is based on certain individual rights, some of which are inviolable. The right to live is the most important of these. Without it, the very existence of social order, liberal or otherwise, would be at peril. The state, which guarantees the protection of the individual’s basic rights, violates one of the premises of its existence by favouring capital punishment. The moment it holds a licence to kill, the state forfeits its claim to be a legitimate agent of social control.
This is a view that has always been debated, and now the world is discussing it again. So the question for India should be whether there should be capital punishment at all, not whether its modes can be “humanized”. We have to think twice before allowing the Indian state to continue with its deadly licence.
It is necessary to examine whether there is an embedded element of vengeance at the heart of justice. These are old questions, but they must be asked again. Can we take away someone’s right to exist' And can we ever “humanize” death'
Michael Foucault, in Discipline and Punish, traces the gradual humanization of the methods of punishment with the rise of modernity. Earlier, the human body was the object on which conformity was imposed by the state. Torture was a public spectacle, crowds thronged to witness the gory spectacle of a hapless victim undergoing the process of mutilation.
Taking the cue from Foucault’s argument, it is possible to deduce that as time passes and the sense of advancement grows, forms of punishment will continue to be refined and humanized further. Theoretically speaking, the death penalty may even cease to exist. Simultaneously, other mechanisms would evolve, to promote social control. The mind, rather than the body, is now increasingly becoming the object of state control.
This form of control, though, acts as a greater deterrent to deviance than capital punishment, as witnessed in certain European countries, Canada, Mexico and some other central and south American societies. The debate over such forms of control, again, suggests that it is difficult to prefer one to the other.
All said and done, the problem is in many ways an intractable one. Guaranteeing the safety of law-abiding citizens who are threatened by deviants is of paramount importance for the state.
Is sending the criminal to the gallows a solution' But a crime-free society is an utopian dream, while controlling crime is a necessity. For this purpose, ways of humanizing the face of justice rather than the method of execution need to be considered. Working out likely options on the basis of an ideology that shuns capital punishment may provide us with a starting point.
The idea that the general deterrence effect of the death penalty is strong enough to reduce criminality is flawed. Has the death penalty served its purpose in Indian society' According to the National Crime Records Bureau, cognizable offences under the Indian penal code rose by one per cent in the year 1996 while the percentage of violent crime dropped by a similar margin in the same time period. There has not been any significant change in India’s crime graph in the last six years.
Significantly, the latest figures released in Britain — where capital punishment has been done away with as in most countries of Europe — show that the national crime rate has fallen by 0.2 per cent.
A change of attitude is needed. Punishing crime after allowing it to take shape— and on some occasions nursing its existence through covert measures — is not of much use. The real deterrent to crime is reformation of the society, not capital punishment.
Creating a database of the mental health of the population, identifying and addressing the possible catalysts of deviance, strengthening education, and counselling and rehabilitation of criminals can be credible measures in containing the forces that generate such social pathologies. Why kill an individual when it may be possible to redirect the processes that create a criminal'
Moreover, under the Indian law, a man on death row is allowed “endless” appeals. The assassins of Indira Gandhi were hanged six years after the death penalty was awarded them. And to avoid arbitrariness, the appeal has to be heard by a bench comprising five judges of the Supreme Court. This mitigates its deterrent capacity as, with time, the chances of acquittal brighten.
By opting for such an excruciatingly long process, valuable time and resources are lost, which could perhaps have been used in the psychological rehabilitation and counselling of the accused.
However, the biggest grey area in the doctrine of capital punishment lies in the possibility of its misapplication. It is, therefore, awarded only in the rarest of the rare cases, and after very careful conviction. Despite the meticulousness and all the added safety checks, the chances of wrongful conviction are high.
In the celebrated “Ford Heights Four” case, Aron Patterson— who lost 15 years of his youth sitting amongst death row inmates — earned his freedom merely 48 hours before his death after he was found innocent. After this incident, two reporters of the Chicago Tribune documented the systemic failure of the American capital punishment system. Half of the 300-odd death row cases in Illinois were reversed for a new trial or re-sentencing. There are many such Aaron Pattersons in India. Only they have a different name and a different face.
In his book, Public Justice, Private Mercy, the former California governor, Pat Brown, says “In fact the most glaring weakness is that no matter how efficient and fair the death penalty may seem in theory, in actual pratice it is primarily inflicted upon the weak, the poor, the ignorant and against racial minorities.” This book was written fifty years ago.
Sadly, the picture has not changed much in most of the countries that permit capital punishment. In India, this bias may spring from religion, caste, class or even region.
That capital punishment in India needs to be done away with is something that cannot be argued about. The question is — is there a viable alternative' The answer is a definite yes. A lot of planning and hard measures will of course be required to achieve this alternative.
The first step is sensitizing the judiciary to such a possibility. Then steps can be taken to frame laws that are rigorous and just, but are not geared towards the taking of life. Plugging existing loopholes which enable sexual offenders to run free is again a necessary step. Besides reforming the laws, other measures need to be implemented. Strengthening education, endowing criminal research and rehabilitation with more financial muscle and autonomy are crucial. It is time to humanize our perspective, not the mode of punishment.
Fortunately, winds of change are blowing as far as the debate on capital punishment is concerned. Even in the United States of America, where there is much support for capital punishment, states like Illinois and Maryland have declared a moratorium on executions, citing “reasonable questions” about the integrity of capital punishment.
Recently, a federal appeals court quashed the death sentences of over 100 prisoners in the states of Montana, Idaho and Arizona. The legislatures of other states are also expected to initiate sweeping legal reforms regarding capital punishment in the future.
Perhaps the law commission in India needs to look at the question from this perspective. A change of approach is urgent, by which ways of doing away with capital punishment must be considered. It is obsolete to think of humanizing its methods.