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'Kill the rapist': The state and the death penalty


Most Indians cannot forget a girl whose name they don’t know yet. They came to know about this young physiotherapy student of Delhi only when the TV channels flashed the breaking news: ‘Delhi student was gang raped in a bus’.  

Let us have a recap of the incident: A 23-year-old medical student stepped out of a mall after watching a film with a friend.  At 9 pm, they boarded a private licensed bus. Sometime later, the the driver diverted the bus from its normal route and six men raped the girl after beating up her friend. She fought back, but was repeatedly sexually assaulted and her abdomen and private parts were badly beaten. At 10 pm, she was stripped naked and was thrown off the bus.

What an unfortunate life! She lost even her name. Even the best medical help couldn't save her. She died within a few days. And the country called her by a new name, ‘Nirbhaya’ which means fearless.

After a very quick and comprehensive investigation, the Delhi Police could nab all the criminals. The court did a wonderful job by expediting the trial in this case. The court awarded the maximum punishment as per law.

Why Capital Punishment?

People, by and large, welcomed the decision to award capital punishment in this case. However, as a matter of principle, a few people opposed such extreme punishment for any crime. On moral grounds I tend to agree with their view. But, legally and also on the basis of an analysis of the facts and circumstances of the case, I appreciate the judgment of the court. Certainly, one needs to apply the law of the land as it stands on that day and the judiciary cannot close the eyes on the existing legal position.

The debate on the utility or futility of ‘capital punishment’ is vibrant for several decades. Naturally, following one liner I posted in a social networking site evoked varied responses from a few of my friends.



Following are some of the discussions posted in my social networking page on my above one-liner.


Fawn Neun
 A quick hanging death is too easy.
Guru Prasad               
Come on sir! Who decides who are the right people? One judge or 3 judges. Right to life is a fundamental right of all. State assisted murder is  not acceptable.
Sibichen Mathew
Unfortunately that is the law of the land. We are free to bring in  amendments to  the constitution if we disagree.
Mini Verma
Well said Sibichen
Prafull Kumar Sinha
You have done what the framers of the constitution did not do, and the
Parliamentarians have been restrained from doing, till date.
Pauljohn Moonjeli
In my humble opinion, death penalty can be only for enemies of state, when they wage war (conventional or otherwise) on the country. In all
 other cases, death penalty should be replaced by incarceration till death                                     with no parole. Yes, that will be additional burden on the state/ society;                                       but, maybe the society contributed unwittingly to the crime.
Sibichen Mathew
 I  agree Prafull, Pauljohn, Guruprasad. But, as of now, one can't have the   judgement from 123 crore people.
The job is vested with the judiciary in this parliamentary democracy.
Of course, there need to be a radical thinking and consequent amends in the law to have retributory and reformative punishments even for very heinous crimes. Such a moral position would be appropriate for a  civilized society. I do not have any doubt.
But from the angle of the 'perpetrator',  he should introspect whether he has any right to live when he has taken the life of another in the cruelest manner.
Banita Naorem
I am totally with you. Rights should always come with duty and responsibility
Ashok Shahapur
158 Nations have abolished Capital Punishment.  Fear of death by capital punishment has not stopped criminals from committing heinous crimes.  If  we eliminate bad elements through capital punishments whether rest of us are all saints ? Now even the word 'SAINT' has lost its sanctity with incidents like Nityanad, Asaram and other self styled godmen.  Even the  'TEN COMMANDMENTS' given to the society say 'DO NOT KILL '
Sibichen Mathew
Ashokji, Individuals do not have the right to kill. But, as per the existing law,  the State can (we see this not only in Bible, but also in all sacred texts, since  you quoted religious texts): To protect the interest of the society and to give exemplary  punishment in rarest of rare cases. Ashokji, none claim (including those 158 countries) that all crimes can be wiped off overnight by hanging a few. Secondly,  why do we shoot a ferocious animal attacking the poor villagers? If all of us justify  that act by Forest officials, how can we  justify very heinous crime by men who are  worse than animals by giving them  a lesser punishment?




At this point of time, I put the following post to make myself clearer.





The discussion continued in spite of the above. A few of the comments are reproduced below.




Devojyoti Mukherjee
Endorse u .....yesssss...
Dagny Sol
You said it Sibi...
Ashok Shahapur
Sir, we are in a CATCH -22 . We are struck and too afraid to  review the system : We believe that it is the best way to deter  crime. Henry Ford said, 'Capital punishment is fundamentally
wrong as a cure for crime as charity is wrong for poverty’.
But at the same time when we look at certain cases, your response is justified which says ' PUT THEM TO DEATH ! '
Ak Rappai
They should be hanged in public , telecasted, videographed,and
 displayed in all public places to act as a deterrent towards rape and
 other similar crimes against women
Guru Prasad
This society is deranged to celebrate somebody’s hanging
Sukumar Mondal
Heinous crimes should be dealt with that way
Satya Prakash
Perhaps our judiciary should have more stringent punishment,  as
stringent and severe as nirbhaya suffered......
Ashok Shahapur
Mr Sibichen Mathew, on what grounds you are for capital punishment?
Moral, Biblical, ethical, utilitarian, or legal? Or any other?
Sibichen Mathew
I am not for or against. I respect the law of the land as it stands. This doesn't mean that I do not have any suggestion for amending the existing law. That is a different topic altogether. At present, I respect the judgment in the given facts and circumstances of the case. I am consistent on this and no contradictions.
Ashok Shahapur
Sir, your comments are both a fusion of explorer and constructive view. Yes, the country needs reform system with regard to capital punishment beyond that of primitive society .
Sebastian James
By calling for public hanging we are not so different from the
Saudis/Afghans afterall  (who impose death by public
hanging/stoning/beheading, etc for crimes committed). Effective
punishment=Probability of being caught X Severity of Punishment. The Saudi/Afghan style is to increase the severity of punishment to scare people. But we could also work towards increasing the chance of criminals getting caught and getting conviction in a short duration. As a civilized society we should work on this approach rather than the former.
Ashok Shahapur
Sir, You were against capital punishment. You are for retributive and
reformative punishments even for heinous crimes.  You say in Nirbhaya type cases capital punishment is justified . Sir, these thoughts reflect your holistic and divergent thinking from various angles. Sir, these thoughts reminds me  Walt Whitman's quote " I contradict myself, I contain in multitudes!'
Pauljohn Moonjeli
When/if the 'perpetrator' introspects whether he has  any right to live when he has taken the life of another in the most cruel manner, that could be a turning point in his life. I think all of us CAN be reformed, regardless of our history/ background, etc. look at what happened to Reny George:
 http://www.tehelka.com/inspirations-reny-george-57/
Anil Gupta
As expected we always debate about rights of doers of crime but rarely
bothered about the victim and their family. Unless we reverse this trend crime is not going to stop. It is pity that the brightest brains and philosophers come forward always for protecting the rights of criminals.
Comment from Abraham Jacob
we find that most of the crimes are committed by habitual offenders, criminals who are on parole or who have been let off earlier due to lack of evidence.. I feel it is better to eradicate such people from the face of the earth so that the threat from at least such elements as well as the cost of maintaining them by the country can avoided.
Sibichen Mathew
Paul, you need to apply the sociological theoretical perspectives when you compare the motive, process, and cultural background of both cases. These are in two different realms. One would arrive at erroneous decisions through incorrect comparisons. That is why thousands of criminals and their shrewd advocates get away by misleading the courts by citing incorrect precedents (I  mean case laws).



The above discussion prompted me to analyse the current decision of the court in the context of the facts and circumstances of the case.

The question I am analyzing is this: ‘Am I correct to hold the position that ‘I was against Capital Punishment till I read about how Nirbhaya was killed’?'. In other words, ‘Can we have capital punishment in ‘rarest of rare’ cases?’


In Bachan Singh v. State of Punjab (1980) 2 SCC 684, the Hon'ble Supreme Court held that if a murder involves exceptional depravity, it shall be an aggravating circumstance for imposition of penalty of death.

In Machhi Singh v. State of Punjab (1983) 3 SCC 470, the Hon'ble Supreme Court held as follows:

‘When the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so ( in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

(i)                  manner of commission of Murder i.e., when the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community ;
(ii)                whether the victim is subjected to inhuman acts of torture of cruelty in order to bring about his or her death.’

Whether Nirbhaya case was one of the ‘rarest of rare’ cases?

I referred to the press briefs based on the reports  released by the Medical board on the progress of Nirbhaya while she was in the hospital.
Following report clearly makes the relevant point: 

19-12-2012
Amidst the arrests and the investigation by the police in the shocking case, the health of the victim has deteriorated again. While her condition got better on Tuesday morning, she was again put on ventilator in the evening, according to the medical update from the Safdarjung hospital.
The Safdarjung hospital has said that the condition of the victim has deteriorated. According to the hospital, while the condition of the victim got better on Tuesday morning, but had to be put on ventilator again in the evening.
The hospital further said, "This is a severe and a very unusual case which the hospital has never seen in terms of the injuries...she has received severe genital and intestinal injuries."

The court went through the medical files of Nirbhaya in detail. It observed as follows:

The facts show that  entire intestine of the prosecutrix was perforated, splayed and cut open due to repeated insertions of rods and hands. The convicts, in the most barbaric manner, pulled out her internal organs with their bare hands as well as by the rods and caused her irreparable injuries, thus exhibiting extreme mental perversion not worthy of human condonation. As convict in pursuance of their conspiracy lured the victims into the bus Ex. P-1, brutally gang raped the prosecutrix, inflicted inhuman torture and threw the defenceless victims out of the moving bus in naked condition, profusely bleeding in a cold winter night ; their unprovoked crime demonstrated exceptional depravity of mind of the convicts. In the postmortem report Ex. PW34/A, besides other serious injuries, various bite marks were observed on her face, lips, jaw, near ear, on the right and left breasts, left upper arm, right lower limb, right upper inner thigh (groin), right lower thigh, left thigh lateral, left lower anterior , genital. It rather show the beastly behaviour of convicts. Further, the convicts did not stop after pulling out her internal organs after the crime of gang rape / unnatural sex but then had dragged the victims to the rear door of the bus Ex.P-1 to be thrown out and when the rear door was found jammed the victims were dragged by their hairs to the front door and thrown out of the moving bus. Her intestines were so severally damaged and the suffering inflicted on the prosecutrix was unparalleled. The brutality caused to her internal organs is extreme as is evident from the medical evidence on record and hence the act of convicts call for extreme penalty.




As per the present legal position, in order to award a death penalty the court has to first weigh the aggravating circumstances against the mitigating circumstances. If it finds that there are no mitigating circumstances, then the court need to apply the Rarest of Rare test to find if the case falls within such category.

While delivering the decision, the court has relied upon past judicial pronouncements:

In Machhi Singh v. State of Punjab (1983) 3 SCC 470, the Hon'ble Supreme Court held as follows:

" In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it".

In Devender Pal Singh vs. State (NCT of Delhi) (2002) 5 SCC 234, the Hon'ble Supreme Court held as follows:

 "Principle culled out from the judgments in Bachan Singh (supra) and Machhi Singh (supra), is that when the collective conscience of the community is so shocked, the court must award the death sentence."

In Ram Singh v. Sonia & Ors. (2007) 3 SCC 1, the Hon'ble Supreme Court once again held as follows:

 "It would be a failure of justice not to award the death sentence in a case where the crime was executed in the most grotesque and revolting manner".

 In C. Munniappan v. State of Tamil Nadu (2010) 9 SCC 567, the Hon'ble Supreme Court held as below:
"Stressing upon the manner of commission of offence, if extremely brutal, the diabolical, grotesque killing, shocking to the collective conscience of the society, the death sentence should be awarded."

In Ajitsingh Harnamsingh Gujral v. State of Maharashtra (2011) 14 SCC 401, the Hon'ble Supreme Court further held as below:
  " the distinction has to be drawn between ordinary murders and murders which are gruesome, ghastly or horrendous. While life sentence should be given in the former, the latter belongs to the category of the rarest of rare cases, and hence death sentence should be given."

The order in the present case clearly presented its reasoning in following words:

‘The court has to look into the factors like society's abhorrence, extreme indignation and antipathy to certain types of cases viz., like the case in hand - of gang rape with brutal murder of a helpless girl by six men. These are the times when gruesome crimes against women have become rampant and courts cannot turn a blind eye to the need to send a strong deterrent message to the perpetrators of such crimes. The increasing trend of crimes against women can be arrested only once the society realize that there will be no tolerance from any form of deviance against women and more so in extreme cases of brutality such as the present one and hence the criminal justice system must instill confidence in the minds of people especially the women. The crime of such nature against a helpless women, per se, require exemplary punishment. I may leave here while saying that the gravity of the incident depicts the hair rising beastly and unparalleled behaviour. The subjecting of the prosecutrix to inhuman acts of torture before her death had not only shocked the collective conscience but calls for the withdrawal of the protective arm of the community around the convicts. This ghastly act of the convicts definitely fits this case in the bracket of rarest of rare cases. Hence, I award the following punishment to each of the convict.’

Here below are two pictures shared and liked by hundreds of women in social networking sites immediately after the above judgement (Credits to the anonymous owner)



                                                          
    Analysis in general
  
The perspective of the UN

The Universal Declaration of Human Rights contains the following:

Everyone has the right to life, liberty and security of person
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment
Everyone has the right to recognition everywhere as a person before the law.
All are equal before the law and are entitled without any discrimination to equal protection of the law.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
                               (The Universal Declaration of Human Rights, Articles 3,5,6, 7, 8)

Out of 193 Member States of UN, about 150 countries have abolished Capital Punishment.  In a recent speech, Secretary-General Ban Ki-moon said as follows: ‘“The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process. We have a duty to prevent innocent people from paying the ultimate price for miscarriages of justice. The most sensible way is to end the death penalty’ The topic of discussion was “Moving away from the death penalty – Wrongful Convictions.”


View of Amnesty International

Amnesty International opposes death penalty in all cases without any exception. It campaigns for total abolition of death penalty. Amnesty International argues that there is no evidence that the death penalty is a stronger deterrent against crime than custodial sentences. As per the statistics compiled by Amnesty International, there were at least 680 in 2012. Half of the executions took place in Iran (314). Iraq executed 129, Saudi Arabia 79 and the US 43. This excludes data from China which, according to Amnesty, contributes to a large portion of total executions in the world.

How India is more responsible than other countries in awarding capital punishment?

In principle, I agree to the view that capital punishment should be best avoided.  However, India, as a responsible Member State of the United Nations, has never used this option in undeserving cases unlike many other countries.  As per the statistics of the National Crime Record Bureau (2013), in India a total of 97 prisoners were awarded capital punishment in 2012 and only one person was executed.

In a recent report  (2013) of the Amnesty International titled ‘Death sentences and executions in 2012’, it narrated instances of capital punishments carried out by politicians across the world to show that they are tough on crime or to silence the dissent. 

In Iran, four people were executed for the ‘offence’ of ‘enmity against God and corruption on earth’. Five persons were sentenced for anti-government protests. Both in Iran, Iraq, and Saudi Arabia, it has been reported that confessions were taken based on forced confessions under torture and later awarded death penalty. In many cases, the accused were not allowed to take the assistance of a counsel. In Sudan, the government used the capital punishment to suppress the opposition.

The Amnesty report says that the death penalty continues to be used for ‘crimes’ such as ‘adultery’ ‘apostasy’, and ‘sexual relations between consenting adults’, all acts which do not meet the international standard of ‘most serious crimes’ but which should not be considered crime at all. In United States the death penalty has been abolished in many states because of its discriminatory applications and the possibility of wrong convictions.

The sentencing for death penalty is not final

The imposition of capital punishments does not always end up in execution. After the order of death penalty by a sessions court, same has to be confirmed by the High Court. The convict can file an appeal against the order of High Court in the Supreme Court. In India, Article 72(1) of the Constitution grants the President the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence  in all cases where the sentence is a sentence of death. Mercy petition can also be filed before the Governor of the state.

The police, the jail authorities, the co-convicts in prison, the counsels and many others who interact with a convict sentenced for death penalty but pending for execution can tell clearly whether that person is in a repentance mode. All these would be invariably go into the reports that aid in deciding on a pardon by the President.

Concluding analysis

(Caution: Following analysis is in the context of legitimate democracies and not applicable to the state sponsored killings in many authoritarian states.)

In a civilized society, the civilized decision makers are democratically elected, and legitimately appointed to provide protection to the people as per law. Their actions can be criticized if they fail to follow the law. Once a power is legitimately bestowed upon an incumbent, and if he does his duty in exercise of that law, none can question that action. If the law itself is redundant, incorrect, illogical, irrational, inhuman or antisocial, the only remedy is to change the law. The law can be amended only by the representatives of the people duly elected and the majority decision prevails. This is absolutely the correct procedure in a democratic society. If there is something wrong with the democratic process which itself is less democratic or it is difficult to be democratic due to the inherent errors and biases in that process, there are avenues for reform. The constitutions of the democratic countries provide rights for every citizen to express his dissent in a civilized manner. For reasons discussed above, it is the sovereign duty of the state through its judiciary to apply the law as it deemed fit in appropriate circumstances in order to serve the best interest of the society. An order awarding capital punishment is an example of legitimate exercise of the power granted as per law.

Though the law governing an individual and the law governing a state are not mutually exclusive, contradictory or which can be substituted, they are not one and the same. When law expects an individual not to harm another individual unless there are certain mitigating circumstances or exceptions specifically enumerated in the penal codes, the state is not prohibited from inflicting a harm on an individual or entity or a group of individuals or a group of entities for the common good. Entire punitive system is based on this principle. If the parliament has made a law or the highest court has already pronounced a judgment in identical case, there is less room for applying discretion that is beyond the scope of law or deviate from a well-established precedent.  Any adverse decision would be considered as perverse and would bound to be set-aside.

The state needs to respect the life of every citizen. For this purpose, in exceptional and rarest of rare cases, it needs to take the ultimate step of depriving a person his life for common good. An army has the power to shoot at the person who deliberately trespasses or invades the state’s geographic boundaries to damage the unity and integrity of the nation and the peace and welfare of the people. A criminal if he acts against the country and its people and if his existence is a further threat to the state, it is the duty of the state to eliminate the permanent threat in order to remove the fears in the minds of the people and to maintain law and order.

But the above power to take away the life of an individual has to be used only in the most deserving cases. Amnesty International, which is against the capital punishment, opposes it mainly on the ground that many countries use this indiscriminately. Its reports narrate instances of capital punishments carried out by politicians to silence the dissent, for the ‘offences’ or ‘sins’ which amounted to  ‘enmity against God and corruption on earth’, and by taking forced confessions and torture in custody. When certain undemocratic, illegitimate, inefficient, and fascist rulers and officials use capital punishment for illegitimate purposes, it is perfectly right on the part of organizations like Amnesty International and other human rights organizations to call for a total ban on death penalty.

The Universal Declaration of Human Rights by the United Nations is not in contravention to the laws of the legitimate states. It advocates for upholding the law that ensures freedom to all citizens. There is no different opinion that ‘all are equal before the law and are entitled without any discrimination to equal protection of the law’. Thus an innocent and hapless woman is entitled for justice and expects the state to punish a criminal appropriately. Protection under law is for the people who follow the law and not for people who act outside the law. Similarly, millions of hapless women can experience the security and protection offered by the state for which they are entitled, only when they are convinced that the state has taken concrete steps so that no incident of gruesome murder is perpetrated by criminals who think that they could get away without facing extreme punishments. As mentioned earlier in this article, the United Nations is worried more about the death penalty in cases of wrongful convictions.

Now the question is, if the judgement is wrong, an innocent person will lose his life which none can restore in this world. This throws open a very fundamental and universal issue of error of judgment. In a perfect criminal justice system that analyses the investigation reports threadbare, allows production of evidences by all the parties, follows time tested and established procedures for examination of witnesses, put in place an adversarial system where arguments and submissions are cross examined, draws from the rich judicial precedents, permits state sponsored legal assistance, there is no scope for gross errors. Even if there is an injustice due to various factors including the inability of any party to produce any evidence at the time of trial, the multi-tier criminal justice system that provide for appeals to higher courts give opportunities for the accused, the convict, or the prosecution. By the time the order is delivered by the apex court, all aspects of the case would have definitely brought on record so that there is no error in the decision.

Next objection would be about the opportunity for repentance and  reformation. Crminal justice system and the related punitive system are aimed at reforming a criminal. Reformation is a process that happens from within and the individual becomes conscious of that when he perceives a change in the 'state of mind'. But the reformation of a person is manifested in his outward action. To examine whether a rapist is reformed, the state cannot set a honey trap outside to examine whether he is attacking the lone beautiful woman or it cannot mount surveillance for months and years to check whether his animal instinct to rape is still intact. However the jail authorities and the people who interact with him in his cell can understand his change in attitude, temperament and behaviour and report the same. Psychologists and sociologists can closely watch or do a counselling or try scientific tests to find out whether there is any reformation. But all these are also marred by errors of judgment, sometimes graver than the errors in the scientific analysis and conclusions of the criminal justice system.

Paroles, commutation of sentences etc. are done in many cases based on the reports of jail authorities and other social scientists that the convicts have reformed. But in significant number of cases it was found that the people who went on parole have indulged in criminal acts, and people who got released after commutation of their sentences, engaged in further offences.

Another strong argument in favour of total ban on death penalty is that there is no evidence which shows that the crimes have been reduced because of death penalty and thus it is not an effective deterrent. This is a misplaced notion for two reasons. First, there is no authentic and comprehensive statistics to show that such heinous crimes have either increased or decreased because of the ban or continuation of death penalty. Second, an unreformed criminal who has done a very gruesome act which classified as a rarest of rare cases after a comprehensive judicial investigation and analysis, can by way of his conduct and interaction within the walls of the prison (even if no parole is sanctioned for him),  infect and influence others with his words and behaviour. This will have an effect that is counter to the deterrence. In an over-crowded and grossly under-staffed prison  system (most countries including India has inmates much more than its capacity), and reports of large scale corruption and indiscipline within prisons, a shrewd criminal who has done a gruesome and ‘rarest of rare’ crime, can exploit the loopholes and adverse circumstances to remotely indulge in further crime through his friends and accomplices outside the prison. Even solitary confinement for life is not a viable alternative in the current punitive system and would not in any way safeguard his rights; if at all one has to consider that a person who committed a most gruesome murder can demand any rights for himself.

See the example of a rapist who is responsible for the death of a hapless woman passenger in Kerala in Southern India.  Govindachamy was in the habit of indulging in various criminal activities under the guise of his ‘profession’ as beggar in trains and by attracting the sympathy of people showing his physical handicap. He sexually assaulted and killed a girl while she was travelling in a local train. The police arrested him within 48 hours. He was awarded death penalty by the court within a few months.   

This photo was published widely in many newspapers. 
Someone compared Govindachamy at the time of arrest and after a 
few months in Jail (Source: malayalam.oneindia.in)

It is reported by the media that he has not reformed even a bit after this incident and the sentencing. He has already completed 2 years and 5 months in jail. I would like you to read the article in open magazine to know about Govindachamy in detail.  .  Also see this article.  It is not because he got demoralized by the judgment of the court that he behaved aggressively. He is very optimistic about his coming out of the prison by employing the best advocate for him. The huge monetary backup from many unidentified persons points towards the organized criminal gang behind him. Don’t you think one should feed him with his favourite mutton curry and biryani (he did a hunger strike for getting these delicacies in the jail) and plot further crimes along with his criminal gang? As a citizen let him fight in higher courts and prove his innocence. If the High Court and Supreme Court after examining the evidences and arguments concur with the lower court’s judgment and the President of the country reject the mercy petition on the ground that the person has not shown any inclination to reform himself, would you still argue that he should have been sent to prison so that he will get an opportunity to communicate with his gang who had invested huge sums for his case? It is reported by the jail authorities that he is acting as if he is mentally deranged to get leniency from the appellate courts. The actor can act that he is totally reformed and get a parole and continue to indulge in his past pastime. 


Next argument is from the angle of religion. I do not want to go in detail to that. But the scriptures of both religions of Judaic tradition (Christianity and Islam) and the major eastern religion Hinduism are full of instances where the rulers and leaders eliminated the enemies of the state and the society guided by divine and prophetic voices.  Even if there is an argument that Jesus had re-written the old law of ‘tooth for tooth and nail for nail’, that position was in the realm of individuals and not in the realm of Caesar, if he acts to protect the society against criminals who refuse to reform themselves. In fact this is not only a sovereign duty but also a ‘divine’ responsibility. The Catholic Church is a staunch opponent of death penalty. But it said in an authentic document that, ‘No matter how heinous the crime, if society can protect itself without ending a human life, it should do so’ (USCCB, A Culture of Life and the Penalty of Death). The key word in this statement is ‘if’. That is what the democratic governments also do. They award death penalty only in rarest of rare cases where it is found that it is the only solution to protect a society that cannot protect itself from an extreme and unreformed criminal. See another article titled 'Is the death penalty just?' from a religious point of view. 

Final note


Death penalty is an undesirable punishment for all civilized societies. Awarding death penalty to serve the political and religious interests is highly deplorable. Even in democratic countries where capital punishment is awarded in rarest of rare cases, steps should be taken to reduce it to nil. However this can happen only in an ideal criminal justice system and punitive environment where a) criminal investigation is done without any flaw, b) judicial process is inclusive, transparent, quick, and affordable, c) prison rules are stringent and the prison officials are honest and efficient, d) the prisons are transformed into institutions for reformation, and e) an efficient crime prevention system is in place. All nation-states should strive for this. And governments should ensure that only life sentences are awarded to persons even in rarest of rare cases and no mercy petition for commutation is entertained. It should be incarceration for the entire life in the ‘rarest of rare’ cases. Till a criminal and punitive system as stated above is in place, let us be less vocal in opposing the judgments passed as per law in very deserving cases in the interest of the society. 

                                         © Sibichen K Mathew (views are personal)
(To publish your comments, click 'Comments' below. It will appear in the blog after a while) Or e-mail me: sibi5555 (gmail))
                                                         
                                                                      

10 comments:

  1. Death penalty is against human civilisation and its evolution. But are the rapists in the case cited above 'human'? Is it wrong to shoot animals that go dangerously mad?

    ReplyDelete
  2. Till the time society and state are equipped to prevent such heinous crimes, a proper criminal and punitive systems are in place, and an effective reformative strategy is implemented, we may have to justify such extreme actions as per law in rarest of rare cases to protect the society. However, these political and administrative inadequacies are not excuses for any plea for mercy

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  3. OMG this is a complete eye opener about the LAW. Fantastic work Sibi, hats off for this article.
    But then in no situation I can come to terms with pardoning the beasts on the grounds of Human right. the "Right People" in the statement you made is perfect. If only there is any better torture and punishment compared to capital punishment, only then there is some judgment for the poor soul which departed with so much pain.

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  4. Thanks Ramya. I can understand your anguish. Even the 'rights activists' need to draw a line so that criminals who engage in such heinous crimes don't demand protection in the name of 'Right to life'.

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  5. Bravo Sibi! I have been a vocal proponent of the death penalty on FB threads - not yours, though - and you have encapsulated the arguments that I talked of there.

    In fairness to myself, I must say I am not of the "Off with their heads" brigade for all crimes or even of all criminals accused of a crime. My point is only that, when you have a depraved criminal, to chose to let him live is to become responsible for any crimes that he carries out further. Anyone who refuses to take on that responsibility personally should not be talking platitudes about the sanctity of human life. For me, the sanctity of human life of the law-abiding stands universes ahead and if there is the slightest chance that the criminal will endanger or ruin one single innocent life, I will be the first to yell "Off with his head". To plead against the death penalty for ALL criminals is NOT buttressing the sanctity of human life but endangering it.

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  6. Well said Suresh! It is dangerous to extend the privilege of exceptions (against death penalty) if there is a slightest chance that the criminal would ruin the life of another person. Thanks for sharing your view.

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  7. I think we should not look at this incident and the consequential trail, public anger and judgment in isolation. This is a malaise of Indian society. Diverse as we are, we have never tried to bring in a social order that is diligent, based on honest debate, practical to implement with swiftness and certainty, just, without ambiguity, without giving opportunity to violate with impunity, seen as uniformly applicable without discrimination (the poor and the ordinary vs the powerful and influential, giving scope for bending to suit if you have the means to do so, opaqueness, ...

    We don't create citizens but self centered individuals in this socialistic pattern of democracy (with the banes and pains of both not benefits of both), we create individuals who behave like good samaritans in public and vultures in private, we suffer from hippocracy easily supported by the divides (diversity) in our society based on caste, economic and educational status, awareness to see through vicious designs....., We can go on. In this scenario, I would look at this rape case as another one of the several crimes that happen every day right in front of eyes. As a society, we pretend to be blind and deaf to what goes on right in front of us because that is what is rewarded in our system (no effective protection for the whistle blower who comes forward to expose such crimes, even RTI activists are targeted and many have lost their limbs or life, their near and dear ones because they dared to be different, even a rationalist thinker was recently murdered in Pune recently.

    Though I firmly believe wrong doing should get punished I also believe a knee jerk reactionary response is less unlikely to help realise the desired results. it may look like appealing to the agitated crowd (all of whom I don't consider to be true sympathizers or those who want to bring about a change, but in a sense opportunists no different from the larger societal characters).

    We need to address the deeply embedded issues: building in character in individuals, creating a responsible society, honesty and integrity in whatever we do, conducting oneself with courage of conviction, fear of law and belief that the legal and other support systems are functional, efficient, transparent, honest, ethical, reliable, deliver quick justice and so on.

    The root cause is our belief and value system, and lack of fear of law, irresponsible conduct of responsible citizens whenever they encounter an undesirable situation, making responsible behaviour (such as reporting crime to the PS, assistance in case of a traumatic situation in public space etc. an individuals legal duty such as giving evidence, reporting a crime, reaching distressed to hospital,..

    We don't inculcate appropriate behavioral traits in our children, we don't train them on basic civic behavior, basics of our legal system, care and compassion, independence, we spoil them through over supervision and direction by parents, we dont encourage them to take independent decisions and be responsible....

    An isolated death penalty is not going to solve this problem, though the high profile women's groups and those who superficially support them may feel they have scored a point ... This is just a transient state of euphoria. We will allow them that moment of happiness and feeling of being vindicated.

    I would also like to add, the women's lib groups are also to be blamed for such incidents as such public pronouncements tend to give the younger feminine generation a false sense of euphoria, misplaced courage, and the fire to do what they think will make them heroes. I am not saying that women should feel inferior to men or intimidated to think and act free, but we (men and women) cant indulge in acts that patently are dangerous or risky.

    I wish our society invests in building character, sense of responsibility, courage, humility, integrity, compassion .... in our citizens

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    1. KVS, sir, you have examined the issues in with multi-layered exploration brilliant social - psychological analysis and ethical passion

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  8. Dear KVS, you have very comprehensively dealt with the social pathology of Indian Society. This is a very desirable approach in exploring various strategies to solve the issue at hand. Yo have made a very valuable point that the concerted efforts should be not just for solving the problem but for preventing them. There is a deep rooted malaise that has to be effectively tackled to control the crime and the criminal behaviour (along with the 'fake' outward expressions) as mentioned by you. Thanks fro the very enlightening comments and I hope readers will have a lot to take from this.

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  9. All said and done, (I couldnt follow a lot of legal explanations) I feel only a civilized society should do away with capital punishments. Judging by this incident India cannot be counted as a civilized nation. We need more capital punishments to instill a sense of fear and discipline in the minds of people.

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