By Irfan Engineer
The march of history has been from more brutal and violent societies to more humane, inclusive and less violent societies; and from authoritarian to democratic states. The objective of punishment awarded by the society to the delinquents and non-conformists too evolved from that of retribution to deterrence and reformation of the delinquent.
According to “Rational Choice Theory”, objective of any punishment should be deterrence rather than retribution. Punishments inflicted by the state during ancient times and medieval period included boiling to death, feeding to hungry lions, flaying, slow slicing, truncating (cutting the body below the ribs and leaving the delinquent to bleed to death), disembowelment, crucifixion, inquisitions, crushing by an elephant, stoning, blowing from the gun, burning at stakes, sawing, decapitation, guillotining, public hanging and firing squad. These are by no means an exhaustive list but only indicative.
These punishments were administered on those who rebelled against the state, practiced a different religion or were dissidents and non-conformists. Galileo, who defended heliocentrism and questioned earth as centre of universe was also tried and inquisitioned for his belief, he however retracted from his discovery and submitted himself to the doctrines of the Church.
By 1820 in Britain, there were about 160 crimes (down from 220 crimes during its peak) that were punished by death, including the crimes like shoplifting, petty theft, being in the company of Gypsies for one month and strong evidence of malice in a child aged 7–14 years of age. Many crimes punishable by death in fact protected the property of the wealthy. Henry VIII is reputed to have executed as many as 72,000 people. Sir Samuel Romilly addressed House of Commons on capital punishment in 1810 thus – “no country on the face of the earth in which there have been so many different offences according to law to be punished with death as in England.”
In the 19th century, Roman Republic, Venezuela, San Marino and Portugal abolished capital punishment. The Roman Republic banned capital punishment in 1849, Venezuela in 1854, San Marino in 1865 and Portugal in 1867.
Attitudes changed by World War II, class barriers came down and people felt sickened by the holocaust of Nazi Germany. In 1948, the United Nations issued the Universal Declaration of Human Rights and this was adopted by Britain in 1950. The last execution by UK was in 1964. The Labour Party Government of Harold Wilson suspended death penalty for five years through an enactment in 1965. House of Commons reaffirmed its decision to abolish capital punishment for murder permanently in 1969. On the 10th of December 1999, International Human Rights Day, UK ratified Second Optional Protocol to the International Covenant on Civil and Political Rights thus totally abolishing capital punishment in Britain.
With the strengthening of democracies, there was increasing culture of tolerating dissent and differences. Sanctity of life is increasingly accepted and believed that society did not have the right to take away anyone’s life. Eye for an eye will make the whole world blind said Gandhiji. Collective conscience of a society should not be blood thirsty. There is increasing realisation of a possibility that person condemned to gallows could be under some mistake. Once executed the mistake cannot be corrected.
In 20th Century, Australia abolished capital punishment in 1973, Canada in 1976, France in 1981. In 1977, UN General Assembly affirmed in a formal resolution that it is desirable to “progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.”
On 21st November 2012, UN General Assembly’s Third Committee voted in support of its fourth resolution for a moratorium on the use of death penalty with a view to abolishing it. 91 member states sponsored the resolution, and it was approved with 110 votes in favour, 39 votes against and 36 abstentions. India voted against the resolution. The world is slowly moving towards abolition of death penalty or moratorium on its use. Two-Thirds of the country have abolished death penalty or have ceased to apply it. In most Latin American Countries, in Argentina, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Panama, Peru and Uruguay, Venezuela. In Europe – Australia, Belgium, Denmark, Germany, Italy, Netherlands, Norway, Sweden and Switzerland, Iceland, and many of the States in the United States of America, have abolished death sentence. Death penalty is considered to violate human dignity.
However, 60% of world’s population lives in states where capital punishment is on their statutes, including China, India, US and Indonesia – the four most populous states. 58 countries actively practice, 97 countries have abolished it and the rest have not used it for 10 years, or used it in exceptional circumstances like wartime. Article 2 of the European Union Charter of Fundamental Rights prohibits use of capital punishment.
There is no evidence of any increase in crimes after abolition of death penalty. In Greece banditry decreased after it ceased to be punishable by death and in Canada instances of rape decreased after abolition of death penalty for the offence. In England there was no increase in crimes which ceased to be capital murders under the Homicide Act of 1957.
In the year 2011, 21 countries recorded executions, as compared to 31 countries 10 years ago. China executed maximum number of people. However, China recently eliminated death penalty for certain economic crimes and reintroduced mandatory review of all death penalty cases by the Supreme People’s Court. Though China does not officially disclose the number of people it executes, studies point out that up to four thousand were executed. Iran executed more than 360, Saudi Arabia executed 82, Iraq 68, US 43, Yemen 41, North Korea 30, Somalia 10, Sudan 7 and Bangladesh and Vietnam 5 each. India executed Dhananjay Chatterjee in 2004, Ajmal Kasab on 21st November 2012 and Afzal Guru on 9th February 2013. The fate of Yakub Memon is yet to be decided.
Drugs, homosexuality and terrorism are issues on which some countries are expanding the scope of death penalty. 32 countries impose death penalty for drug related offences and drug offenders constitute majority of those condemned to die. Liberia, Uganda and other have launched efforts to impose death penalty for acts of homosexuality. Syria imposed death penalty for those arming terrorists in December 2011. India, Bangladesh and Nigeria have adopted laws expanding the scope of death penalty by including terrorist acts among the offences punishable by death. Indian Courts have adopted the doctrine of imposing death penalty in rarest of the rare cases.
Abolitionists and retentionists for capital punishment argue for and against death penalty on many grounds. However, generally the right wing nationalists who are ideological oriented to building an authoritarian state and retaining hierarchical order tend to be retentionists. Investigators and prosecutors in criminal justice system too tend to retentionists hoping that capital punishment would act as a deterrent. Execution of Ajmal Kasab did not deter terrorists from attacking police station in Gurudaspur on 27th July 2015 killing four policemen, including the SP of police, and three civilians and getting killed in turn.
Whereas those ideologically oriented towards building a more humanitarian society with emphasis on equality, equity and social justice tend to be abolitionists. They argue that as inequities and injustices increase, so do crime, irrespective of retributive punishment. The person perceived as cruel criminal by a section could be fighting for justice and become a hero for others and any cruelty in punishment makes such a person a bigger martyr to be emulated by others. Therefore cruelty of punishment alone cannot deter crime. It is a just and equitable society where compassion for a wrong doer is a value and reformation is an objective that reforms the criminal. Reformed criminal is a louder and clearer message to deter crime.
Disproportionate number of people from marginalized sections of the society – poor, ethnic and religious minorities and lower castes are handed down death penalty. For example, 41% of death row inmates and 34% of those executed in US are African Americans though they constitute 12% of US population. While there was little controversy in hanging Ajmal Kasab, and the Supreme Court in the case of Afzal Guru opined that death penalty would “satisfy the collective conscience of the nation”, Sessions Court Judge Jyotsna Yagnik in the case of Naroda Patiya (Gujarat) did not hand down death penalty to Babu Bajrangi who had slit the womb of Kauser Bano and hoisted the foetus on a trident though a reasonable man would say such a crime was rarest of the rare case of brutality. Judge Yagnik cited the ground of human dignity for not handing death penalty. To conclude, death penalty and legal execution of any human being brings out worst retributionist sentiments and violent animal instincts of a society evident from the interviews of ordinary people on TV after execution of Kasab. The Federation of Hindu Organizations called upon the then President of India APJ Abdul Kalam to request him that “The sentence (of Afzal Guru – ed.) should be so amended that his right hand and left leg are cut off and one of his eyes is gouged out and he is allowed, in this state of mutation to freely tour the whole of India and make an exhibit of himself in order that no extremist or terrorist ever emerges in this country again.” The Federation wanted the President to prove his patriotism by allowing such amendment to Afzal Guru’s death sentence.
The sooner the world is free from such basal instincts, the better.