October 10, 2013, the 11th World Day Against the Death Penalty, was marked internationally by official press releases and declarations emphasising the commitment of various governments to the abolition of capital punishment. Except in India. India is one of just 58 countries that still retain the death penalty while around 140 have abolished it or do not practice it. And whereas more countries than ever before voted at the end of last year in favour of a UN resolution for a worldwide moratorium on the death penalty, India, in a giant step backwards, lifted its unofficial eight-year moratorium and resumed executions in 2012.
Winston Churchill said, “The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of civilisation in any country.” By this litmus test, our reaction to the hangings of Ajmal Kasab or Afzal Guru and to the death sentence conviction of the four accused in the Nirbhaya case proves that we have failed miserably. To bay for another’s blood or rejoice at his impending slaughter, even though he may be the perpetrator of a most heinous crime, only mirrors one’s own inhumanity.
With a death sentence, the cause of retributive justice appears to be served and the lust for vengeance seemingly satisfied. But what of reformative justice? And that is the fundamental problem with capital punishment. It shuts the door on reform, is irreversible and final. It is based on the assumption that justice is infallible, that judicial errors are never made. Yet it is subject to “judicial vagaries” (Justice P.N. Bhagwati’s words in his dissenting argument in Bachan Singh’s case). It depends on the judge’s subjective interpretation of the “rarest of rare” and one’s luck in the judicial lottery of judges. In addition, it is a punishment with a de facto class bias; it is primarily inflicted on the poor and ignorant, and hinges on the defence lawyers’ resources and the quality of the defence. The affluent are rarely condemned to go to the gallows. The poorer the individual the less likely it is that s/he will be well represented.
The deterrent value of capital punishment has not been proven. There is no evidence to suggest that the retention of the death penalty leads to a drop in brutal crimes or that its abolition results in a higher occurrence of them. In fact, studies have shown that it is rather the certainty and celerity of punishment that has the greatest deterrent effect. For criminals who believe they can act with impunity, the severity of the sentence is of no consideration.
“Capital punishment is the most premeditated of murders,” said the French writer, Albert Camus. It is inhumane and a colossal violation of human rights, the grossest form of torture. (Incidentally, to India’s shame, it has been dragging its heels and is one of a handful of countries that have not ratified the UN Convention against Torture.) The death penalty brutalises and desensitises society. It fans the desire for revenge, not justice.
Though it was among the first few countries to abolish slavery, France too was a relative laggard when it came to death penalty abolition and clung to the guillotine, a horrific instrument of execution by decapitation. Calls for abolition had been made over the years by French intellectuals like Victor Hugo and Camus among others but it took two men of extreme political and moral courage working in tandem — Robert Badinter, eminent lawyer-activist and later minister of justice, and President François Mitterrand — to fight for abolition and push it through.
In a country that predominantly favoured capital punishment, Badinter made it his life’s mission to fight for its abolition. He personally defended many criminals accused of the most atrocious crimes to save them from death row. He argued his case in extremely hostile, pro-death penalty courtrooms, losing a kilo a day of body weight from the stress and had to slink quietly out of a back door whether he won or lost the case to avoid being lynched. Yet, he soldiered on, unwavering in his fight against capital punishment, fighting cases, pleading his cause, gnawing bit by bit at the collective conscience through impassioned speeches, brilliantly petitioning politicians and convincing Mitterrand to take a pro-abolition stand. Mitterrand, a shrewd politician and past-master of political doublespeak, knowingly put his third presidential bid on the line when, in answer to a question on capital punishment in a televised debate, instead of dodging the journalistic bullet, he unequivocally stated that he would abolish it even though 63 per cent of the French were for it. His answer showed him to be a man of moral convictions and was actually the turning point in the election. The death penalty and the guillotine were outlawed in France in 1981.
India needs crusaders like Badinter and politicians with moral courage who, instead of playing to the lowest common denominator in public sentiment, inform and educate public opinion on this subject, inculcate a deep respect for human life and lead the way to the abolition of capital punishment. Let Badinter’s cry “No to a justice that kills” resound across India and let the hangman’s noose be relegated to the annals of criminology.
Kapoor-Sharma is a Paris-based interpreter and writer