Cannot We Seek Abolition Of Death Penalty?

Death sentence to Kulbhushan Jadhav awarded by Pakistan military court on spying charges should propel India in pleading abolition of death sentence which is cruel, medieval and counterproductive.

Hyderabad: Last month Pakistan handed out the death sentence to Kulbhushan Jadhav, a former Indian naval officer on the charges of espionage and sabotage on its land. There was public outrage over the punishment in our country, seemingly not engendered out of their opposition to the death penalty itself as a punishment for crime, but of bitter feelings they have towards Pakistan. Without any dillydallying, the External Affairs Ministry knocked at the doors of International Court of Justice, the UN body, in a bid to save the precious life of our national, unlike other times. The ICJ on May 18 stayed the execution, pending its final verdict on the matter. Diplomatic and legal efforts have been afoot since then against and in favour of execution by India and Pakistan respectively. Now it appears to be the turn of Jadhav to wait upon the final calls (of the ICJ, India and Pakistan), hovering between hope and despair like the ones before him, be it at home or elsewhere.

Indeed, there is a demand for the abolition of death penalty by the human rights organisations, irrespective of the crime the criminals are involved in. However, India continues to be a country which perceives capital punishment as a deterrent to crime, despite appeals to abolish it. Besides, the majority of people are as much opposed to abolition campaigns as the State, notwithstanding the rationale behind the demand for abolition. The moment the human rights organisations appeal for clemency or commutation for a death sentence in any particular case in our country, there emerges a fierce opposition to it from the State and people as well. They are immediately accused of siding with the criminals. Given the grievous and cruel nature of the offense committed by the criminals, the opposition to commutation from people can be understood to some extent soon after such incident. In the Nirbhaya case, the whole country raged against the incident and demanded that the criminals be hanged so that no one would commit this sort of crime in the future. Similar demands surfaced from general public on many an occasion when innocent people were ruthlessly killed in the terrorist attacks. There has also been a demand that the criminals involved in rape be sent to gallows. A critical thought into these arguments provides us with definite answers as to why capital punishment be opposed in principle.

Human rights activist Late K. Balagopal in his article ‘Of Capital and Other Punishments’ explains that the concept of deterrence as an aim of punishment is used in three senses. One of the three senses is that the punishment will deter the criminal from repeating the crime. He argues, “To measure punishment by the requirement that the criminal should not repeat the offense is to assume that circumstances impelling the crime are of no importance and the criminal’s will is all. It is indeed close to assuming that the crime springs from a permanent part of the person’s character, which will repeat itself over and again unless deterred by violent punishment.” While maintaining that the punishment may not be the best way to ensure the crime is not repeated, he strongly advocates reform both of the person and his circumstances. Adding that the reform of a person does not mean merely counselling, he says, it would include some punishment which would deprive a convict of freedom, comfort etc one generally enjoys in one’s normal life. Elucidating further, Balagopal asserts that punishment of some sort is integral to the process of reform of the person to the extent that it is reform of the person. The ultimate aim of the punishment is to bring about a sense of repentance in the convicts and to make one amenable to the process of correction. Death penalty defeats this purpose of bringing about reform in a convict once a convict is sent to gallows.

That the punishment given to a criminal will deter others from committing the crime is the second sense. This is nothing but making the first convict responsible for a ‘future crime’ likely or unlikely to be committed by some other person(s) in addition to the crime the former already committed, leave alone taking into consideration circumstances peculiar to each one. Punishment, Balagopal says, should be strictly guided by correctional considerations relevant to that person and it should not be given to set an example to others.

Indeed, the belief that death penalty deters others from doing the same crime has no evidence. Let us consider several incidents reported in the news media after a lower court imposed death penalty for the culprits in the Nirbhaya incident. Hardly ten days after the Apex Court upheld the death penalty to those involved in the Nirbhaya incident, a similar incident was reported in Rohtak in Haryana on May 12, indicating that no such fear acted as a deterrent. If the fear (of hanging) inculcated in others deterred crimes, there would not have been more Nirbhaya-like cases across the country.

Thirdly, the concept of deterrence is used assuming that the punishment will act as a deterrent in general. Viewed in this sense, the death penalty has no deterrent effect in the countries that abolished it. There was not any increase in the rate of crime in those societies. Several studies held across the globe revealed that it remained futile in deterring the crime.

Moreover, the prospects of executing an innocent person cannot be ruled out since none of those working in courts and police can be said to be perfect in their judgments and investigations. Either fake evidences or imperfect investigations may result in wrong judgment. Any error in judgment cannot bring back a life that is hanged. Death penalty is irreversible unlike other punishments.

Further, factors such as economical, social, cultural, political and individual problems come into play in committing a crime. Ascribing total responsibility to the accused alone is nothing but negating the responsibility of the society. The society has to take responsibility for its part. It seems strange to many but it can be possible in a way that society is to bear the expenses of the families of the convicts as long as the latter were in prison.

Across the globe, by far 104 countries abolished the death penalty. About 63 countries are still retaining it in law and imposing death sentence while 33 countries practically have not awarded it for the past ten years although it is in their law. Of those not in favour of abolition, China, Iran and Iraq have occupied top three slots in carrying out executions, reports Amnesty International. The US which is boastful of its being more democratic and civilized than any other country has not scrapped death penalty as yet. However, the number in favour of abolition is steadily growing. It was just 16 countries in 1977 that abolished death penalty while the figure has now gone up to 104. Almost half of the world scrapped the death penalty either in law or in practice. And now it is the time for India to pledge against death penalty.

One has to remember that those opposed to death sentence are certainly not against awarding punishments to the criminals. If the guilty is proved after proper judicial procedures and police investigations, they can be punished in proportion to their crime. Further, an eye for an eye is medieval logic and death penalty stands as a remnant of that logic which seeks revenge against a criminal. Killing for killing cannot be regarded justice. It is high time that we sought abolition of death penalty as a civilized country.

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