An eye for an eye will make the whole world blind: Mahatma Gandhi
As expected, the recent hanging of the four condemned persons in the Nirbhaya gang rape has evoked mixed reactions from within and outside of India. Many within the country celebrate the execution, calling it "an exemplary punishment". In stark contrast, a good number of people with liberal views at home and global organizations such as Amnesty International, the International Commission of Jurists and the United Nations are quite critical of the hangings that hogged the headlines across India. Considering all this, it now becomes necessary to study and understand the impact of the closing of the sensational case on our psyche vis-a -vis the contemporary judicial system.
Let me begin with my own first-hand experience. I was among those who were present when the Hon`ble Supreme Court gave the historic midnight verdict. Standing next to the victim`s mother, I instantaneously welcomed and celebrated the judgment. "The court has refused to interfere," I yelled, almost ecstatically.
Within moments, I found myself at odds with my own feelings. Deep inside, I felt I had begun to grapple with a very serious question: Will crimes cease to take place in society with the end of the lives of the guilty? A quick look at the country's crime chart after the hangings answers in the negative. Incidents of rape and murder have not stopped, even in times of Covid-19 scare. After the hangings, for example, a 53-years-old man in Nagpur was held for allegedly raping his minor daughter. In Noida, a youth was caught on charges of raping and killing his cousin, an eight-year-old girl.
Another question that comes to mind is whether the system of punishment based on the ancient Greek criminal jurisprudence of vengeance – an eye for an eye and a tooth for a tooth- is enough to stop crimes. As proud citizens of the world`s largest democracy, we accept our Constitution as the supreme law of the land. Our Constitution guarantees protection of the rights of every individual, including those of the accused and convicts. It strikes a balance between the rights of society and the rights of convicts. In my view, there is nothing wrong in awarding death penalties, but only till it serves as a "continuous deterrence in society" by following the adequate "procedure established by law".
If one looks at the data published by the National Crime Record Bureau (NCRB) in 2019, one comes across an escalation of reported rape and murder cases by 31% from the year 2017 to 2018, and which continues to rise every day. Further, the NCRB`s 2017 report shows that there is an 100% increase in the data of "rape per hour cases" from two in 2007 to four in 2016. There are other reports as well which confirm a continuous surge in crimes even after the awarding and execution of capital punishments. These instances are enough to make many of us conclude that such punishments have failed to deter people from committing crimes.
The next question is how to deal with the ineffectiveness of the "deterrence aspect" of the system of punishment. It is the state's bounden duty to comply with the "procedures established by law" before executing any punishment. This, in other words, fully supports an individual's right to a free and fair trial based purely on the principles of law and not to be prejudiced by the dominant public opinion, including the media. The validity of the capital punishment, especially its irreversible nature, is a serious threat to the justice system and to the inherent right to life of an individual. Even in the most adept legal system with robust judicial safeguards, there are possibilities of the miscarriage of justice. One apt example of this is the recent judgment given by the Hon`ble Supreme Court in the case of Ankush Maruti Shinde and (five) others versus The State of Maharashtra (5th March 2019), wherein the Hon`ble Supreme Court acquitted all six convicts on death row by recalling it's 2009 judgment that affirmed the death sentence for all of them.
Apart from the possibility of miscarriage of justice, there is an evident dearth of the uniform application of the principles of law governing the awarding of capital punishments. Judges, who pronounce death sentences, are human beings who live in society and who have their own set of emotions, perceptions, culture and traditions that may play an important role in shaping their thinking. This is one reason why opinions often vary in the world of jurisprudence in relation to capital punishment. The continuous evolution of the jurisprudential aspect of death penalty - from removing the requirement of giving 'special reasons' for imposing life imprisonment instead of death in 1955, to requiring special reasons for imposing death penalty in 1973, to limiting the death penalty in only the 'Rarest of Rare' cases and to the present times when the court raises concerns about "the arbitrary and freakish" imposition of death penalties. The risk of miscarriage of justice and the absence of uniform principles governing the imposition of capital punishment makes "vulnerable" the very democratic and justice doctrine that makes us all collectively culpable for the imposition such punishments.
The purpose of penology in today`s democratic society should bend towards reformation and rehabilitation. The Hon`ble Supreme Court endorses this view in a catena of judgments that before awarding a capital punishment, the factors of reformation and rehabilitation must be considered. Such a consideration requires an adjudication of the report from prison authorities on the conduct of the condemned person. Further, it will be extremely bizarre to absolutely reject the possibility of a convict getting rehabilitated or reformed. The same view can be seen in the incorporation of the Model Prison Manual, 2016 (2016 manual) for the overall development of the prisoners, which received approval of the ministry of home affairs. Chapter 14 of the 2016 manual deals with reformative measures such as physical education (yoga and other forms of exercise) for convicts and their mental development in the field of health, hygiene, moral and spiritual education. All this can significantly contribute to the reformation of prisoners if jail authorities implement them in letter and spirit and prepare proper progress reports.
I am of the view that a life sentence can be a more effective deterrent than a death punishment if we use it as an opportunity to reform the guilty, morally and mentally. Execution may only take away the life of a convict, but his life-long incarceration will serve as an example of the price that every offender must pay till his death. Memories of execution evaporate quickly but life imprisonment symbolizes the umbilical relationship between crime and punishment for a very long time. This, in other words, rejects the claim that capital punishment is needed to keep society safe from criminals.
To conclude, there is a strong need for us to understand that justice is fundamentally different from vengeance. Death penalties may only fulfil the emotional need of vengeance or revenge, but they cannot be a weapon to end crimes. They may even entangle society in the vicious cycle of stealing from the stealer, torturing the torturer and raping the rapist. Regeneration of hope and confidence reinforces the foundation of society; revenge rattles both human minds and souls all the time.
Views are personal Only.
(Mr. Manik Sethi is an advocate practicing in the Supreme Court of India.)