Questionnaire on Capital Punishment

On 23 May 2014, the Law Commission of India has released a Consultation Paper on Capital Punishment. At the end of the paper, there is a questionnaire seeking views of the citizens of India on whether capital punishment should be retained or abolished in India. The Law Commission has given a window of 30 days (from the date of release of the above-mentioned paper) to the citizens to send their responses. The relevant information can be gathered from their website <http://lawcommissionofindia.nic.in/>.

Here's what I have sent as my response (the skipping of response numbers 2 and 3 is due to the nature of the questionnaire):

1.  I am not in favour of retention of capital punishment.

4.  Reasons for the abolition of capital punishment:

a. There is no conclusive proof that capital punishment acts as a deterrent for future crimes

b.  Capital punishment confuses the idea of retribution with justice and  society must move away from the conception of "an eye for an eye"

c.   Capital Punishment deprives people of the opportunity to reform

d.  Economically and socially backward groups will always have greater  chance of being subjected to capital punishment than the rich

e.   Capital Punishment is a form of state sponsored violence

f.   The State that has criminalized euthanasia as a form of suicide and hasn't permitted an individual to take his/her own life doesn't have any moral sanction (under the facade of bringing deterrence and imposition of law and order) to snatch away a criminal's right to life. If fake-encounter killings (State-action) are abhorred by human rights activists as well as sections of the media, the "perceived consent of the society" to permit homicide of a criminal (death penalty) is equally deplorable.  The Supreme Court has, time and again, re-interpreted Article 21 of the Constitution of India to mean a right to live with human dignity. It is unfathomable why the right to bodily life should be snatched away even if by the procedure established under law.

As has been said above, "an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot" can only create a disabled society. While the emotional appeals of the victim's/victims' families has to be listened to, it doesn't make sense to say that hanging a person by the neck/execution using poison/killing by a firing squad would bring any relief to the kith and kin of the victim(s). India doesn't hold its foreign policy—in inviting Pakistan's Prime Minister (PM) to the swearing-in ceremony of the Indian PM designate—captive to the emotional displeasure of the wife of a soldier allegedly beheaded by the Pakistan Army along the Line of Control. In the same manner, the Indian State should not get moved by jingoistic calls of capital punishment based on retribution.

Furthermore, what sanction the society has to determine whether or not a person has a scope for reformation is beyond my comprehension.

Another criticism that can be leveled against the abolition of death penalty is that it may cause an economic strain to the country to keep criminals within prisons for the rest of their life. It may be noted that when there's enough money in the country for a few individuals to pay 70 lakh rupees monthly electricity bills and for governments to provide subsidies to several unintended beneficiaries, there's certainly enough money to maintain the human capital in the country. Further, as experiments of vocational educational and work in Tihar Jail suggest, prisons are not just a source of disciplining. They can be a source of creativity and can add to the material well-being of the society as well. Hannah Arendt's concept of banality of evil has to be considered while any trial is being conducted by a court of law.

5.  As such, there is no evidence of capital punishment acting as a deterrent for crimes. The Shakti Mills gang-rape (counted as "rarest of rare" by a judge) incident of Mumbai was perpetrated long after the 16 December 2012 Delhi gang-rape case (again, a "rarest of rare" case) trial had begun. In addition, many incidents of gang-rape against dalit victims have been reported after capital punishment was awarded to the convicts of these "rarest of rare" cases. Given the extensive reach of the print media, it seems improbable that the news about these two (the 16 December case and the Shakti Mills case) verdicts would not have reached the ears of the perpetrators of crimes that were committed post the 16 December case verdict date. The presence of heinous crimes against women as well as terrorist acts point towards deeper problems in the society, e.g., poor socio-economic conditions, inequality, disillusioned youth, alienation by the State. Thus, imprisonment for full life can attain the very same objectives of deterrence as are envisaged by the society.

6.  The Criminal Law Amendment Act was made a victim to the populist stance adopted by the government as well as various political parties after a great deal of jingoism took on the streets. While awareness in the civil society is essential, the absence of such awareness in incidents of gang-rape being perpetrated against lower-caste victims in backward regions of the country clearly outline an urban bias present in the society as well as the media. The (late) Justice J.S. Verma Committee had recommended the abolition of the death penalty and that is the stand I personally subscribe to.

7.  In my opinion, homicide may be incidental or may even be the outcome of an act of self-defence. When such cases are not counted by the judiciary as "rarest of rare" and sometimes the accused are even set free in such cases, it is clear that murder cannot be equated with acts of terrorism.

8.  In my opinion, it isn't possible to categorize murders in such manner as to warrant the award of capital punishment to the convicts.

9.  I do not subscribe to the view that under normal circumstances the punishment of life imprisonment is adequate for murder but under aggravating circumstances, the Court may award death penalty.

10. Although a country may devise certain parameters to categorize offences into terror offences and non-terror offences, such a category may not be free of subjectivity and bias. In my opinion, capital punishment should be abolished for both the cases. Instead, systemic failures that give rise to heinous crimes should be curbed. While the supporters of retention of capital punishment may give the examples of Islamic countries of the Middle East in that heinous crimes are minimized if strict physical punishment is meted out, India doesn't necessarily need to follow such examples because such countries mostly don't have democratic political systems, which the Union of India swears by.

11. I think that the existing framework of police investigation and collection of evidence requires reforms to substantially reduce erroneous convictions. The use of Information, Communication and Technology (ICT) is one of the positive steps that have been taken in this direction.

12. My opinion is based on the ideological opposition to capital punishment. Hence, there is no scope for talking about more proof or less proof for different categories of crimes.

13. Yes, the award of capital punishment does have the risk of being judge-centric. Given that the conduct of judges of the High Courts and the Supreme Court is not to be discussed and debated upon in any legislative body and given that these legislative bodies are themselves prone to populist bent, there is a risk (howsoever small it may be) of judges getting influenced by pressure from society or of judges getting carried away by their inherent bias.

14. There should be a provision for rehabilitation of families of criminals sentenced to death until now provided that the convict was the lone breadwinner of the family and the family belongs to the lower rung of the socio-economic ladder.

15. There have been reports that in the US, there were delays in the execution even by poisonous injection. Such delays caused an inhuman treatment to the convict. Capital punishment itself should be abolished, leave aside the question of any other mode of imposing the death penalty.

16. No, there should not be any guidelines laid down for the President and the Governor to exercise their powers of granting mercy under the Constitution of India in death penalty cases. This is because such guidelines would again be vulnerable to subjectivity. Further, there should not be any time-limit for the President to decide on the cases of mercy petition being submitted to him. If status quo were to be maintained, this pocket veto would leave a scope for the President to not give his/her consent for the execution.