Every year, trial courts in India award dozens of death sentences. Many of these eventually get commuted to life sentences. You don’t hear much clamour to hang these people. You don’t see outrage on the streets. You don’t see national TV channels interview the family of the victims in these cases on a daily basis.
Here’s the data: Between 2000 and 2014, Indian courts sentenced 1,810 people to death, according to Project 39A of the National Law University in Delhi. More than half of these were commuted to life imprisonment by the courts. A quarter of the convicts were acquitted (such as former Gujarat minister Maya Kodnani). Of these hundreds of cases, only the high-profile ones seem to actually meet the hangman.
Yet, the 2012 December Delhi gangrape case, commonly known as the Nirbhaya case, is different. It is a high-profile case. It ‘shocked the conscience of the nation’. And so, the men who raped and killed must be hanged. Can we please hang them before 8 February? There’s an election in Delhi and the BJP would like to show an achievement.
So, the Narendra Modi government is very unhappy that something as serious as taking away people’s lives can be delayed by a few days because the convicts want to make a case to not be hanged, to live unhappy prison lives instead.
Rarest of the not-so-rare
There’s something obscene and rotten about the death penalty in India.
We don’t discuss or debate it because the Right-wing accuses us of defending rape, murder, terrorism if we oppose the death penalty.
No, opposing the death penalty does not imply defending the unspeakable horrors inflicted by death row convicts. It is not a debate over crime, but over justice. What is justice? What is just punishment? What do we speak of when we speak of justice and punishment?
After Afzal Guru, Ajmal Kasab and Yakub Memon were hanged, next are the ‘Nirbhaya’ killers. Does it strike anyone that only high-profile criminals are getting executed? That alone should be grounds enough to not hang Nirbhaya’s killers. There are so many cases of gangrape and murder out there, but only these four are to be hanged.
According to the Supreme Court of India, the death penalty is to be given in the “rarest of the rare” cases. How rarest of the rare is gangrape followed by murder? Do you hear anyone clamour for the death penalty for the Kathua rapists? Do you see the victim’s family being interviewed every day?
Cases of rape-and-murder have been rising along with the number of death sentences given by courts. Despite widespread awareness that there could be a death penalty in such cases, rapists seem to be killing their victims more frequently. That’s because, many fear, the death penalty is the biggest incentive to murder. They don’t want the victim to stay alive and file a complaint or give a testimony in court.
The certainty of punishment rather than the degree of punishment will deter more crimes. Most state governments are yet to set-up fast-track courts for sexual offences. They don’t have money, they say. Hanging the Delhi rapists and murderers will satisfy our bloodlust, but it won’t make justice any faster.
If killing the killers is justice, why don’t we argue for raping the rapists, robbing the thieves, setting on fire the houses of arsonists?
The ugly truth about the death penalty in India is that it is a political tool. The politically embattled UPA-2 government hanged Afzal Guru and Ajmal Kasab to show that it was a strong government. Guru was not hanged for years but suddenly, national politics found an opportune time to do it.
Now, it turns out that there may be some doubt over whether Afzal Guru really deserved to die. He had claimed that he did whatever he did on the behest of a Jammu and Kashmir police officer. In 2020, the same police officer, Davinder Singh, was arrested ferrying terrorists.
We can’t make that police officer confront Afzal Guru face-to-face today because Afzal Guru is dead. That’s the thing about the death penalty. It can’t be undone.
There have been cases where the Supreme Court has, many years later, admitted mistakes in awarding the death penalty. In 2009 the Supreme Court admitted it had wrongly sentenced to death 15 people over 15 years.
If there’s a mistake in awarding life sentence to someone, you can undo that mistake, release the person, perhaps even give compensation. How do you undo death?
Civilised ways of seeking closure
In a country where Maya Kodnani gets acquitted and a cop accused of being Afzal Guru’s handler goes unquestioned, the death penalty is a bad joke. Across the world, 102 countries have completely abolished the death penalty. And some more have abolished it in practice.
The countries that have death penalty are countries India usually doesn’t like to be clubbed with. Except for the US, they are mostly not democracies. It is time we had a debate over abolition.
Supporters of the death penalty will often say, what if it was your sister? Families of victims don’t get to decide what is just punishment. That is for a society to decide together. And yes, closure is important. But the death penalty is not the only way families of victims can achieve closure. There are more civilised ways to do that.
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