If you believe in an eye for an eye , you're blind !

Earlier this year, the accused in the gruesome Nirbhaya rape case that shook the country, were hanged to death in Delhi’s Tihar Jail. Most people — rightists, leftists and everyone in between — hailed the execution as “justice finally being served”, “a victory for women’s rights”, and the government being “tough on crime”.

Naturally, these sentiments imply that the death penalty is an effective way to reduce crime, and the only way to provide justice to victims of heinous crimes. However, even a cursory glance at the facts tells us that not only is capital punishment a gross violation of human rights by the state, but also ineffective as a deterrent, and awarded far more often and more arbitrarily than one might think.

The death penalty in India can be awarded under the IPC, UAPA, Army Act, Navy Act, Air Force Act, Border Security Act, Defines Of India Act, Coast Guard Act, Geneva Convention Act, the Maharashtra/ Karnataka/Andhra Pradesh Control Of Organised Crime Act, etc.

Some of the crimes for which one can be given the death penalty include rape/gang-rape of a woman under 12 years of age, repeat offences in the case of rape or gang-rape, dacoity with murder, rape if it causes death or results in the persistent vegetative state, being party to a criminal conspiracy to commit a capital offence, among others. 

However, the death penalty is only supposed to be awarded in the rarest of rare cases, and when the alternative option is unquestionably foreclosed. Thus an offender can only be given the death penalty on passing a two-part test:

The case must be considered to be among the ‘rarest of rare’- it must belong to the most extreme category, be very seldom seen, and must tick all the parameters of heinousness, depravity, perversity, and cruelty. Furthermore, the person committing the offence themselves must exhibit extreme traits that are considered the rarest of rare. Their role in that particular crime must also be in the most extreme category. 

Secondly, the alternative option i.e life imprisonment must be unquestionably foreclosed, or considered far too inadequate a punishment for the crime committed.

One could argue that in such ‘rarest of rare’ cases it is justified to award the death penalty to an offender. However, research shows that this concept of awarding the death penalty only in the rarest cases is hardly put into practice. The death penalty is awarded very frequently. Trial courts give death sentences so often that several of them are eventually commuted to life imprisonment by appellate courts. But there is an even bigger problem: ‘rarest of rare’ is such an imprecise and nebulous concept that it has turned the death sentence into, as an Amnesty International report put it, a ‘lethal lottery’. The Supreme Court of India itself has admitted that the death sentence is handed out arbitrarily and whimsically; and that the awarding of the death sentence depends more on the personal predilections of the judge, than on the facts of the case. The fate of a prisoner thus depends on who the judge adjudicating happens to be. 

Source: Hindustan Times, Aparna Alluri, Seven Myths about the Death Penalty, Debunked.

Adding to the point that appellate courts often commute death sentences, not only do death row prisoners have their sentences commuted, but a large number of prisoners are acquitted; i.e people who were sentenced to death by trial courts are found to be innocent of all charges. Some of them had spent nearly a decade on death row. 

There are myriad reasons for situations such as these to arrive. We have the massive problem of public perception and media trials; what judges call the “collective consciousness of society”, which influences the judiciary. Taking into example the Nirbhaya case — it (rightly) created a nationwide uproar about the pathetic status of women in Indian society. The execution of the accused persons was no less than demanded by the public and in the media. The victim was popularly called “India’s Daughter” and when four of the accused were finally hanged it was seen as a win for not only the victim and her mother, but, for some reason, every Indian woman, when it is a fact that these four men being dead has not made the streets any safer for women, will not stop further violence against women, and it is laughable to believe that it has increased the worth or dignity of women in society. 

Then there is the issue of fabricated evidence. Evidence is routinely fabricated by the police. And there are reasons for that- “the police is overworked, underpaid, understaffed, and undertrained. They just don't have the time, the manpower, the capability, or the motivation to gather the evidence”, says Dr Yug Mohit Chaudhry, a criminal lawyer at Bombay High Court, and who leads the movement for the abolition of the death penalty in India. 

In a conversation we had with Dr Chaudhry, he spoke to us about a case from his own personal practice — that of Ankush Maruti Shinde & Ors v. State of Maharashtra. The case was an extremely heinous one of a robbery, rape, and murder. Five people had been killed, and two women among them had been raped. It was a sensational case that shook society- politicians and TV crews rushed to the spot. Predictably, there was massive pressure on the police to close the file, and they soon arrested six tribals from the area- the Shindes. It often so happens in cases of particularly violent and heinous crimes that the judicial senses get numbed due to natural revulsion with the facts of the case, and there is no proper scrutiny of the evidence. The Shindes were convicted by the Trial Court; the sentence was upheld by both the High Court and Supreme Court, and the Supreme Court even dismissed the Review Petition. It was then, when they were in imminent danger of execution that the Shindes came to Dr Chaudhry, who managed to keep them alive for ten years. Subsequently the Review Petition was re-heard, due to a technicality. At this point, the court calmly considered the evidence and realised this was a “completely bogus case” and they moved from one extreme of the spectrum from saying the Shindes were not only guilty but also deserving of the death sentence to the other extreme that not only are they not guilty but they have been falsely implicated, and deserve to be acquitted, and given a compensation of 5 lakh rupees each. 

It is but obvious that in a system like ours not everyone is given a fair shot at proving their innocence. The system is heavily biased in favour of the educated, upper class and upper caste. For example, in the case of Vyas Ram & Others. 

In Bihar, the Ranvir Sena, the armed militia of the upper caste Bhumihar community attacked a Dalit village and massacred a number of Dalits. In retaliation, the Dalits attacked a Bhumihar community and massacred a number of Bhumihars. What is interesting to note is that the Bhumihars were prosecuted under the Indian Penal Code, and the Dalits under TADA (Terrorist And Disruptive Activities [Prevention] Act). 

Most people on death row are from the lower socio-economic strata and cannot afford good lawyers. Their families cannot afford other things that contribute towards lesser sentences- expert witnesses, medical reports or any other evidence that weighs in their favour. In addition, the legal aid system is poorly paid and inefficient. 

One of the most common arguments used in favour of the death penalty is that it sets an example of intolerance towards heinous crimes and deters other people from committing them, more than life imprisonment. This is false. Not a single study has proved that the death penalty deters crime any more than life imprisonment. In fact, studies have shown the opposite — that the death penalty does not deter crime any more than life imprisonment. [for more info, see here] 

To deter someone from crime, there needs to be the simultaneous presence of three things —celerity (swiftness), severity, and certainty, of punishment. If one knows they will certainly be punished, be punished swiftly and not after a number of years, and punished with adequate severity, it is enough to deter them from committing crime. There is no need for an extremely harsh and extreme form of punishment that is only retributive in nature. 

Many believe that execution is the only way to provide justice to victims or victims’ families. Consider this: on an average there are about 35,000 homicides every year in India. Out of these around four are given the death sentence. [for more info, see here] However, one cannot make a case that the other 34,996 victims do not receive justice. Not awarding a death penalty does not equate justice being denied, or the accused being pardoned. Certainly the most heinous crimes do deserve the most severe punishment, but the fact remains that the most severe punishment does not have to be a death sentence.

The “life for a life” argument is bizarre in the view that homicide is the only case in which the punishment imitates the crime. For example, we do not rape rapists in order to punish them. Perpetrators of acid attacks do not have acid thrown on them in order to punish them. Our values, as a society, are not the same as those who commit the offence. If killing is wrong, it is wrong to kill anybody.

Aside from the evidence that the death penalty is not the best way to help the survivors, the huge costs the death penalty incurs is money that could be used instead to help families put their lives back together through counselling, restitution, crime victim hotlines, and other services addressing their needs. [see, here]

Morbid as it sounds, there is also the question of putting a price to a life- how much money per prisoner would taxpayers save if the prisoner were to simply be executed instead of being fed and housed for life? The answer may surprise you. Studies of the California death penalty system, the largest in the U.S, have found that a death sentence costs at least eighteen times as much as a life sentence without parole. [see, here] 

In India, the cost of keeping a prisoner alive for a year is approximately ₹20,000 per year (as of March 2020) which is less than the amount paid to the executioner. If we are to consider four death sentences a year, spending ₹20,000 on each for life imprisonment instead, it would save taxpayers a paltry ₹80,000 per year, which is not only a mere fraction of the prison budget, but also a low price to pay if we take into account that death row prisoners are often acquitted and the death sentence is not a reversible punishment. 

Coming to the one of the biggest buzzwords of our time- women’s rights. Capital punishment is not in line with either feminist values or international human rights. It is only in line with those who want a quick fix to the deep-seated problem of gendered violence, instead of engaging with the issue on more than just a superficial level.

Executing rapists is like putting a band-aid on a bullet wound. It does not address the rampant misogyny in society that gives rise to violence against women and gender minorities, in order to prevent this violence from occurring at all. Neither does it offer a productive solution to rehabilitate survivors, reform criminals, or deter potential offenders. Thus among the objectives of punishment- rehabilitation, reform, and retribution, it only fulfils the aim of retribution, which, in the larger picture, helps nobody.

The Nirbhaya case received extensive and sensational media coverage. Since rape cases are so common in India, they often do not make the headlines or send shock-waves throughout the country as the Nirbhaya case did. Perhaps this makes it seem that such violent and heinous rapes are a rare occurrence, but this couldn’t be further from the truth. Calling perpetrators “monsters” or “animals” encourages the false notion that that these cases are one-off incidents, that exist on the fringes of society, when in fact women and gender minorities face routine sexual violence throughout their lives, most often from men they know. Rapists and sexual offenders are a part of our society — a society with a staggering power imbalance and deep rooted systemic hatred towards women and gender minorities, especially those who belong to low caste and class groups. When we live in a society that normalises sexual violence and rape culture, it should not come as a surprise that cases as gruesome and vile as the Nirbhaya case will take place. By calling rapists “monsters” we seek to dissociate with them, absolve ourselves from being perpetrators of rape culture, and turn a blind eye to our collective responsibility of ending it. 

It is easy for the state to hang people and say it is “tough on crime” or that they care about women’s safety. If the state did care so much about women’s safety, it would take proactive measures to prevent sexual violence from happening at all, instead on focusing on retributive justice. If the state did care about women’s safety, marital rape, for example, would be recognised as rape and would be criminalised, and it is not. Rape and violence against women will only stop with a complete overhaul of the patriarchal society that we live in. This requires a societal change from its very roots, and administrative change, such as implementation of recommendations of the Verma Committee Report.

The Verma Committee was formed after the 2012 Nirbhaya case; and was tasked with reforming and invigorating the anti-rape law. After consulting students, NGOs, activists, lawyers, and judges, the Committee published a 600-page report. The report did not recommend hanging the rapists. When the Nirbhaya convicts were hanged, it wasn’t done to ensure the safety of women. It was done to exact our revenge as a society, and to hide our collective failure to do anything meaningful about the processes that cause sexual violence in our society. 

The Nirbhaya Fund that was created to implement recommendations of the Verma Committee Report lies virtually unused across the Central and State Governments. Further, by some estimates, a woman is raped in India every 20- 30 minutes [see, here]. That is an alarming number of men to put on death row. What is worse is the abysmal rate of conviction, thanks to shoddy police investigations and perpetrators with influential connections going scot-free. How, then, can one say that a handful of death penalties offers justice to women when the majority of offenders are not convicted, that too if the case is reported at all?

Not only is capital punishment a distraction that serves to take public attention away from governmental inaction on solving issues, it is also extremely dangerous and problematic when handed out in cases of non-homicidal rape i.e when the victim is raped but not murdered. 

An extremely disturbing statistic reveals to us that in nearly 90% of rape cases, the rapist is known to the victim. In its annual report of 2014, the National Crime Records Bureau (NCRB) found data that showed that 86% of rapes had been committed by close family members such as fathers, brothers and uncles, as well as neighbours, employers, co-workers and friends. The report indicated that 38% of rape victims were below the age of 18. 

In such cases, not only is it difficult for a survivor to report the rape, they are often discouraged from doing so since it could mean a potential death sentence for a family member or person known to them. 

Moreover, the death penalty in non-homicidal rape can prove deadly for victims. When Macaulay drafted the Indian Penal Code in 1860, he said that rape is one of the most heinous and despicable offences. And yet he chose not to give the death penalty for rape because it would incentivise the killing of the victim. If the punishment for rape is the same as the punishment for murder, the rapist is incentivised to kill the victim and also gains by getting rid of the evidence. Rape therefore has to be punished at a lower level than murder. 

By giving the death sentence to rapists, we also perpetuate the patriarchal notion that a woman whose "honour is gone", is "disgraced", is a dead woman. A woman is much more than merely her sexual identity. So therefore to say that the harm done in the case of rape is the same as murder is not correct. 

We also have the right-wing nationalists, who believe that the death penalty must be enforced in the name of national security. They probably do not realise that when we speak of “national security” it is not just the security of the State-the government, that is spoken of, but also the security of the citizens of the nation- the people. Thus, security can be compromised by an outside force, an inside force, or the government itself infringing on the security of the people, when they locate a convenient scapegoat to brand as a terrorist (which we see only too often these days as students and activists are charged under the UAPA left, right, and centre). 

Dr Chaudhry says, “‘National security’ has become a kind of mantra which silences scrutiny, we see it a lot in terror trials”. In the case of terrorism, there is a strong public desire to nab and prosecute the perpetrators. The police are under pressure to find someone to book and close the case; and what follows is a desperate attempt to fabricate evidence. You can read about some examples here. 

In the 1999 Kandahar hijacking case, a Pakistan-based Islamist terror organisation hijacked an Air India flight en route from Nepal to Delhi, holding passengers hostage until Islamist prisoners were released from Indian jails. The question thus arises- shouldn’t prisoners like Pakistani terrorist Kasab be executed to prevent such situations from arising? The catch is that a hostage situation would necessitate that a prisoner be executed instantaneously, without due investigation, trial or appeal. The longer the prisoner is kept alive, the more the chances of a hostage situation increase. The very arrest of the prisoner gives rise to potentiality for a hostage situation, and therefore he must be executed as soon as he is arrested. And this means he must be executed simply on the unverified and untested claims made by a mere police constable, when the police are known for being corrupt and undertrained. Are we prepared to put life and death in the hands of a mere police constable? Is it safe or practical to give the power that currently resides only with the judiciary, to the police? Are we ready to pay any price for national security, a price that could be borne by ordinary citizens of the country? When we put security on such a high pedestal, it means giving up our freedom and having to live in a constant state of fear. And security without liberty is of no value. 

Finally, we come to the simple fact that killing people is wrong. Killing people who have killed people, to prove the point that killing people is wrong, is undeniably bizarre. Death sentences are nothing more than state-sanctioned murder; the ultimate form of violence- the State executing its own citizens. What is perhaps worse is the way in which it is done- not in a moment of passion, or anger, or insanity, but a premeditated, planned, deliberate murder that goes through routine procedures — conviction by a trial court, confirmation by the High Court, Supreme Court, the Review Petition, Mercy Petition — and we think this is perfectly acceptable! And after the prisoners are hanged to death, there is no objective benefit reaped by society, that could not be gained by life imprisonment, just the satisfaction of a primal urge for vengeance. 

When the state is authorised to kill, when violence against citizens is validated, on some level it assures state functionaries like the police that it is ok to kill. It is therefore no surprise that in countries that do have capital punishment, there is a greater incidence of extra-judicial killings – by the police, by the military, and there is a greater amount of torture in custody. 

Often in the debate against capital punishment people in favour say that if someone committed murder or rape against their loved ones they would want to kill that person. This is a false equivalence. Citizens killing each other, while also obviously wrong, is a totally different ballgame from the state killing citizens. Abolition of the death penalty simply means that we turn into a more humane and rational society. We are desensitised and bloodthirsty as a society to advocate for capital punishment when there are no objective reasons to do so. The state having the power to take away life is the paramount symbol of its power - and it must be abolished.