Gopalkrishna Gandhi on why India should abolish death penalty
[Book extract] Capital punishment is a macabre folly that swings between tragedy and idiocy.
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When a man kills he breaks the law. When the state punishes by death it upholds the law.
The man murders, the state executes; one deals death, the other awards it. Murder extinguishes life; the death penalty annuls the right to stay alive. The purposes are different but the result identical — a corpse where a human being was.
The death penalty is about death. It has been called "judicial murder".
The term is not quite fair, for the courts have an obligation to follow the rule book and are obliged to pass sentence based on the evidence adduced before them. And if guilt is established, it brings with it, as it were, a prescribed sentence which has only to be pronounced. Indian courts have been careful in their adherence to the law, giving retributivism and deterrence their full play at the lower tiers, circumstantial breadth and consideration when appeals get to be heard at mid-level, and high jurisprudential evaluation at work at the final appellate hearings at the Supreme Court of India.
There the growing body of case law shows an intimate understanding of criminology, an awareness of the evolving world trends in penology and, finally, a sense of the death penalty’s journey along the signposts towards abolition, with a keen attuning of pronouncements with the thinking of India’s successive Law Commissions.
In this tragedy the "original offence" comprises Act I; the convicting and sentencing form Act II. This is followed by Act III in which a petition is filed for mercy, a word imbued with grace, or clemency, an act imbued with authority. But more exactly, the petition is for the commutation of the death sentence to one of life sentence, or a lifetime in prison.
In India, after the state’s judicial arm has done its work, the condemned person invariably petitions the head of state for commutation. The state’s constitutional fingers then turn the pages of the case to see if at the intersections of law and justice, crime and society, intention and action, there is something, anything at all, to entitle the sentenced one release from the noose.
The post-court study of a death penalty case in Act III of the tragedy is finally done by the president, acting under the advice of the government.
The Constitution of India has made it clear, and the courts have confirmed the position, that the president cannot overrule governmental advice. This means, effectively, that when the government’s advice is received by the president on any matter, he may study it with care, and at whatever speed he likes, even expressing doubt or disagreement with it, seeking clarifications should he wish to, but, essentially, he has to act in accordance with it.
Gopalkrishna Gandhi, a retired IAS officer, diplomat and former West Bengal governor, is the UPA nominee for Vice-President of India.
This "binding" provision of Article 74 of the Constitution obligates him in death penalty cases to go by the advice of the ministries concerned — Law, Justice, Home, with the prime minister coming into the picture with such degrees of "mind application" as he may wish to bestow on it.
This arrangement is, of course, based on the British model, where the Crown but lends its name to the government’s decisions. Does this make the president a mere rubber stamp? The answer is, of course, yes, but the truth is larger than answers. So what, one might ask, in Pontius Pilate style, is the truth? Simply this: rubber stamps do not necessarily come with rubber handholds. They can be made of firm wood and, sometimes, even steel. And they can choose to use their own, not the "state issued", inking pad of unvarying magenta.
A president can accept without demur the government’s advice on whether the petitioner, namely, the person sentenced to death and now appealing for mercy, should hang or have his sentence commuted to life imprisonment. Or, the president can if he so wishes to, ask questions, make comments and seek clarifications before he confirms the death penalty awarded by the courts and concurred with by the government, or dilutes it to life imprisonment.
When he asks sound questions that go against the government’s advice, it is perfectly possible that he can occasion some rethinking in the government and actually change the course of the case. What does this really amount to? Just this, that the advice of the government on a mercy petition is, at best, an opinion, even a strong opinion.
A recommendation, even a strongly-worded one, is a decision in the making, even a foregone decision in the making, but is not yet the final decision. And between the firm advice and the final decision can fall the shadow of another opinion, a query, a suggestion from the president’s mind which reverses the flow and causes the advice given to be looked at again, in the light of the "presidential point".
This is not suggested to make that "point" an extra tip; it is to suggest that on a matter as grave as the taking of a person’s life, a sequence of second and third thoughts is not only valid but ineluctable. Some presidents have not troubled the government with second thoughts, others have.
To give evaluations and revaluations a chance to excavate the ingredients of a death penalty case is not an act of procrastination but of responsibility. It is both wise and humble. To not do so is unwise and arrogant. It is also callous.
Beyond the quadrangles of law, mercy can act and the sentence of death can get commuted to one of lifelong imprisonment. The order of the president in a mercy petition is a post-judicial loosening or tightening of the noose, leading to a commutation of the death sentence to life imprisonment or to hanging. But can that discretion be vested in any individual, with all his or her human variabilities, predispositions and fallibilities?
If the option were between punishments that are reparable, retractable, reversible, the position would be different. But when the option is as irreparable, irremediable, irreversible as death, can any human agency in a democratic republic be trusted with it? Should a petition for clemency be left to the clement heart or the inclement mind of one person, even if that person be the President of the Republic?
This is "the truth", not in the shape of an answer but in the form of a counter-question. When the death penalty is confirmed, what had been called "judicial murder" becomes a constitutional and administrative murder. Albert Camus, a great death penalty abolitionist, has, in his masterly essay "Reflections on the Guillotine" (1957), in fact called it just that. When the hangman finally pulls the rope or opens the hatch, he does so in the name of the law and of the larger scheme of life as our Constitution has drawn it.
Ending the death penalty will not just be nobly clement but wholly and supremely and incontestably intelligent.
But there is more to the death penalty than a "judicial or an administrative murder". And that has to do with a hinterland of views, predilections and considerations that find their way into, what can be called, the sociology and politics of capital crime. Politics do not ordinarily enter death penalty proceedings up front. And in the ordinary sense of the word, not at all. But in India, as elsewhere, the head of government, namely the prime minister, is by definition a political being. The head of state, namely the president, be he or she from a political or a non-political background, holding elective office, is also ipso facto, while in that office, a political entity.
It only follows that the advising prime minister and the advised president cannot overlook the sociology of politics and the psychology of public opinion that broods over a death penalty case. The community of the one sentenced, the background of the one killed, the social interest in the case, the political implication of hanging or not hanging the person — all these factors are unconnected with the law but they are vitally related to a political society. And these get to be weighed into the death penalty consideration.
The courts cannot look at considerations bar the legal. The prime minister and the president cannot afford not to. The courts hold the scales of justice to weigh crime against punishment. The prime minister and the president hold the balance of power to weigh sentence against consequence.
In its last and most defining and irreversible stage a death penalty case gets to be scrutinised for its wider, non-judicial ramifications, by politically wired brains. The death sentence when implemented is not a coin made of law’s pure gold but an alloy, in fact, a coarse alloy of many ores, of high, medium and low grade, that have passed through the smelteries of reason, emotion, pride, prejudice, a state’s hubris, a society’s moods that swing between pity for the victim and rage at the culprit in an unspooling of feelings that are as old as that of the Plebeians who ran amok in 44 BCE in Rome following Caesar’s assassination and killed Cinna the poet mistaking him for Cinna the assassin, the mob that bayed for Christ’s blood in Judea around 29 CE and all those "popular" upsurges down the centuries right down to our times demanding the death of men believed to have done harm to society and nation. And so the death penalty is also, somewhere in its DNA, a political murder. This is said not to debase lawfully passed sentences of death, but only to describe the syndrome in the fullness of its construction.
A sharply magnifying political lens is now getting used for the politically charged crime of crimes — terrorism. To the traditional formulations of "war against the state" and "treason" are now added contemporary high-tech and high-strategy forms of the old monstrosity of terrorism, sometimes accompanied by deliberate mass murders, sometimes by collateral homicide and by assassinations. The old familiar murder caused by passion, greed or perversity is now the poor cousin of the group murders of innocent men, women and children at the hands of terrorists speaking for a cause or a group, a movement, an affinity or an aversion, a hate. The nightmare of society and of governments, this is taking place all over the world often at the hands of non-nationals, unleashing sentiments of patriotic rage, nationalist revenge and turf pride. It demands retribution.
Retribution is a tangible act for an intangible relief. It can be wrenched tangibly from persons or institutions but its end in terms of relief is the intangible compensation for tangible losses. That sense of relief, of "justice has been done", is a property of the undemarcated dominion of the human heart. The concepts and the emotions of attachment, deprivation and compensation have been interiorised in penologies that affirm retribution as valid and those that discount and discourage it.
A question which in our terrorism-scourged times demands attention is: If an aggrieved section of humanity can turn aggressive and maul another section of humanity, cannot the receiving side be entitled to the relief of retribution? In other words, are the USA, France, Russia, China, India, Pakistan and other nations that have been the targets of terror attacks not entitled or justified as collectivities of affected people in seeking retribution through retaliation?
That question is taken up for some reflection in the chapter "Of Capital Treason". So the journey of the death penalty in a terrorism case also becomes, somewhere along its meandering course to the gallows, a matter of collective public concern. A terrorist when executed quenches a public thirst and his hanging, though conducted behind prison walls, takes on the aspect of an old-style public execution. The executions in India of Ajmal Kasab (21 November 2012, Pune), Afzal Guru (9 February 2013, Delhi) and Yakub Memon (30 July 2015, Nagpur) could not be watched by the public but they were as closely followed in the media as an India-Pakistan cricket match would be.
When executions were until not so long ago routinely carried out in public, the actual act was a public spectacle. Charles Dickens, William Makepeace Thackeray, Arthur Koestler and Camus are among the many who have written of the revulsion they felt on witnessing an execution. George Orwell’s essay "A Hanging" (1931) is a classic of bare description that takes the hood off the scaffold. But not every witness of executions suffered revulsion. Accounts have recorded the witnesses’ perverse and even prurient enjoyment of the spectacle provided by this public termination of an individual’s life. And there are many records, not all of them ancient or medieval, of executioners deriving a sadistic pleasure in the performance of their task.
The prevailing social attitude to the death penalty in India, coloured by revulsion over the 2012 gang rape of Nirbhaya (as she came to be called by the media) and rage over terrorist attacks cannot but influence, in less or more degree, the institutions of the state and those at its helm. While leaders can let the winds of opinion blow them off their feet, a few have tilted against the windmills of popular predilections.
François Mitterrand, trying after two failed attempts, in 1981, to contest for the office of President of France, declared himself, with the encouragement of the fervent abolitionist Robert Badinter, to be against the death penalty. This could well have brought him, in "guillotine France", his third failure. But, praise be to his tenacity and France’s perspicacity, it did not. One of the first things that President Mitterrand did on assuming office was to sign the abolition of capital punishment bill, making France the last European nation to abolish the death penalty.
On another continent, Nelson Mandela, likewise, stood rock-firm in his opposition to the death penalty. Under apartheid, the death penalty had been applied much more to blacks than to whites and Mandela could well have decided to keep the penalty alive and "return the compliment". But Mandela being Mandela said the death penalty was "a reflection of the animal instinct still in human beings" and as president of the new rainbow nation, invited it to look beyond the temptations of vengeance and the taste of vendetta. For a start, he asked his Cabinet to decide on abolishing the death penalty as a moral issue. But the Cabinet, comprising his own colleagues in the struggle, was unsure. It remitted the matter to the new Constitution Court which, under the sagacious chairmanship of Justice Arthur Chaskalson, gave, in 1995, the historic ruling that the death penalty was indeed unconstitutional.
The court’s unanimous decision of 7 June 1995 stated, "Everyone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional... Retribution cannot be accorded the same weight under our Constitution as the right to life and dignity. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be."
The African National Congress applauded the death penalty ruling, saying, "never, never and never again must citizens of our country be subjected to the barbaric practice of capital punishment".
Both those political statesmen, Mitterrand and Mandela, greatly assisted by two non-political judicial intellects, Badinter and Chaskalson, led rather than allowed themselves to be led by inconstant public opinion. But more often, leaders and institutions move along the grain of prevailing public opinion. This is seen — and explained — as a sign of being democratic when in reality, it is a sign of moral unventuresomeness and intellectual feebleness.
The United States of America is a case in point. New York University School of Law’s Professor Anthony G Amsterdam, described as "the most extraordinary legal mind", has this to say of his country: "Our political and legal machines today are obsessed with the symbolic image of the victim — largely portrayed as white, middle class, mainstream, deserving, and desperately endangered — with the danger portrayed as predatory, parasitic, wilfully jobless, promiscuously multiplying people of colour. So, it is little wonder that American governments administer their criminal systems like colonial penal colonies."
Abolishing the Death Penalty: Why India Should Say No to Capital Punishment; Aleph Books; Rs 270.
The attack on July 22, 2011 on government buildings, innocent civilians and members of a youth league on camp near Oslo, Norway, in a "lone wolf" operation killed 77 people and filled that Scandinavian population with horror. Norway has long abolished the death penalty. It had brought it back, briefly and bitterly, after World War II when Norway’s Nazi dictator Vidkun Quisling was executed by a firing squad. But, that done, abolition was reintroduced. The world would not have been surprised if an exception had been contemplated once again after the monstrous act of Anders Behring Breivik, the 32-year old right-winger, and the death penalty had been contemplated once again. But the derangement of the perpetrator and Norway’s deeply entrenched abolitionism guaranteed the status quo. Breivik was sentenced to 21 years (the maximum in Norway) with a provision for the imprisonment being extended, if necessary.
A superficial view holds that advanced countries can be so evolved as to abolish the death penalty and countries not so developed need that punishment on their statute books to keep heinous crime in check. The USA, an advanced country, is yet to abolish the death penalty. Latin America, which does not belong to what used to be called the First World, has abolished it. Of the 140 countries in the world that have abolished the death penalty, there are several that are not "advanced" countries. And among the countries that have not abolished it is, as we have seen, the world’s only superpower, the United States of America. The country that ranks first in the 2015 Human Development Index, Norway, and the country that ranks lowest in it, Burundi, have both abolished the death penalty comprehensively.
Abolition is not about being advanced materially, socially or jurisprudentially. It is about not being backward civilisationally. The following pages argue for the death penalty’s abolition not just because it is another form of murder, which is a criminal offence, but also because it is a shame, one among the many shames that sully the enforcement of laws in their penal application. The death penalty must be abolished not only because it is a shame, but as part of a larger redemption of the miasmic world of criminal investigation that treats the suspect as a "property" over which it has jurisdiction, a "body" available to it for pummelling, physical and mental.
"Abolitionists" was a term used very particularly for those who wanted an abolition of slavery during the American Civil War (1861–1865). And even as the Lincoln-led abolition went beyond the liberation of slaves to what was described as emancipation, so too must the work of abolitionists of the death penalty in India move beyond an amendment to the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC). It has to — in logic and in law, in meaning and in method, in style and in spirit — lead to an emancipation of India’s criminology from the vice-like grip of arbitrariness and whimsy at the investigation and trial stage, of the "third degree" then and later, and a crude, crass and criminal brutalisation of the suspect, the accused, and the convict.
It has to encompass the issue of physical abuse and killing as a response from the state wherever it occurs outside the theatre of a declared war. It has to confront the use of force by military and para-military personnel on civilians and on the suspected or accused and, very specially, on the bizarre phenomenon of "encounter killings". And in doing so, abolitionism has to site its demand for the abolition of the death penalty beyond penology, which gives the state a whole list of dos to a new methodology of don’ts where torture and killing cannot and do not get indemnified by a nation state’s wanton jurisdiction over crime and punishment. The death penalty sits like a spoilt offspring on the highest rock in that jurisdiction.
To quote Amartya Sen from his powerful statement that he issued in August 2013, "The approach of death penalty is foundationally misconceived". Cruel in its operation, ineffectual as deterrence, unequal in its application in an uneven society, liable like any punishment to be in error but incorrigibly so, the death penalty compounds these grievous flaws by yet another. It leaves the sentiment for retribution — cited as a primary "good" the penalty does — unrequited by creating new thirsts for the same sentiment.
The pioneering 2016 "Death Penalty India Report" by the National Law University, Delhi, has added a further dimension to our understanding of the inequity of capital punishment in India. It has shown, with statistics culled from a study of death row prisoners in India, that "prisoners sentenced to death in this country were almost always poor and belonged to the marginalised sections of society".
The death penalty is a macabre folly that swings between tragedy and idiocy. Its continuance is not just unimaginably evil, but sovereignly stupid; its termination will not just be nobly clement but wholly and supremely and incontestably intelligent.
(Re-printed with the publisher's permission.)