Who Deserves to Die? A Reading List on the Death Penalty

A black warrant was issued by the Delhi High Court against the four accused of raping Jyoti Singh in Delhi on 16 December 2012. As per the warrant, the accused were to be hanged at Tihar on 22 January at 7 am.  Two of the accused had filed curative petitions to plea against the death penalty, however, these have been dismissed by the Supreme Court on 14 January 2020. Now, the hanging has been delayed owing to a mercy petition filed by one of the accused.

The last time that India had carried out a judicial execution was in 2015, with the hanging of Yakub Memon. Before that, it was Afzal Guru in 2013. Even though over two-thirds of the countries over the world have done away with the death penalty, India has not called for the abolition of capital punishment. Though India is not among the countries that have the highest number of death sentences in recent years, according to a BBC report  based on the National Law School, Delhi, and Amnesty International data suggests that the number has been rising. 

In 2017, seven people in India had been executed, as per the Supreme Court, while in 2018, 162 people were sentenced to death by trial courts in India. While most of these sentences get commuted to incarceration, and instances of judicial execution in this manner is rare, the death penalty can be used in a discriminatory manner that “strikes against the poor and the deprived” as Justice P N Bhagwati has said. Even in countries like the United States, there have been 350 cases where prisoners were wrongfully sentenced to death in the last century. 

In this reading list, we look at the justification and the ethics for capital punishment. 

Not Democratic

India has often stifled information on judicial executions, citing the protection of national sovereignty and the maintenance of international relations, writes Bikram Jeet Bora. 

Comparing India to other countries without robust democracies, Bora argues that the death penalty is not a provision that democratic countries ought to have. The death penalty goes against human rights, and the lack of transparency about it only adds to this situation. 

In the lack of transparency around the death penalty, the proud “largest democracy” of the world finds itself in dubious company—in the same league as China, Iran, Vietnam, Uzbekistan and Belarus amongst others not particularly known for democratic practices. In its 2004 report, Deadly Secrets: A Heritage from The Soviet Union, AI observed of Uzbekistan and Belarus, “…both countries have persistently failed to publish comprehensive statistics about the number of death sentences and executions carried out including the names and case details of those sentenced to death…”. In this respect AI called on the states to, “ensure that all directives, legislation and annual statistics relevant to the death penalty are published, as well as the names and case details of those already executed.” In another report on Uzbekistan, the organisation called upon the state to “Publish all directives, legislation and annual statistics relevant to the death penalty, and the names and case details of those already executed.”

‘Rarest of Rare Case’

The death penalty in India is only applicable in certain instances of murder and sexual violence that is accompanied by murder, the “rarest of rare cases” as such. However, Monica Sakhrani and Maharukh Adenwalla have argued that the judgments through which one could arrive at an understanding of what constitutes a “rarest of rare case” remains extremely vague and arbitrary, and the possibility of laying down guidelines to classify cases as such is also limited. In their article, they have tried to make a case for the abolition of the death penalty in India, saying that the primary reason that it continues to exist is because there is still a belief that the death penalty will serve as a deterrant. 

The death penalty may not have achieved any of its stated objectives and may have led to the killing of many innocent people, but is popular as it performs many functions—it expunges the criminal from society, drains ‘dangerous criminals’ of their power completely and permanently, it has a symbolic function as it warns other deviants of the same result, diverts the public mind from the real issues of unequal distribution, controls the poor by instilling in them a moral indignation against the offender, making them internalise and institutionalise the narrow and sectarian concepts of justice and morality, stops the questioning of its values and biases and reinforces the power and supremacy of the state which includes its power to take away life at will.

Death Penalty for Rape

The deterrence argument is particularly futile in cases of rape, where legal experts have argued that the death penalty might encourage the rapists to murder victims. This was also acknowledged by the Justice Verma Committee after December 2012. David T Johnson and Franklin E Zimring have argued that there are two problems with death penalty for rape: that it diverts attention from structural misogyny that makes India unsafe, and that it takes away from women’s rights by keeping the discource grounded in “protecting women.”

But there are two deeper problems with a death penalty for rape. The first is that it diverts attention from the attitudes and institutions that make modern India unsafe for half her citizens. Changing the subject to capital punishment puts offenders in the public spotlight while leaving in the shadows those police and prosecutors who turn a blind eye to victims’ complaints and those citizens who pass by naked victims without lifting an eyebrow or a fi nger. In a country where sexual harassment and assault are endemic and where (according to a recent UNICEF report) more than half of young males think wife beating is justifi ed, the belief in capital punishment requires an Olympian leap of faith across the root causes of rape – with eyes wide shut. Would capital punishment for rapists help protect India’s girls and women? Would a capital trial for these gang rapists help reform the deeply dysfunctional system of criminal justice? The answer to both questions is in the negative. The second deep problem is that a death penalty for rape is a giant step backwards for women’s rights. In the world of 2013 there is a close correlation between executions for rape and women’s rights – and it turns out to be negative. The death penalty for rape persists primarily in enclaves such as Saudi Arabia, Iraq, and Pakistan, where women are treated as property and where “honour killings” refl ect the perverse valuation of sexual purity over human life. To appropriate the feminist slogan, Indian women need the protection of capital punishment like a fish needs a bicycle.

Is the Death Penalty Ethical?

The debate over the death penalty is really about how punishment as an idea is conceptualised. Punishment can be meted out with three ends in mind, as Nalini Rajan points out. It can act as a deterrent, it can be used with an aim to rehabilitate, or it can be used for retribution. Punishment is issued by the state to people who are judged to be deserving of it through their actions. But, in order to ensure that people are being punished for the right reasons, the state has the responsibility to ensure equitable legal aid, which is not the case in India. Therefore, if punishment is viewed only through the retributive lens, especially in death penalty cases, there is a high chance for human rights to be undermined by a miscarriage of justice. 

The case for capital punishment can certainly fit into the framework of means-ends rationality. But a wider understanding of rationality - as communicative rationality—could challenge the ethical basis of capital punishment. However, this challenge can only be met when men and women come together and initiate a process of reasonable dialogue—not when tempers run high and the atmosphere is emotionally charged. And this often happens (as it did in the talk show in question) when the offenders are the worst kind, namely, child molesters and rapist-murderers. As things stand, we may still make a claim against capital punishment, Our claim cannot be stated in strong terms that no one can reasonably accept capital punishment, but in a weaker sense that not everyone can reasonably accept capital punishment as a form of justice. Whether this claim can become a right depends largely on popular participation.