“Judges should never be bloodthirsty. Hanging of murderers has never been too good for them.” (Bachan Singh v. State of Punjab)
Few cases stir as much revulsion and outrage as gang-rape and murder, and fewer still have aroused such passionate demands for the death sentence as the 16 December incident on a Delhi bus. One cannot but be horrified by the senseless brutality of the act that took her life. But is the death sentence the only possible legal or social response to this crime?
Judges adjudicating such cases experience greater revulsion and outrage than the common man since they hear the testimony first hand and see the pain of the family members on a daily basis. They are also under intense public and media pressure to hang the perpetrators. While they may insulate themselves against the latter, battling their own feelings and maintaining the required objectivity is much harder. A death sentence cannot be awarded merely because the majority of the public wants it. It can only be awarded if certain legal criteria are met. A death sentence which does not meet these criteria, but is awarded nonetheless to fulfil a public demand—“the collective conscience of society”—makes the law an instrument of public vengeance.
In the Bachan Singh case (1980), five judges of the Supreme Court upheld the constitutionality of the death penalty. At the same time, they severely limited its use and held that the death sentence can only be given in the rarest of rare case, where the alternative option of life imprisonment was “unquestionably foreclosed”, where there are no mitigating circumstances, and where evidence on record eliminates the possibility of the convicts’ reformation. Youth, a quintessential indicator of the potential for change and reform, was recognized as a mitigating circumstance, and the court explicitly stipulated that “If the accused is young or old, he shall not be sentenced to death.” Poverty and the personal circumstances of the offender (childhood abuse, abandonment, etc.) have also been held to mitigate the offence and merit the lower punishment by subsequent judgements.
Every murder is brutal, and most murders are heinous. The commission of murder in howsoever brutal or heinous a manner does not ipso facto attract the death sentence as it does not rule out the possibility of reformation, especially not when this is the first such offence committed by the convict. In the Delhi gang rape-murder, some of the mitigating circumstances favouring the convicts are youth, absence of similar criminal antecedents, the possibility of reform, and an impoverished family background. In the face of these mitigating circumstances, the death penalty should not have been invoked and is not legally justified.
What purpose does the death penalty serve? There is no evidence that it deters murder more than imprisonment for life. In fact, the evidence shows the contrary. Hanging a few rapists will not make the streets safer for women, or make them more secure in their own homes. It will, however, camouflage governmental apathy and provide a much needed distraction from the core issues of women’s safety. It will allow politicians to say that they are tough on crime against women and get away without doing anything at all to address the causes of such crime. It will also allow us to vent out righteous indignation, and then rest content with the misogyny around us. It is not surprising therefore that most feminists oppose the death penalty for crimes against women.
Both law and morality privilege reformation over the taking of life. Reformation is difficult and expensive. The taking of life is easy and cheap. But if compassion, mercy and faith in humanity are still virtues that we prize highly, it behooves us to invest in reforming convicts instead of taking the easy way out by hanging them from their necks till they are dead. Once we abandon reformation, punishment becomes synonymous with revenge and puts us on the same moral plane as the murderer. To become a more humane and compassionate society, and leave a better, less bloodthirsty world behind for our children, we must curtail our instinct for bloody retribution. State sanctioned violence does not eliminate or reduce violence. It just perpetuates it. In the Bachan Singh case, the Supreme Court sounded a note of caution: “Judges should never be bloodthirsty. Hanging of murderers has never been too good for them.” Neither is it for society.
Yug Mohit Chaudhry is a human rights lawyer, leading the death row abolitionist movement in India.