Last week, Afzal Guru, a convict in the 2001 Parliament attack case, was executed. His hanging came in close succession to that of Ajmal Kasab, a terrorist of Pakistani origin convicted by a court in Mumbai. Both instances have led to a fierce outcry in liberal India against death penalty. In the welter of noise, one can hear two arguments against capital punishment. That experience worldwide shows that it does not deter crime and that it is a “barbaric” punishment unworthy of being on the statute book of a civilized country. Both display a peculiar fatalism so characteristic of India. Both ought to be dismissed.
It is by now usual to claim that global experience shows death penalty does not work. One way to buttress this claim is to run some sort of regression or claim a correlation between death penalty and the rate of crime. After much effort and statistical refinement, the evidence is inconclusive, either way. Abolitionists and proponents both routinely cite studies to back their claims. If, for the moment, the abolitionist viewpoint is accepted, it immediately yields one conclusion: that it is impossible to rationally deter crime in a country governed by law. If death penalty cannot curb violent crimes such as terrorism, surely it is futile to expect a lesser punishment like a long prison spell to work? This chain can be extended all the way to say that there is no link between crime and punishment.
Then, consider, the appeal to the other argument: that death penalty is barbaric. Surely, no country with an independent judicial system executes persons for crimes such as theft. It is only in case of extraordinary crimes like murder and political violence that the ultimate punishment is prescribed. If death penalty is barbaric, is murder and politically mediated execution of innocent people any less barbaric? This line of argumentation leads to a curious asymmetry: one kind of barbarism is acceptable while the other is not. And one cannot escape this by claiming that prosecution and judicial processes are some sort of barbarism in reverse. This is utterly vacuous for the simple reason that states exist to safeguard the life, liberty and property of individuals who live under their jurisdiction.
Seen together, this line of thinking betrays fatalism about crime and terrorism: that it is impossible or virtually impossible to curb them. No country can be governed properly, if this becomes the staple of mainstream thinking. India is in danger of reaching that point.
One can build any number of extenuating circumstances to defend criminals all the way to the denial of free will. Poverty, broken families, social and political conditions are regular alibi. But consider this: if there is one cornerstone of modern life, it surely is that actions have consequences. Until the moment a person pulls the trigger of a gun pointed at a prospective victim; until the moment a terrorist triggers a bomb; until the moment attackers entered Parliament on 13 December 2001 and fired those fatal shots, they all have a choice: not to engage in a crime. To deny that people engaged in crime are not responsible for their actions is to beckon anarchy. The arguments against death penalty made in India come close to advocacy of such denial. No state can or should permit that.
To move forward and end this state of affairs, India needs to do three things.
First, put an end to the spurious doctrine that death penalty is justified only in the “rarest of rare” cases. Today, the country stares at anarchy generated by different factors—generalized lawlessness due to a breakdown in enforcing law and the ever-present danger of terrorism both of domestic and foreign origin. To say that a “rare” remedy cannot work against these widespread maladies is a travesty.
Second, create a permanent or periodically instituted judicial sentencing commission that prescribes sentencing guidelines that will be binding on trial court judges. In case higher courts overturn the sentencing decisions of lower courts, they should be asked to provide clear, explicit and transparent reasons for doing so. Points of law or obscure judicial doctrines should have no role in such reversals. This body can revisit guidelines issued by it in the past in light of studies based on crime rates, empirically guided sociological enquiries into criminal behaviour and other scholarly endeavours.
This will resolve two problems. For one, it will put an end to judicial discretion in sentencing and bring about much needed uniformity at the level of trial courts. For another, sentencing issues deliberated in a calmer environment are likely to be more just and will also enable resolution of the problem of legal deterrence of crime more soundly.
Finally, to restore the deterrent value of the law, especially in terrorist offences, crimes against the state and sexual crimes against women, the time between the filing of a chargesheet and pronouncement of a sentence must be reduced drastically. If this calls for a drastic overhauling of the procedural aspects of our judicial system, then so be it. In case where death penalty has been awarded by a court, a quick confirmation (or overturning) by a high court followed by a quick exhaustion of the appeals process is essential if faith in law has to be restored.
Siddharth Singh is Editor (Views) at Mint. Reluctant Duelist will take stock of matters economic, political and strategic—in India and elsewhere—every fortnight. Comments are welcome at email@example.com. To read Siddharth Singh’s previous columns, go to www.livemint.com/reluctantduelist-