Does The State Have A Moral Right To Extinguish Human Life?
Bombay High Court advocate Rajiv Wagh wrote for the ‘In My Opinion’ column for Reader’s Digest in the December 2012 issue. This was written soon after 26/11 Mumbai terror convict Ajmal Kasab’s execution
There is no denying that Ajmal Kasab’s crimes are beyond description. The Supreme Court has rightly held, while upholding his death sentence, that in addition to murder, Kasab is guilty of waging war against the Indian state, another capital crime. Yet we have to face the question whether or not the death sentence is morally justifiable and defensible. Should the likes of Afzal Guru and Kasab be hanged? Many of you will answer with a resounding yes. We believe that those guilty of capital crimes against other human beings deserve to die. But is the matter so simple? Does the state have a moral right to extinguish human life?
The opposition to punishing people for their crimes by death has long existed. Bernard Shaw has Caesar in Caesar and Cleopatra say: “And so, to the end of history, murder shall breed murder, always in the name of right and honour and peace, until the gods are tired of blood and create a race that can understand.” Fortunately, the gods do not need to create a new race because many human beings now realize that taking life is somehow incorrect and inappropriate. In Crime and Punishment, Fyodor Dostoevsky educates us that the punishment for crime is our own conscience. In this classic literary work, a young man kills two women but there is no proof of his criminality. He can escape scot-free but his conscience does not excuse him and he finally hands himself over to the police. Since we are on the subject of the death penalty, it may not be inappropriate to reproduce what the great spiritual teacher Nisargadatta Maharaj says in I am That: “Punishment is but legalized crime. In a society built on prevention, rather than retaliation, there would be very little crime. The few exceptions would be treated medically, as of unsound mind and body.”
Amnesty International, the worldwide organization that fights for human rights, reports that 129 countries have abolished the death penalty. Still, 67 nations have it on the statute book but only 23 actually kill criminals. Only recently, 14 retired Indian judges wrote to President Pranab Mukherjee urging him to work towards abolishing the death penalty in the country. Among other things, the judges pointed out that the Supreme Court had itself admitted that it had gone wrong in three cases in which it had upheld the death sentence. One of the persons has already been hanged while the other two are awaiting elimination. This is the chilling fact about the death penalty. If the legal system goes wrong, as it can because it is manned by humans, we can never reverse the death. That is why “it’s better that ten guilty persons escape than one innocent suffer.” This is why some people also argue that if we cannot give life back, we have no right to take it, whatever the circumstances.
Moreover, solitary confinement for prolonged and indefinite periods in a prison, the fate that awaits most death-row inmates, is retribution enough. The Court of Appeals in the United Kingdom recently quashed the conviction of a Belfast man named Liam Holden for allegedly murdering a soldier in 1972. Fortunately, his death sentence had been reduced to life imprisonment and he spent 17 years in jail. Had he been executed, the acquittal by the Court of Appeals would have had no meaning and Holden’s death would have put us all to shame.
India has been moving steadily towards the abolition of the death penalty. Before Independence and for many years after that, the death sentence was liberally handed down to convicts. But a steadily increasing number of voices have been joining the international debate on the abolition of the death penalty. The watershed however came in 1980 when a constitutional bench of the Supreme Court considered the case of Bachan Singh. The Court upheld the constitutional validity of the death sentence but made it clear that henceforth the death sentence could only be given in the rarest of rare cases. In giving some definition to what rarest of rare could mean, the Court held that such a crime must have been deliberately planned, executed meticulously in a diabolic manner, exhibiting inhuman conduct in such a ghastly manner as to shock the conscience of everyone and therefore disturb the moral fabric of society.
This judgment has had a salutary effect because, over the years, fewer and fewer people have been sentenced to death and subsequently killed. In the last 12 years, India has hanged only two persons. Former President Pratibha Patil commuted the death sentences of 35 persons to imprisonment for life. There are 29 people on death row today including Afzal Guru and Kasab.
Has the doctrine of “rarest of rare cases” worked in India? To some it appears to be the most practical solution to an almost intractable problem. The doctrine gives the judiciary flexibility to vary the punishment from case to case. The 14 retired judges who recently wrote to the President, however, felt that the doctrine was altogether subjective and arbitrary because upholding the death penalty depends entirely on the personal philosophy and morality of our judges. One set of judges may sentence a man to death while the same facts and circumstances may induce another set of judges to hand him the milder life imprisonment. A close study of Supreme Court judgments on the subject can leave you bewildered.
Will India one day abolish the death sentence? That prospect does not seem to be looming. The opinion that the death sentence acts as a deterrent has many believers in our country, even though there is increasing evidence to show this may not be true. Then there is an urge for retribution, particularly among those connected with the victims.
Sometimes the crime is so gruesome and diabolic, it shocks everyone. Earlier this year the Supreme Court considered the case of a father of a four-year-old-girl. The lower courts had sentenced him to death after finding him guilty of raping his own daughter, inflicting serious injuries on her person and murdering her. The body was found in a graveyard. Despite these facts, the Supreme Court reduced the sentence to one of a minimum of 30 years in jail.
Abolition of the death penalty involves serious social, moral and, sometimes, political concerns, as in the case of Afzal Guru and Kasab. Gandhiji said that the destruction of individuals can never be a virtuous act. Perhaps public opinion in India has not reached that stage of maturity where we have the compassion and understanding that is needed to spare diabolic killers the death sentence.
In some Western countries, the relatives of victims of serious and heinous crimes have themselves come forward to join the chorus for abolition of the death penalty. One could only watch or read with admiration the manner in which the Norwegian nation handled the trial of Anders Behring Breivik, the man charged with killing 77 youngsters at a youth camp in cold blood in July last year. Breivik made no bones about the fact that the killings were pre-planned, ideologically motivated and executed with meticulous care without any consideration for his young victims. Yet his trial was conducted with absolute fairness and maturity. Even though the accused never showed any remorse, he was only given a sentence of 21 years in jail. Remarkably, some parents and relatives of the victims said they felt no animosity towards Breivik. When will such a brave and compassionate new world dawn on our country?