Open Forum

New Delhi, 15 July 2010

Death Penalty

NATIONAL DEBATE MUST

By VS Dharmakumar

Debates on death penalty have rarely taken a front seat in India. Perhaps, the reason why former President Dr Abdul Kalam called for a national debate on the issue recently.

Capital punishment has been in regular use in the West for thousands of years. But there too, no serious and systematic debate took place until Italian philosopher and politician Cesare Beccaria published an essay, "On Crimes and Punishment" in 1764. He theorized “there was no justification for the State to take a life and the death penalty was a war of a entire nation against a citizen, whose destruction they consider as necessary, or useful to the general good."

Since the publication of Beccaria’s treatise, mass killers and murderers have been attracting a motley crowd of people to stand beside them in support, pretending they are more humane than the rest of the society. In India, however, a recent newspaper survey shows that an overwhelming 91% favour the hanging of 26/11 Mumbai perpetrator Ajmal Kasab and only 24% favoured abolition of death penalty.

Let's take a peep into the history of crime, disobedience and punishment. They are as old as mankind. No society in the world is devoid of them as crime and disobedience are inherent in human nature. Recall, the first murder victim was Abel, first son of Adam and Eve. The first murderer was their second son Cain. He murdered his elder brother simply out of jealousy.

Said Aristotle, "Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all." Plainly, throughout history and across different societies, criminals have been punished/ executed for a variety of offences. The purpose of punishment is for social good and for reducing social evil. Punishment is the solution to steering people away from committing crimes. Fear is the pillar of the foundation of punishment.

Hence punishment must remain for safeguarding society from law breakers. Punishment should be proportionate to the severity of the crime committed. God created the fear of supernatural punishment in the minds of people. Most of the dreadful customs and rituals of mankind originated from the loathing of crime and the resolve to enforce the notion of right living.

Besides, “An eye for eye,” symbolized Babylonian King Hammurabi's code of laws in 1700 BC. Under his code, if a house collapsed killing its owner, the builder was put to death; if the owner's son died in the collapse, the builder's son was put to death. This expression found a place in the legal system of almost all countries.

True, punishing a person for a crime he did not commit is miscarriage of justice. But all criminal justice systems carry that risk. Remember, the most infamous travesty of justice in history was the execution of Jesus Christ by Pontius Pilate on 3 April 33AD. Jesus was tried in a kangaroo court and convicted on charge of blasphemy that carried the death penalty.

Also undeniable is the possibility of innocents getting punished or even executed. To prevent this happening greater precautions are available and mistaken executions are indeed rare these days. An innocent accused of crime has extensive opportunities to be vindicated during lengthy trial. In any case death penalty is awarded only in the rarest of rare cases.

Sadly, today the problem is not of innocents getting punished but of guilty persons who actually murdered people going scot-free. Thanks to legal technicalities, lack of evidence and the influence of Sir William Blackstone’s often invoked maxim: “Better that 10 guilty escape than one innocent suffer”.

The Draconian Athens code of 7^th Century BC prescribed death for almost all criminal offenses. As did ancient Rome, which ordered death penalty for a wide range of crimes: murder, treason, arson and rape. In Britain, by 1700, there were 222 crimes punishable by death. Stealing 40 shillings from a house, five shillings from a shop, robbing a rabbit warren, cutting down a tree, and counterfeiting tax stamps were crimes inviting death sentences.

The earliest known legal decision on capital punishment dates back to 1850 BC. A clay tablet reveals the case, of the murder of a temple employee by three men. The men were executed in front of the victim's house. In USA the first recorded execution took place in 1608.

Arguably, the cry against capital punishment was perhaps justified in the olden days, because death penalty was common, errors were too many and crimes warranting death were numerous. Today it is not so. Death is awarded only in the rarest of rare cases.

Even Beccaria conceded that the only time death was necessary was when that death could insure the security of a nation. This would be rare, only in cases of absolute anarchy or when a nation was on the verge of losing its liberty. Were not Afzal Guru and Ajmal Kasab’s crimes capable of creating anarchy and igniting a war of catastrophic possibilities with our neighbour?

Paradoxically, the fear of death is a universal phenomenon and whatever we fear most, we will deter most. All creatures have a natural fear of death. Murderers fear only their own death. Thus, executing convicted death-row murderers swiftly will send a message to potential murderers that the same fate can visit them if they kill people.

Importantly, hardened convicted death-row criminals hardly get reformed and the sooner they are given their punishment, the better. This is the lesson we must learn from releasing dreaded militant Maulana Masood Azhar. If the Government had sent Masood to the gallows for the ’rarest of the rare’ crimes he perpetrated in Kashmir, IC-814 would not have been hijacked to Kandahar and the revival of jihadi activities could have been avoided.

In fact, long term imprisonment of a criminal makes him more and more hardened and less and less morally refined. Rehabilitating an offender in society and making him a law-abiding citizen is difficult, if not impossible. Legend has it that even God decided to destroy all people on earth because they all became too wicked. Cruel measures are necessary for repression of brutal acts and promotion of morality.

Ironically, abolitionists worry more about the convicted murderers’ lives and ignore the lives they snuffed out. Their argument that death penalty does not deter criminals falls before Isaac Ehrlich study in 1973. He pointed out that for every inmate executed, 7 lives were spared because others were deterred from committing murder. Saudi Arabia is the best example to substantiate that death sentence is a proven deterrent. If it is not a deterrent anywhere else, it is because executing convicted persons is not swift and also not sure.

Clearly, it is an ignominious anomaly to spend public money on housing, feeding and clothing people who are a danger to society and its peace. If the Supreme Court's orders execution, such orders need to be promptly carried out. Saving the lives of prospective victims by deterring murderers is much better than preserving the lives of some convicted murderers. ----- INFA

(Copyright, India News and Feature Alliance)