Why the death penalty should stay

Recently, we have witnessed a lot of debate pertaining to abolishing capital punishment. The detractors of death penalty term it as obsolete, barbaric and an uncivilised act unworthy of a country like ours. The law as it stands today however provides for capital punishment to be awarded by Courts in rarest of rare cases.

Law is meant to protect the rights of citizens, ensure their safety, well being and treat everyone equally without discrimination. Indian law recognises the right to life as a general rule and death penalty is a remote exception to this general rule.

While we as a nation we protect and respect life, we do, in exceptional cases, provide for a law which awards death penalty in cases where the gravity of an offence shakes the conscience of the society. An important function of law, and perhaps above any other, is to impart justice. The rule of law in a civilised society is linked to the concept of justice. The efficacy of a legal system is equated and measured accordingly.

The concept of justice is perhaps a fundamental non-derogable part of natural law. The purpose of a legal system is not only to protect the citizens and tell right from wrong, but also to ensure that the people see and feel that the cause of justice will be upheld, that wrong will be punished and that punishment will be commensurate to the gravity of the offence in question.

When we talk of abolishing death penalty and indulge in an intellectual debate on the issue, a question which arises is whether India is ready for such a measure.

There is some strength in the reasons put forth for those against capital punishment. Those who advocate abolishing the death penalty do cite a growing international trend where a number of countries have done away with capital punishment from their statute books.

However, to find out whether we as a nation ought to follow suit, one need not look too far to answer that question.

In December 2012, a young girl, who was travelling with her male friend, was ravaged and gangraped by a group of six in the middle of a bustling metro, in a moving bus.

Not only this, an active attempt to kill her is made and she is left to die on the streets. Within a few days she succumbed to the trauma.

Now that the perpetrators of this ghastly bestiality have been apprehended, a pertinent question to ask would be, what punishment should be imposed that would be proportionate to the ghastly crime committed, should these perpetrators finally be held guilty?

Should these perpetrators be allowed to languish in a prison for life at the expense of the Indian tax payers? What punishment would do justice to the girl who lost her life in a most brutal manner? What would serve the ends of justice for a nation whose mind and spirit has been scarred forever? What justice should be done to those who tarnished the reputation of the nation before the global community?

For those who say death penalty is an obsolete measure and a relic, it may be worth noting that this incident did not take place in 1912 or in the immediate post independence era, say in 1952. It took place in December 2012. If acts of barbarism may be committed in this day and age, why should the punishment not be commensurate?

The incident did not take place in some remote village in the rural interiors, it took place in the heart of India’s capital city. It took place at a time when the leader of one of the largest regional parties in India goes on record while talking of rape saying that “boys will be boys, they make mistakes”. It took place at a time when we talk of development and globalisation. It took place at a time when India and China are looked upon as future economic superpowers.

Take another example, that of a dreaded terrorist who mercilessly gunned down hundreds of people at a railway station, in an attempt, albeit unsuccessful, to strike terror in the hearts and minds of the Indian citizens. Would it serve the ends of justice to keep him alive in some Indian prison? Is even the most liberal of thinkers contemplating reforming this terrorist? Is it worth spending crores a year to provide for his security?

Will the families of those innocent individuals who were massacred get closure knowing that he is alive and well in some Indian jail, while their lives have been abruptly and permanently derailed? Will the ordinary citizen repose faith in the efficacy of a legal system which allows such an eventuality?

Above all, are we willing to risk another hijack akin to that of Indian airlines flight IC 814 and another Kandahar just in an effort to keep these dangerous terrorists alive in an Indian prison? Are we willing to condemn more innocent individuals to a fate like that of Rupen Katyal who was brutally murdered by the hijackers of IC 814 while seeking the release of the dreaded terrorist, Maulana Masood Azhar?

Is the liberal intellectual idealism worth all this? After his release Maulana Masood Azhar formed the Jaish-e-Mohommad which has taken responsibility for the attacks on Indian Parliament and many other terrorist attacks in India resulting in the loss of numerous innocent lives — a case perhaps for punishment to be imposed swiftly and decisively to prevent another Kandahar or another Masood Azhar from unleashing terror.

While the right to life may be respected, cherished and protected, at the same time India’s sovereignty, integrity and the well being of its citizen is equally in need of protection. It may be naive to suggest that capital punishment does not act as a deterrent.

The fear of death does play on the human psychology and it does have a deterrent effect. It is, in fact, a message, that India will not take these violations lightly and all necessary action will be taken to ensure that the rule of law is upheld.

I recently read somewhere that a terrorist who carries out a terror attack does not fear death, comes with the mindset to die and that death penalty would not be a deterrent for him. Well, one just needs to look at the number of mercy petitions filed by terrorists such as Yakub Memon and Afzal Guru in an attempt to avoid the death penalty, which will shatter the myth that a terrorist or for that matter any wrongdoer would happily embrace death and that death penalty does not act as a deterrent.

Capital punishment has its efficacy and ought to be imposed only in the rarest of cases in accordance with the procedure prescribed by law. Law has sufficient safeguards and checks and balances against misuse and the there are sufficient layers of appeal before the sentence can actually be carried out.

The concept of “an eye for an eye makes the world blind” may be true in the context of private retributive acts and not where punishment is imposed by the State in accordance with the procedure prescribed by law.

The writer is Partner, J Sagar Associates. The views are personal