05 Jun 2017 04:59am IST
Seema P. Salgaonkar
On May 18, 2017 the ICJ (International Court of Justice) stayed the death penalty to former naval officer, Kulbhushan Jadav, ordered by a Pakistan Military Court and the people in India heaved a sigh of relief. Just a few days before that is on May 5, 2017, Supreme Court of India upheld the death penalty verdict awarded to four convicts in the Delhi, on December 16, 2012 gang rape case (Nirbhaya Case). This verdict was upheld by various leaders cutting across the party lines. Law minister Ravi Shankar Prasad, Kiren Rijiju, Kiran Bedi, Subramaniam Swamy, CPM leader Brinda Karat, Maneka Gandhi, AAP leader Kumar Vishwas, all opined that justice was done. Thus death penalty in both the above mentioned cases became an independent variable, while the perspective, the context and the opinions differed.
This once again takes us to the age old debate on what should be our take on capital punishment? As a woman, and as a mother to 15-year-old daughter, I do associate myself with Nirbhaya case and feel that the culprits should be given harsh punishment. But as a Political Science teacher, in my class, while explaining the significance of Article 21 enshrined in the Constitution guaranteeing ‘Right to Life’ to the people of India, we often analytically discuss how death penalty by the State is against natural rights, as well as paradoxical to democratic framework of the country. Following the nuances of democracy, taking away someone’s right to life can be termed as a barbaric practice. The subject is complicated and has to be studied from various angles, theoretical, socio-economic as well as political. What are the grounds against capital punishment? Firstly, right to life is natural right and nobody has the right to take it away, secondly even though the crime may have been proven with facts and evidence, the culprit may be innocent and if hanged, justice can never be done; thirdly on technical grounds the appeal to various bodies made by the convict is very expensive and is a burden on the state exchequer; fourthly, it reflects that society is revengeful; fifthly death penalty is no deterrence and it need not ensure non-repetition of the crimes as crimes continue even after, and only value- orientation and education can bring in required change; sixthly, Gandhian flavour, no person is born bad and therefore the focus should be on reformation; seventhly ‘spiritual forgiveness’ which means since there are procedural delays in imparting justice, the victim or his/her family should forgive the wrong doer rather than living life carrying the hurt and baggage of injustice. It is opined that ‘death penalty is a symptom of a culture of violence, not a solution to it’. Today there are about 104 countries of the world, more than half, which have totally abolished death penalty.
In India, death penalty is given to the ‘rarest of rare crime’. The Criminal Law (Amendment) Act of 2013 has now included cases of rape and murder as rarest of rare crimes. A law-abiding common individual doing his duty, a family person, a sincere tax payer, a patriot to the nation, feels discouraged and disgruntled if the criminal commits heinous crime and gets away with it. In such situations Hegel’s retributivism seems to be more convincing. In fact Hegel opined that every sane person is aware of his actions – right or wrong. And if a person who has done wrong is not punished equivalent to the crime committed, we are disrespecting the person and robbing him from his right to be punished. Some sort of harsh punishment reiterates one’s hopes that truth will always prevail over evil and justice will be done. Also there are examples, more than random, where the criminals who serve years in jail, seem to be involved in crimes of similar nature, rather than being reformed once they are out after serving their term.
But there are certain intricacies which require our attention. For example, in Kulbhushan Jadav’s case there was procedural defect. Pakistan denied repeated requests for consular access of Jadav and he was not allowed to choose his own defence lawyer. In Delhi gang rape case, the culprits are still given time to file a writ petition in the Supreme Court and post that they can file a mercy petition before the President of India. The Judicial System of the country should be transparent and above all kinds of race, religious, caste or class prejudices. Judiciary may falter if it bends to public pressure or collective conscience. We come across ample of examples where people using their influential positions, power or/and money go scot-free in spite of committing crimes of serious nature. The FIRs, Medical Reports and Postmortems of the bodies are manipulated. It is likely that people may become skeptical in such situations and question the entire system i.e. there were doubts raised on Mumbai High Court’s decision in Bilkis Bano Case of May 4,, and Supreme Court’s decision in Nirbhaya Case of May 5, as to why two women in the two similar cases of barbaric violence, were judged by two different standards?
It would be a great moment for Indian democracy when it will join the countries of the world that have abolished death penalty. But till then we need to have more constructive programme for reformation. In fact our jails should be referred to as Reformatory Centres. The values of humanity need to be ingrained so deeply in us that it should act as deterrent against any action to malice mankind.
The latest trends shows that the education level of the convicts in jails is 70:30 that is seventy per cent of convicts are literate. So somewhere our education system has failed. That means the issue is not as simple as death penalty or life, but much wider, questioning the whole fabric in which our society is woven. Being a democratic country and also a country with rich cultural heritage we should focus more on reformation and this requires a holistic approach.
(The Author is Associate Professor of Political Science,
Government College of Arts, Science & Commerce,