Ajay Kumar

| @AKlawyer | July 15,2018

The Supreme Court on July 9, 2018 rejected the review petition of the three men who were sentenced to hang for murder and sexual assault of a para medical student in Delhi on December 16, 2012. Of the four convicts, only three had filed a review petition.

The death penalty is a contentious topic among many legal minds in India. There are some who are outrightly in favour of capital punishment, while there are some who are also quite against it. But why is society so fascinated with the imposition of the death penalty.

Society has a tendency to want to send away bad things. Things that it finds offensive. But this motivation doesn’t come from wanting to improve society but comes from a place where society no longer wishes to have to face up to its truths

Slavoj Zizek’s views concerning toilets and ideology may be a useful example here. Post using the toilet, those in the Anglophone tradition, like to flush it to see its contents go away. There is a sense of peace that fills a human being because the contents of a used toilet are no longer there. But this doesn’t take into account the fact, that the contents haven’t really left the room, but are merely under the toilet. Society has a tendency to want to send away bad things. Things that it finds offensive. But this motivation doesn’t come from wanting to improve society but comes from a place where society no longer wishes to have to face up to its truths.

The perpetrators of the 2012 incident are one such social truth. India is a country that is unsafe for women and women in India don’t have the same rights as men do. Their existence is this harsh truth that society doesn’t want to face up to. This can clearly be seen from the fact that, even after the convicts were sentenced to death and the rape laws were toughened, incidents continue happening. These incidents are of similar or if not more brutality than the 2012 incident in Delhi. One only needs to think of the Kathua case. Perhaps the fact the such incidents continue to happen should give us a clue that there are deeper problems worth addressing. The killing of perpetrators is sufficient to draw away attention from this fact. It gives a society a false sense of closure on a crime rather than determining if this closure actually exists.

If a crime must warrant death, then society must be the murderer to carry out that sentence. A murderer when hanged is hanged by another murderer, except the later has the sanction of the state to commit the crime while the later doesn’t have one

The death penalty is less about the victim of an incident and is a lot more about the social ramifications of the crime. The social ramifications and the penalty are starkly apart from each other. If a crime must warrant death, then society must be the murderer to carry out that sentence. A murderer when hanged is hanged by another murderer, except the later has the sanction of the state to commit the crime while the later doesn’t have one.

Society when it executes this punishment, does so fully aware of a sense of wrongness

Which is perhaps why, there is an amount of ritualistic practice that precede such a penalty. The ritual involves, having to give the convict a series of appeals not available to the others, then allow their lives to hang on a razor wire of clemency. This is followed by the rituals in the Jail Manual(s) which provide for a series of steps. A fourteen-day period between the rejection of the clemency petition till the execution of the sentence. This period is so that the convict may make peace with their makers. The burying/cremation of the convict in a place of secrecy to avoid creating martyrs. Society when it executes this punishment, does so fully aware of a sense of wrongness. Yet you have those, who cannot bring themselves to kill a chicken, shouting from the rooftops that a person must hang.

Who has given society this power, to take away what it cannot on its own give? The rule that we can only take away that which we have given, is suspended when it comes to punishment. Society determines how to organise its own constituents. But what is the logical extension of this principle? The extension is that the convicts are also a part of society. They are its creatures. If society has to take away a life, then it must follow that it was society that was initially responsible for such life. So do we all hang when we condemn? Or should we?

The aim of punishment is reformative, otherwise everyone would get th death sentence for the smallest of crimes. The reformatory theory of punishment is one that acknowledges the guilt of society in creating a criminal. The death penalty does not. It turns on what India’s Supreme Court calls the “collective conscience”

When one is in school and one has done something wrong, the parents are summoned to provide an explanation for their child’s conduct. Must not we too as a society be called to account to explain the conduct of a convict instead of flushing him/her away? Must we not examine what went wrong and try to remedy the situation? The aim of punishment is reformative, otherwise everyone would get the death sentence for the smallest of crimes. The reformatory theory of punishment is one that acknowledges the guilt of society in creating a criminal. The death penalty does not. It turns on what India’s Supreme Court calls the “collective conscience”.

The broader question of if there is a “collective conscience” is not addressed. The collective conscience would mean that the criminal would have a conscience as well. But if the criminal has one, we don’t hang him. We only hang criminals who we are convinced had no conscience to render a crime “unconscionable” as it needs to send a broader message to society. The two-fold message that a crime is against a person as well as as society. But if criminals are truly part of a society then the crime can never be one that is against society. Like an illness the patient must receive treatment. So too must society treat its illnesses rather than amputate its limbs.

Perhaps Albert Camus put it best when he said: “But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared?

Perhaps Albert Camus put it best when he said: “But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.”

While there may be a murder that ought to be punished, there is never an excuse for all of us to become murderers in order to avenge it.

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Rocky Abraham

Good article and very well thought out. It’s well established that capital punishment has no deterrent effect whatsoever, nevertheless Ii agree with the position taken by the Supreme Court that capital punishment may be awarded in case of ” the rarest of the rare ” crimes.
Hanging the murderers of Nirbhaya will certainly not deter future rapists and murders ers, but it will give a sense of closure to her family and loved ones. To that extent, I agree that they should hang.
Rocky Abraham

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N N

That’s precisely what the author is against. He says “But this motivation doesn’t come from wanting to improve society but comes from a place where society no longer wishes to have to face up to its truths.”

That is the closure most seek.

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