R Jagannathan's article "Yakub Memon hanged: Why India still needs capital punishment" lays out a case for retaining the death penalty in India, with some pointers on how it can be applied more narrowly.
Much of Mr Jagannathan's argument doesn't hold water.
For one, he argues that the right to life is not sacrosanct when it comes to people guilty of terrorism, serial murders, or rape. The right to life, though, is the most fundamental of human rights, and like all human rights, it is something that inherently belongs to people not because of what they do, but because of the human beings they are.
The article claims that "keeping deadly killers alive in jail can tempt their compatriots to indulge in more killings". But counter-terrorism officials around the world have often pointed out that individuals who are executed may be seen as martyrs, whose deaths can become a rallying point. Groups can also use executions as justification for retaliation, continuing the cycle of violence.
Second, Mr Jagannathan questions the argument that the death penalty must be abolished so that innocents are not executed. He suggests that rules for applying the death sentence be tightened so that it is imposed only when there is strong evidence. This is far-fetched. Even in countries such as the United States, which have well-resourced criminal justice systems, several innocent people have been sentenced to death. At least 155 death row prisoners in the US have been exonerated since 1973 - proof that no justice system is free from error, and the risk of executing the innocent can never be eradicated.
In India, the risk of executing someone in error is not minor. The Supreme Court has itself acknowledged that death sentences are handed out in a subjective and inconsistent way. Research by Amnesty International and PUCL has shown that whether people are sentenced to death depend on factors ranging from the quality of their lawyers to the idiosyncrasies of judges. Even the 'rarest-of-rare' test (which refers to the possibility of reform, and not as many believe, the gruesomeness of a crime) is by the Supreme Court's own admission not always applied correctly. Former judges have pointed out that at least 2 people have been executed in India following faulty judgments.
Mr Jagannathan acknowledges that many people languishing on death row are from vulnerable backgrounds - something empirically proven recently by a National Law University study which found that over 75 % of those on death row came from economically weak sections of society. No doubt, poverty and arbitrariness can affect any criminal case. But this injustice is particularly unacceptable when there is a question of life and death.
Thirdly, the argument that the death penalty is not a deterrent, Mr Jagannathan claims, is weak because no punishment deters crimes involving killing. In this, he is partly right, because deterrence lies not in the severity of punishment, but its certainty. When the Constitutional Court of South Africa abolished the death penalty, it said: "The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the State must seek to combat lawlessness."
Take the case of crimes involving sexual violence against women in India. When only 1 % of these cases are estimated to even be reported to the police, of which a fraction go on to be investigated, prosecuted, and end in conviction, the likelihood that any potential offender will be punished is miniscule. And it is here that we truly fail victims of violence, not in failing to impose death sentences at the end of a long and uncertain process.
Further, there is no compelling evidence that the death penalty deters crime more effectively than a life sentence. If authorities are serious about preventing crime and terrorism, they should strengthen the administration of justice as whole. Public safety is not delivered through executions.
Finally, the death penalty is needed to send a message to society, says Mr Jagannathan, and as retribution for wrongs inflicted. But the sending of this signal itself has nothing to do with the kind of punishment inflicted. Countries across the world send out this signal by handing out prison terms, the most serious punishment on their books. And we don't even need to look to Europe or Scandinavia, as he suggests. India's neighbours Nepal and Bhutan have abolished the death penalty. Neither has seen the 'chaos and disaster' which Mr Jagannathan warns of.
Mr Jagannathan admits that the death penalty must be used for a more specific set of crimes. While international law clearly sets abolition as the goal for countries which retain the death penalty, international standards say that where the death penalty does exist, it must only be imposed for crimes that involve intentional killing. In India however, the death penalty can still be handed out for offences including abetment of mutiny and kidnapping for ransom. Pending abolition, the government must ensure, at the very least, that crimes which don't involve intentional killing are no longer punishable with death.
"We need the death penalty for our own reasons at this stage in our development as a civilised society", concludes Mr Jagannathan. Here he underestimates India. As a society, it is time for us to stop pretending that revenge is justice. It is time to do away with the death penalty.
Source: firstpost.com, August 2, 2015. Shailesh Rai is the Senior Policy Advisor at Amnesty International India
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