Gopalkrishna Gandhi on why India should abolish death penalty

"Capital punishment is a macabre folly that swings between tragedy and idiocy."

The following text is an excerpt from: Abolishing the Death Penalty: Why India Should Say No to Capital Punishment; Gopalkrishna Gandhi, Aleph Books; Rs 270.

In its last and most defining and irreversible stage a death penalty case gets to be scrutinised for its wider, non-judicial ramifications, by politically wired brains. The death sentence when implemented is not a coin made of law’s pure gold but an alloy, in fact, a coarse alloy of many ores, of high, medium and low grade, that have passed through the smelteries of reason, emotion, pride, prejudice, a state’s hubris, a society’s moods that swing between pity for the victim and rage at the culprit in an unspooling of feelings that are as old as that of the Plebeians who ran amok in 44 BCE in Rome following Caesar’s assassination and killed Cinna the poet mistaking him for Cinna the assassin, the mob that bayed for Christ’s blood in Judea around 29 CE and all those "popular" upsurges down the centuries right down to our times demanding the death of men believed to have done harm to society and nation. And so the death penalty is also, somewhere in its DNA, a political murder. This is said not to debase lawfully passed sentences of death, but only to describe the syndrome in the fullness of its construction.

When executions were until not so long ago routinely carried out in public, the actual act was a public spectacle. Charles Dickens, William Makepeace Thackeray, Arthur Koestler and Camus are among the many who have written of the revulsion they felt on witnessing an execution. George Orwell’s essay "A Hanging" (1931) is a classic of bare description that takes the hood off the scaffold. But not every witness of executions suffered revulsion. Accounts have recorded the witnesses’ perverse and even prurient enjoyment of the spectacle provided by this public termination of an individual’s life. And there are many records, not all of them ancient or medieval, of executioners deriving a sadistic pleasure in the performance of their task.

The prevailing social attitude to the death penalty in India, coloured by revulsion over the 2012 gang rape of Nirbhaya (as she came to be called by the media) and rage over terrorist attacks cannot but influence, in less or more degree, the institutions of the state and those at its helm. While leaders can let the winds of opinion blow them off their feet, a few have tilted against the windmills of popular predilections.

François Mitterrand, trying after two failed attempts, in 1981, to contest for the office of President of France, declared himself, with the encouragement of the fervent abolitionist Robert Badinter, to be against the death penalty. This could well have brought him, in "guillotine France", his third failure. But, praise be to his tenacity and France’s perspicacity, it did not. One of the first things that President Mitterrand did on assuming office was to sign the abolition of capital punishment bill, making France the last European nation to abolish the death penalty.

On another continent, Nelson Mandela, likewise, stood rock-firm in his opposition to the death penalty. Under apartheid, the death penalty had been applied much more to blacks than to whites and Mandela could well have decided to keep the penalty alive and "return the compliment". But Mandela being Mandela said the death penalty was "a reflection of the animal instinct still in human beings" and as president of the new rainbow nation, invited it to look beyond the temptations of vengeance and the taste of vendetta. For a start, he asked his Cabinet to decide on abolishing the death penalty as a moral issue. But the Cabinet, comprising his own colleagues in the struggle, was unsure. It remitted the matter to the new Constitution Court which, under the sagacious chairmanship of Justice Arthur Chaskalson, gave, in 1995, the historic ruling that the death penalty was indeed unconstitutional.

Gopalkrishna Gandhi

The court’s unanimous decision of 7 June 1995 stated, "Everyone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional... Retribution cannot be accorded the same weight under our Constitution as the right to life and dignity. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be."

The African National Congress applauded the death penalty ruling, saying, "never, never and never again must citizens of our country be subjected to the barbaric practice of capital punishment".

Both those political statesmen, Mitterrand and Mandela, greatly assisted by two non-political judicial intellects, Badinter and Chaskalson, led rather than allowed themselves to be led by inconstant public opinion. But more often, leaders and institutions move along the grain of prevailing public opinion. This is seen — and explained — as a sign of being democratic when in reality, it is a sign of moral unventuresomeness and intellectual feebleness.

The United States of America is a case in point. New York University School of Law’s Professor Anthony G Amsterdam, described as "the most extraordinary legal mind", has this to say of his country: "Our political and legal machines today are obsessed with the symbolic image of the victim — largely portrayed as white, middle class, mainstream, deserving, and desperately endangered — with the danger portrayed as predatory, parasitic, wilfully jobless, promiscuously multiplying people of colour. So, it is little wonder that American governments administer their criminal systems like colonial penal colonies."

A superficial view holds that advanced countries can be so evolved as to abolish the death penalty and countries not so developed need that punishment on their statute books to keep heinous crime in check. The USA, an advanced country, is yet to abolish the death penalty. Latin America, which does not belong to what used to be called the First World, has abolished it. Of the 140 countries in the world that have abolished the death penalty, there are several that are not "advanced" countries. And among the countries that have not abolished it is, as we have seen, the world’s only superpower, the United States of America. The country that ranks first in the 2015 Human Development Index, Norway, and the country that ranks lowest in it, Burundi, have both abolished the death penalty comprehensively.

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Source: daily O, Gopalkrishna Gandhi, July 19, 2017

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