The incident, which had shaken the whole nation ensuing in heavy protests, and the collective conscience of the society which could be satisfied only if capital punishment was given to the offenders, has come to rest. Satisfied they should be all.
The four convicts of Nirbahaya case were hanged after they had availed all their lawful remedies. The following hours were an anxious time as well as proud moments. I was proud of my nation that witnessed exceptional few moments of common solidarity and of its individuals who showed the courage to stand as restricted to repressive Indian culture of rapes, and in solidarity with Nirbhaya and her family. I was anxious, quite ironically, on the other hand for people who were celebrating the victory of the rule of law and the hanging of the convicts. The collectives have rallied for it and finally, it happened.
But is it right or wrong of us to interpret “Justice Delivered” only through the death penalty?
To choose between right and wrong is an invalid option when it comes to India. With plurality in every boundary of the land, there could only be multiple opinions. But yes, there exists something called ‘collective conscience’ that we Indians share. Influenced, impacted, induced, manoeuvred, hegemonized, even coerced, but it comes into presence, cited at times and disregarded at another. This time again collective conscience won.
People support and call for the death penalty because they don’t understand how it is used in practice. They don’t know the inequities and unfairness in its administration. The investigation part which is the most significant in any criminal case to prove the guilt of the offender is started and dealt with at the instance of people with vested interest and with the aid of corrupt and incompetent police officers. It’s a very commonplace exercise of police and investigating agencies to fabricate cases by planting evidence. The accused in the majority of cases come from lower social backgrounds and are reluctant to speak or protest against the police because of the fear of the position of police in our society.
The individuals are unconscious of the tremendous inconsistencies and aberration within the actual death sentencing. Whether an individual will be sentenced or not generally depend on who decides the case rather than the merits of the case. The probability of getting a death penalty is judge-centric i.e depends on the personalities and prejudice of the judges and certainly on whether they are pro or against the death penalty.
The concerned people of our country are uninformed of the circumstances where death sentences are executed to innocent people. Not all the convictions are bad but the majority of the convictions are bad in our country. The people of our country have to understand the death penalty not just in terms of violation of human rights but in the context of the extremely compromised policing process or inadequate and under-resourced policing.
Public opinion should’ve no role in sentencing a person, whether or not you think it ought to be. In certain cases, judges have expressed a view that collective conscience was an aggravating factor. The hanging of Mohammad Afzal Guru in the Parliament attack case is a noteworthy event in contemporary Indian politics. This is not only because of the various gaps in the prosecution or the strange decision by the highest court of the land that Afzal had to be killed, but it was to meet the collective conscience of the society.
People pronouncing that they wish the victim had as many legal options as the accused have to save themselves from execution, should not fall in this debate between the rights of the victim vs rights of the accused; or for the false dichotomy that somehow we can protect victims by taking away the rights of the accused. There are problems in both the ends of the criminal justice system but to signify that we need to give lesser rights to the accused to get more justice is misleading.
There isn’t any proven relationship between the death penalty as opposed to life sentence and victims’ rate of satisfaction. I happen to think that if you lose a loved one through murder or rape, you probably will never get over it, regardless of the sentence. There’s no evidence to show that if the accused does not get the death penalty, the victim is less satisfied than if they do get it. What we can infer from the countries which have abolished the death penalty is that the victim will then demand the next serious penalty available. If you want justice for your loved one, you want the court to impose the most serious penalty it can, it doesn’t matter whether it’s a death penalty.
The utilitarianism around deterrence is really what is motivating the judges and people towards death sentence. There’s a public pressure within the governments and judiciary in deciding cases. A good example of police actions taken due to public pressure is the Priyanka Reddy case. The covert execution of the encounter of the accused, violating all procedures and even the law of the land, is nothing but desperate attempts of the police and the government to satisfy the collective conscience of the people.
The collective conscience of people about the death penalty needs to be put into question by pointing out the surreptitious process through which the accused and the victim has to go to, to avail justice. It has to be the maturity of the citizens to deal with the realities of its legal system and the death penalty is its worst manifestation of this crisis has to be dealt with serious concerns.
Let the collective conscience not be fooled by the relatively little progress the government seems to have made in correcting the system because the government thinks the death penalty deterred. There is no concrete evidence to show that death sentence worked as a good deterrence in any country of the world. It is absurdly illogical, to consider deterrence as the only legal argument for taking the life of a person. Let the government and our judges not be moved away from the idea of humane and compassionate life to play the global hangman to please the hawks at home. Public opinion in India should not overlook the worldwide development in favour of abolition the death penalty.
Both the crimes that society suffers and the punishments that it considers appropriate for such crimes are a reflection of the standards of decency and propriety within that society. Undoubtedly, it is not the severity of the punishment but the certainty and uniformity of it which will reduce crime. Even for capital punishment to work as a deterrent, the reasonableness of the examination, the certainty of conviction, and the speed of the trial are vital. With the police and judicial independence being under a cloud, the deterrent value of capital punishment seems diminished unless police reforms and fast investigation are a part of the package.