End the death penalty: Its basis has collapsed


India should abolish the death penalty. It would mark a substantive break from the Raj legacy, a bigger one than the laws laid down after the British Crown took charge from East India Company in the wake of 1857’s horrors. People had been blown to bits by cannon balls and left hanging from trees for their alleged roles in the Uprising. Now it took a trial in court and determination of guilt, at least on paper, but those charged with grave offences could still be put to death by the state apparatus. What freedom in 1947 brought was a substantial measure of justice in general, but self-rule has not yet translated into a ban on this particular practice. The advocacy of such a ban has long stumbled on the shock of actual crimes in evidence, some of them so shocking that any ‘leniency’ is misread as sympathy for perpetrators. The case against capital punishment, however, is based not on emotion, but reason. As the country redrafts its penal code, it’s about time this reform found the legislative backing it deserves.

Across societies and ages, the penalty in question has survived on its reputed capacity to deter the most unwanted of acts. What might have worked in olden-day contexts of tyranny, however, would surely have lost force as human rights began to get encoded, legally and socially, and fear ceded space as a motive for conduct to civil concerns. Today, its efficacy as a deterrent stands in doubt. Studies have shown only weak links between rates of crime and execution. State executions cannot be relied upon for social gains. Yet, the costs imposed by these remain heavy. A life taken cannot be given back, so the risk of a false conviction doing it is far from trivial. With open-and-shut cases now a rarity, no justice system can promise 100% accuracy in affixing guilt, regardless of intent. Imperfection is a given. Under current norms set by the Supreme Court, the penalty applies only to “rarest of rare” cases. While this caveat holds wisdom to the extent it aims to reduce hangings (a ghastly old method that calls for a debate of its own), it fails to ease a categorical burden placed on our conscience. The fact that an innocent life can potentially be snuffed out by a court order implies that our tacit approval of it has been taken for granted. Alas, too little sleep is lost over this assumption of democratic consent.

An unjust noose around a neck might be cruel, it has been argued, but what’s ideal could also become the enemy of what works, should Indian gallows be consigned to history only to witness a surge in encounter killings by police forces under pressure to uphold law-and-order. Lenient law, in this view, could lead to harsher policing on the ground, while stiff penalties in high-profile cases serve to quell vigilante impulses (or ‘satisfy’ popular demand). This argument may hold pragmatic appeal, but it is deeply flawed. At one level, it assumes that it’s okay for the rule of law to be held hostage by social conditions, never mind its supremacy on paper. At another, it ignores the possibility of police reforms to better align policing incentives with the statute, so that trials are that much likelier to be fair and fake encounters fewer. Meanwhile, research suggests that prison isolation of convicts is sufficient to achieve the stated goal of our judicial system, which is to be reformative and not vengeful. Heinous violations are unlikely to spurt if we rid our rule-book of the death penalty. Parliament should expunge it once and for all.

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Updated: 20 Aug 2023, 04:10 PM IST

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