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Justice, not revenge

By Bikram Jeet Batra

In India, public support for capital punishment is quoted as the reason for continuing a practice that is increasingly being discredited worldwide. Yet, apart from half-baked media surveys and television SMS polls, there is no serious evidence to support this claim

After every prominent, violent crime that takes place in the country, a recurring media response is the call for enhanced punishment and, almost inevitably, for the death penalty. The gruesome Nithari murders, the Noida gang-rape, the so-called ‘Indian Fritzl’ case, all were met with the cry to hang the guilty.  

There are many reasons for this, some of them relating to the nature of the media. A couple of television anchors and newspaper editors seem to honestly believe that the death penalty is the best way to contain crime. Others are busy trying to create a particular profile and cater to a specific audience, a la Fox News, and calls for extreme actions suit their purpose. Even though most senior, serious editors are well aware that a few hangings will resolve nothing, they still give a lot of airtime and column-inches to capital punishment. The debate on capital punishment makes for engaging television: views are polarised, the debate vitriolic and often reduced to clichés. However, such rhetoric is television-friendly and ideal for a couple of minutes of ‘panel discussion’ during prime-time broadcast.  

Many television editors will invoke public support for the death penalty to justify the airtime they devote to it. But this public support is debatable. SMS polls during a broadcast hardly provide a real indicator of what the public thinks. Forget details like demographics, methodology and class bias, these SMS polls don’t even indicate the number of persons who messaged in.  

Although even those opposed to the death penalty in India agree that there is public support for such punishment, there has not been one serious study or poll to corroborate this widely held view. Even within the realm of the half-baked polls conducted by some newspapers, it is quite clear that public opinion isn’t so obvious – ask three slightly more nuanced questions about life imprisonment as an alternative, or conditions on death row, and the support for capital punishment drops.  

But why pick on the media alone? On this issue the media is merely following the lead of politicians for whom capital punishment has been a favourite rabble-rouser for long. As a quick-fix solution the death penalty establishes the “tough on crime” reputation of the individual without him having to engage with the more difficult questions of policing, prosecution or conviction. Unsurprisingly, with elections in the air, the Shiv Sena’s Bal Thackeray has demanded that Ajmal Kasab, accused of the terror attack on Mumbai in November 2008, be hanged even without a trial. And the Bharatiya Janata Party’s L K Advani continues to blast the Congress-led United Progressive Alliance for not hanging Afzal Guru, convicted in the attack on Parliament in 2001.  

To be fair, one must credit Advani and the BJP for consistency in playing the capital punishment card – a decade ago they sought the death sentence for rapists. However, despite all the rhetoric in favour of death sentences and executions, in the five years that the BJP-led National Democratic Alliance ruled the country, with Advani serving as home minister, not a single person was hanged. Is there more than what meets the eye with respect to the BJP and capital punishment? Could it be that the party has understood correctly that although the rhetoric of hangings and executions sounds tough and may influence a few opinions here and there, the practice of capital punishment doesn’t really impact most voters or resolve the major problems? Is it possible that the BJP, too, realises that there is more to tackling crime and safeguarding national security than hanging the odd, fairly randomly selected, person?

Not in our name

While the rhetoric of the media and the politicians can be dismissed, the call for retribution and revenge cannot be ignored when it comes from a family member of a victim of a crime. It is important, however, to distinguish between a call for justice and a call for revenge killing. The thin but important line between the two demands is often ignored by the media, as also – rather conveniently – by those advocating the death penalty. Yet some families do and will call for the death sentence as an appropriate response to the murder of a loved one. Neither statistics nor human rights arguments are likely to convince them otherwise. Instead it is only time and effort spent by abolitionists working along with community and religious groups and engaging with such victims’ families that will make a difference.  

In a context where family members of victims are looking for closure, a public barrage calling for revenge can easily override other views and emerge as the sole option. It is here that the role of organisations like the Murder Victims’ Families for Human Rights (MVFHR) is vital. MVFHR, as the name suggests, is an organisation made up of families of murder victims that has been crucial in asserting the importance of a societal response to murder being consistent with human rights. They argue that no death sentences should be carried out in the name of the families of victims, who should be allowed to speak for themselves. Although no such organisations exist in India, there have been instances of families responding in this manner, including – most famously – the sons of Mahatma Gandhi who sought the commutation of the death sentence awarded to their father’s assassin, Nathuram Godse. More recently, the family of murder victim Jessica Lal also asserted their moral authority, calling for a conviction of the guilty as a just response instead of resorting to the rhetoric of the death penalty.  

Many families of victims demand the death sentence under pressure from peers and the public or because they believe that there could be no justice except the death sentence. In the Indian context, misinformation also plays a major role since most laypersons are unaware of the intricacies of the law on life imprisonment and mistakenly believe that it means only 14 years in prison. Unfortunately, with the real voices of such families rarely heard, manipulations and hijacking by those pushing a pro-capital punishment or other political agenda is common. A prime example is the mobilisation of the family members of those killed in the Parliament attack by some politicians to further the cause of their own organisations of ostensibly combating terrorism. This is inevitable unless abolitionist or progressive groups address the real issues and concerns of victims’ families instead of ignoring them. 

A global trend towards abolition  

Along with retribution, another key argument of those supporting the retention of the death penalty is that the death penalty plays a significant role in the criminal justice system in deterring crime. The attempt to extend this supposed relationship between capital punishment and deterring crime, to safeguarding national security is tenuous, to say the least. It is, at best, an intuitive link, not supported by evidence once the issue is carefully examined. In the context of terrorist crimes, often committed by persons determined to die for a cause, the deterrent argument is illogical. In the context of ordinary crimes, there are innumerable studies on both the deterrent value of capital punishment and the lack of deterrence.  

Statistics can and do prove both sides of the debate. However, as a final word, a United Nations study on capital punishment in 1996 concluded: “Research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis.” In such a context, deterrence has no place in any future capital punishment debate.  

Further, with the growth of the international human rights movement over the past decades, the claim that the death penalty is a sovereign issue and not a subject of international law is no longer valid. Although the death penalty has not yet been completely abolished internationally, it is now clear that the world community is moving in that direction and that the death penalty cannot remain a feature of modern criminal justice systems. Some 139 countries have already abolished it either in law or in practice and only 58 countries now retain the death penalty. In fact only a handful of these states execute at all.  

Even the International Criminal Court set up in this decade to try the most heinous crimes of genocide, war crimes and crimes against humanity does not allow for the death penalty to be imposed. More recently, in 2007 and 2008, the United Nations General Assembly (UNGA) voted with a resounding majority for a resolution calling for a global moratorium on executions with a view to abolishing the death penalty.  

Although a small group of nations continue to resist the clear move towards abolition, the major question now is not if, but when, global abolition will take place. Although India voted against the UNGA resolution on both occasions, in early-April 2009 the Indian home minister suggested that the government is examining the larger issue of doing away with the death penalty. However, given the almost continuous rhetoric that clouds the question of capital punishment in India, only time will tell whether this may be the start of something new or just more of the same.  

(Bikram Jeet Batra is a lawyer and researcher, presently writing a book on the  death penalty in India) 

InfoChange News & Features, May 2009