Crimes are as much about social failure as individual responsibility. Justice must be tempered by this reality

Anup Surendranath is director of the Centre on the Death Penalty, National Law University, Delhi. Views expressed are personal

At its very core, the argument against death penalty comes down to the manner in which we understand crime and those who commit crimes. Do we view crime purely as actions of “inherently bad” people, i.e. attribute responsibility exclusively to the individual (and nothing else)?

Socialisation as a factor

It is impossible to view crime as something that only “inherently bad” people do and the view that the task of criminal law is to take away “inherently bad” people from our midst is untenable. The cliché that we are all products of our circumstances has much to offer here. This is not to suggest the absolute lack of individual agency in the things we do but rather to argue that the reasons why we do the things we do is influenced by a lot more than just individual will. In that context, a four-year-old being raped and murdered, or raping and mercilessly killing members of a caste or religious group because of visceral hatred are all events that challenge our humanity.

As a society, can we look at murderers, rapists, paedophiles, genocidaires and ask ourselves the tough question of how they got there?

The point is that there is a process of socialisation that contributes to an individual’s thinking that he can rape a woman, insert a rod into her and leave her on the street to die or that he can have such intense hatred for people of other communities that they should be stripped, paraded, raped and murdered.

Our demands for justice have to be tempered by this reality. Society then cannot demand to take the life of an individual when it has contributed to that process and outcome. Crimes are as much about social failure as they are about individual responsibility. Arguments on deterrence assume that crimes are individual problems, imagined and carried out by reasons of pure individual will. It assumes that fear will trump the massive influence of everything else in our lives.

Disproportionate impact

This is certainly not to argue that all persons with similar socialisation processes will do the same thing. That is precisely the reason for not deciding questions of sentencing only on the basis of crime categories. The burden of the death penalty has a disparate impact on the most marginalised and poorest sections of society. Our criminal justice system is in severe crisis given the rampant use of torture in investigations, a broken legal aid system and alienating trial processes. It is incapable of administering the death penalty in a fair manner and that is evidenced by the fact that over 30% of death sentences handed out by trial courts result in acquittals (not commutations) in the appellate process.

The state cannot seek to take life because it has an equal commitment to everyone within its fold. When a crime is committed, the perpetrator is not the only one breaking the social contract. Obviously the state has failed to protect the victim and society but at the same time it has also failed the perpetrator in equal measure albeit in a different way. At the risk of repetition, it is not to suggest that the perpetrator has no individual responsibility but that we must also recognise the failure of society and state.

As a society we find ourselves in a strange bind — on the one hand seeking more violent and harsher punishments for certain crimes and at the same time struggling with rampant impunity for certain others. Justice is not served in either situation. To tweak Martin Luther King’s words, the arc of the moral universe must bend towards a more empathetic version of justice rather than a retributive one.

The crimes we are now witnessing cannot be addressed by simple punishments. We need drastic action

Dushyant Dave is a senior advocate in the Supreme Court

I am all for Capital Punishment because we have become a lawless society. The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, and boys who are raped and sodomised. People from the minority communities are being targeted and lynched in a barbaric manner by mobs.

The attacks on Dalits continue 70 years after India’s independence. These are the vulnerable sections of our society that continue to be targeted. The punishment meted out to them should serve as examples of deterrence for others.

No recourse

Unless you impose a rigorous penalty like death which is the severest of them all, I don’t see a solution to the problems we face. What we are also encountering is a peculiar problem where law enforcement agencies are not working for ordinary citizens. They are at the service of VIPs and simply removing red beacons from cars will not take away the privileges enjoyed by the VIPs. Roughly, over 1,50,000 personal security officers are guarding the VIPs. How do you protect the common man?

Let me illustrate with an example. Picture a small family with two children, a son and a daughter and suddenly, the daughter faces harassment from local goons which slowly escalates to serious offence leading to grievous sexual assault of the young girl.

Extremist forces

The parents have no recourse as prevention of crime is non-existent in our society. If the father complains, his complaint is barely registered in record books.

This scene plays out virtually everywhere in India — from small mohallas to villages to every nook and corner. How many death penalties have been imposed in our country compared to the staggering numbers of women being raped and murdered?

Unless you take drastic action, especially in the case of rape, murder and terror attacks, the situation will not improve. The attacks on our security personnel are increasing due to different extremist forces. Such killings must be visited with Capital Punishment.

Perhaps, this may be alternative to removal of the Armed Forces (Special Powers) Act in troubled States. Besides, the argument against Capital Punishment is not really tested. How can the state compensate for the mindless killing of innocent people?

What do you do as a society when it is impossible to reform criminals? What do you do to prevent the recurrence of heinous crimes against the vulnerable sections? All such acts call for a serious deterrence.

Slow wheels of justice

Besides, our legal system has multiple layers of appeal from the trial court to the apex court. These layers act as a safety valve against miscarriage of justice. Comparing ourselves to the West is not right as crime detection is a hallmark of most advanced societies. The kind of crime we are witnessing cannot be compared to the West. The Nirbhaya trial went on for five years before the Supreme Court upheld Capital Punishment for the killers of the young woman. The Ajmal Kasab trial took many years. I feel Capital Punishment must be provided for hate crimes as well which result in deaths or killings of innocent people in communal riots. The judicial system moves at snail’s pace and so the criminal justice system is unable to offer protection of law.

What we need now is to focus on the victims. It is about time we had a mechanism to help victims.

State-sanctioned death penalty promotes fear of the law and serves as a deterrent to future offenders

Pinky Anand is Additional Solicitor-General at the Supreme Court

While an entire nation celebrated when the Supreme Court upheld death penalty for Nirbhaya’s killers, it has once again raised the age-old question of whether we truly need capital punishment. There are two main arguments for capital punishment: first, that it acts as a deterrent; and second, it gives due justice to the aggrieved.

When I think of the former a quote by Montaigne comes to mind: “We do not aim to correct the man we hang; we correct and warn others by him.” It is my personal belief that state-sanctioned death penalty acts as a catalyst to promote the law and the fear of law which acts as a deterrent to future offenders.

Long-term impact

The crusaders against death penalty have often argued that there is no empirical data to confirm that capital punishments act as a deterrent, but studies have shown that even though it may not have an immediate effect, there is a long-term decrease in heinous crime. We should not ignore that the Supreme Court has in its wisdom struck down the challenge to capital punishment in Deena v. Union of India (1983).

The Supreme Court has laid down the scope of exercise of power to award death sentence and carved the rule of “rarest of the rare cases” to justify the extreme penalty, death, in the landmark judgment of Bachan Singh v. State of Punjab (1980), affirming the principle of “life imprisonment” as the rule and death penalty as the exception. When the crime is diabolical in nature and shocks the collective conscience of society, any mitigation cannot survive and the crime has to be tested on the anvil of the ‘rarest of the rare’. The Supreme Court has put this position forward in various matters like Vasanta Sampat Dupare v. State of Maharashtra (2014, 2017) and Machhi Singh vs State of Punjab (1983). This test was also applied in the case of Dhananjoy Chatterjee v. State of West Bengal (1994).

Sending a strong message

My view on upholding of capital punishment is echoed in Machhi Singh where the Supreme Court in a three-judge Bench held: “The reasons why the community as a whole does not endorse the humanistic approach reflected in ‘death sentence-in-no-case’ doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of ‘reverence for life’ principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine…The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection.”

The society is in uproar today as crime is constantly on the rise. Law enforcement structures are struggling to meet the expectations of the civil society. In a rapidly antipathic society, our legal structures need to send a strong message to enforce the idea that punishment will be “consequential” and commensurate to the crime.

In the land of the Mahatma, it might seem as an affront to our ideals as a nation, but I often find myself asking if it was a bigger affront to have a 23-year-old raped and brutalised by six men who would then get to enjoy the privileges of television and other perks for good behaviour while sentenced for life.