The death penalty is a legislative scarecrow

It is not hyperbole to say that capital punishment is usually reserved for those who lack capital

Most conversations on the death penalty gradually ascend in decibel, proceeding from debate to damnation. Gripped in the moral panic of regular news reports of rapes and sexual abuse of minors, a recently promulgated ordinance by the Centre permits judges to sentence convicts to death. Cases of minor victims also require stricter timelines of two months for the completion of investigations and appeals within six months. This adds to the existing bounds of two months within which the trial has to be completed from the start of the examination of witnesses. On the face of it, it seems that the Centre has enacted a stringent law with incredible penalties and harsh timelines. But it is unlikely to be much of a deterrence.

The first issue is with capital punishment, a contentious issue, which conflicts even self-proclaimed humanitarians. Many signify their discomfort with it in theory but seek to permit its practice as an exception. Here, the judicial doctrine of “rarest of the rare” with its neat phrasing and phonetic appeal discharge any moral guilt that comes from the State essentially committing premeditated murder.

The proponents of the “rarest of the rare” doctrine argue that in a small sliver of a category of violent crime, an offender forfeits the right to membership in a modern society. It is reasoned that offenders by their conduct become subhuman and like a malignant organ must be removed by a scalpel to save the health of society. The primary problem with this reasoning is that there is a growing judicial recognition that the doctrine is often arbitrary. Even though it requires a balance-sheet approach, judges have on introspection remarked on its grievous accounting errors. Its inconsistent application targets indiscriminately and without precision, and hence it ends up being used selectively in instances where media reports highlight specific cases. This is not a problem that can be fixed by re-working the law. After examining the issue in 2015 , former chairperson of the law commission, Justice AP Shah, recommended the abolition of the death penalty.

Today, there is a growing impatience with legal processes, and many in the general public already see the police and the courts as oppressors. Somewhat perversely, many now want to make this oppression work for them, reasoning that, even if the undeserving are given the death penalty, it will instil fear against rape and build deterrence. Such an understanding is at odds with the basic understanding of our constitutional values, which aim to build a society based on compassion and understanding rather than intimidation and force. There is a utilitarian benefit to the approach in a harshly unequal society like India.

Research by the Centre on the Death Penalty at the National Law University, Delhi, has shown that three-fourth of prisoners on death row are economically vulnerable and a greater number are from the backward classes. They lack the means to avail of legal counsel to lead their defence to a reasonable threshold of competence. A further failure of the rights of the accused will now result from the shorter timelines, which even if they work, may lead to an incorrect and incomplete investigation and evidentiary processes. As Upendra Baxi remarked decades ago, “Justice delayed is justice denied, but justice hurried is justice buried”.

The discriminatory nature of the death penalty shows through in most data sets when the class of offenders is broken down on a socio-economic grade. It is not hyperbole to say that capital punishment is usually reserved for those who lack capital. This undermines a social fabric in which there is a pre-existing disproportionate concentration of wealth and hence can cause greater social division. The upper and middle classes, usually the first votaries for capital punishment for sexual crimes in metropolises, must reconsider their demands, out of self-preservation, if not empathy. Any legislative measure underpins a policy decision, an objective, which the law seeks to achieve. A severe penalty and swift timelines build insincere expectations of justice. It is a legislative scarecrow, which is counterproductive and has questionable effectiveness. We need to shift attention from midnight ordinances and legal amendments to structural reforms of police forces and the criminal justice system. Look beyond the law to make social programmes the primary focus to reduce sexual violence. We must stop shouting to listen to our inner reason.

WE NEED TO SHIFT ATTENTION FROM MIDNIGHT ORDINANCES AND LEGAL AMENDMENTS TO STRUCTURAL REFORMS OF POLICE FORCES AND THE CRIMINAL JUSTICE SYSTEM