Recently, the President of India declined to commute the death penalty that was awarded to two persons – one a political prisoner and the other a trade unionist accused in a murder case – thereby eliciting concern from human rights organisations and individuals concerned about capital punishment. For many years now, the use of the death penalty by member states of the United Nations (UN) has caused concern for legal experts and advocacy groups, who argue that such retributive law should be done away with. The government of India retains the capital punishment on two premises: (a) that they act as deterrents and (b) that they are applied in the ‘rarest of rare’ cases.
Human rights advocates argue that both arguments are seriously flawed. The death penalty is never a deterrent in the case of political violence. As long as the political conditions for conflict exist, so will the willingness of persons to commit acts of violence as a means to achieve their political goals. Whether it is in Northeast India, or Jammu and Kashmir, or in other parts where there is political violence, the existence of capital punishment has not deterred people from taking to arms against the state. One is unlikely to deter people from being angry and resentful, if one chooses to hang their associates and friends. Neither does it deter non-political crimes from being repeated, as any statistical data will show. Also, it is not clear that such punitive actions for part of the ‘rarest of rare’ case. The Indian judiciary – especially at the session’s court level – is prone to handing out numerous capital punishment verdicts, which proceeds into further litigation in higher courts.
Litigation, or the act of resorting to legal course of action to address a grievance, is based on a person’s location, class and gender in India. Put simply: there are not too many poor and marginalised people, especially women, who are able to sue those who cause them be resentful and angry. Litigation is usually an urban affair and even when the poor find themselves in court, it is from a position of weakness and as defendants. Indian law is premised on Anglo-Saxon notions of property and morality, with little attention to societal and political changes in a diverse country. To trust the legal system to sanction the state to take the life of another human being, on behalf of a so-called collective conscience, is simply dangerous and undemocratic.
Sociologists have told us that laws are a reflection of society. Laws of retribution, or those that promote the idea of “an eye for an eye” are a throwback to primitive societies where coercive methods are employed to keep people in check. As societies diversify and evolve, so do their laws. They seek to become restorative, rather than retributive, reflecting a collective, societal need for addressing the root causes of conflicts and other discordant notes that are part of changing times. It is telling that in a country now obsessed with middle class activism against corruption, there is nary a word on antiquarian laws that allows the state to take a citizen’s life. In parts if India, citizens are subjected to state-sponsored murder by security forces under the Armed Forces (Special Powers) Act. Surely this condition demands more reflection from civil society and hopefully, both AFSPA and capital punishment, will be repealed at the earliest.
Human rights advocates argue that both arguments are seriously flawed. The death penalty is never a deterrent in the case of political violence. As long as the political conditions for conflict exist, so will the willingness of persons to commit acts of violence as a means to achieve their political goals. Whether it is in Northeast India, or Jammu and Kashmir, or in other parts where there is political violence, the existence of capital punishment has not deterred people from taking to arms against the state. One is unlikely to deter people from being angry and resentful, if one chooses to hang their associates and friends. Neither does it deter non-political crimes from being repeated, as any statistical data will show. Also, it is not clear that such punitive actions for part of the ‘rarest of rare’ case. The Indian judiciary – especially at the session’s court level – is prone to handing out numerous capital punishment verdicts, which proceeds into further litigation in higher courts.
Litigation, or the act of resorting to legal course of action to address a grievance, is based on a person’s location, class and gender in India. Put simply: there are not too many poor and marginalised people, especially women, who are able to sue those who cause them be resentful and angry. Litigation is usually an urban affair and even when the poor find themselves in court, it is from a position of weakness and as defendants. Indian law is premised on Anglo-Saxon notions of property and morality, with little attention to societal and political changes in a diverse country. To trust the legal system to sanction the state to take the life of another human being, on behalf of a so-called collective conscience, is simply dangerous and undemocratic.
Sociologists have told us that laws are a reflection of society. Laws of retribution, or those that promote the idea of “an eye for an eye” are a throwback to primitive societies where coercive methods are employed to keep people in check. As societies diversify and evolve, so do their laws. They seek to become restorative, rather than retributive, reflecting a collective, societal need for addressing the root causes of conflicts and other discordant notes that are part of changing times. It is telling that in a country now obsessed with middle class activism against corruption, there is nary a word on antiquarian laws that allows the state to take a citizen’s life. In parts if India, citizens are subjected to state-sponsored murder by security forces under the Armed Forces (Special Powers) Act. Surely this condition demands more reflection from civil society and hopefully, both AFSPA and capital punishment, will be repealed at the earliest.
Sanjay (Xonzoi) Barbora
xonzoi.barbora@gmail.com
