Is death the only punishment?

With The death sentence awarded to accused Santosh Kumar Singh in the Priyadarshini Mattoo case, the Indian judiciary has sent out a clear signal that delayed justice need not necessarily be justice denied. I wish the media would refrain from projecting the outcome as due to a public outcry for justice. Any such pointer runs the risk of the defence taking advantage to claim that factors other than a sound analysis of evidence as having influenced the decision.

And there is no dearth amidst us of rights activists determined to counter verdicts of death penalty. It amazes me how such votaries get incensed only when a Afzal Guru or a Dhananjoy Chatterjee is on death row and not at other times when a dispassionate uninvolved debate is possible. There will be many among us to cry hoarse against the Mattoo murderer from being sent to the gallows.

The infliction by due legal process of the penalty of death as a punishment for crime is termed as capital punishment. The word ‘capital’ is derived from the Latin word caput meaning head. In the past people were often executed by severing their head from their body.

The first death penalty laws date back to 18th century BC in the Code of Hammaurabi of Babylon, which codified death for 25 different crimes. Death penalty was part of the 14th century BC’s Hittite Code, the 7th century BC’s draconian Code of Athens that made death the only punishment, and the 5th century BC’s Roman law of the Twelve Tablets. Death sentences were carried out by crucifixion, drowning, beating to death, stoning, burning alive, and impalement. In 10th century AD, hanging became the usual method of execution in Britain, but William the Conqueror in the following century would not allow persons to be hanged or executed for any crime except in times of war. In the 16th century though, 72,000 people are stated to have been executed under the reign of Henry VIII. Common methods used were boiling, burning at the stake, hanging, beheading, and drawing and quartering.

Interestingly, in ancient India under the laws of Manu and later writers Narada and Brihaspati, there was no capital punishment, only monetary compensation, in a society where man was called satadaya for the cost of his life valued at a hundred coins. A murderer had to pay a fine to the family of the victim.

Arguments for and against capital punishment are legion. The one in favour is based on justice and the nature of a moral community, which requires that each person respect the life and liberty of others. Those who commit vicious crimes destroy the basis on which a moral community rests and forfeit their rights to citizenship and even to life itself.

The argument against is based on love and the nature of an ideal community in which forgiveness and the hope for redemption are the guiding aims. Protection of the innocent requires that criminals be isolated, perhaps permanently. Just punishment is appropriate, but love never gives up even on those who show no love. The most compelling argument, however, is based on its actual administration in our society; the risk of killing an innocent person, disproportionate infliction on the poor and the minorities, weakness of the deterrence argument, failure to recognise that destructive life histories of criminals may have damaged their humanity to the point that it is unfair to hold them fully accountable for their wrong doing, and so on.

That normal sentence for murder in India is death, is no longer true ? the Supreme Court having laid down that death sentence be where facts disclose that "culpability has assumed extreme depravity; the accused, an ardent criminal and menace to society." Where the "crime is committed in an organised manner and is gruesome, cold-blooded, heinous, atrocious and cruel ? the case being one of the rarest of rare, shocking the collective conscience of the community." The Apex Court has said a death sentence be considered only after weighing both the aggravating and the mitigating circumstances.

My appeal to those that advocate abolition of death penalty: I am personally for abolition, which should be our ultimate aim. But even while the world is moving towards abolition of the death sentence, conditions in India are not conducive, nor ripe enough to contemplate such a step at this stage.

Author: Maxwell Pereira- India