The past fortnight saw the execution of Ajmal Kasab, the Pakistani Lashkar-e-Taiba terrorist who had been captured in the attacks on Bombay in November 2008, just days before the fourth anniversary of the same attack. Not surprisingly, death penalty abolitionists used the opportunity to argue their case against state execution (yet again) before the public. It is not difficult to be sceptical of state power and fear its familiar abuse. However, the Indian judiciary has set the bar quite high with its “rarest of the rare” doctrine that there is less to fear in terms of judicial error in the awarding of society’s severest criticism.
The question whether the death penalty should exist is not a matter of law but of philosophy. That it has been upheld repeatedly by the highest court of the land is enough to cement its legal position. Yet laws reflect societal values, and the real question that faces us is if a law that allows the state to take the life of an individual should be on the books in the first place.
Those who oppose the death penalty do so on multiple grounds – its irreversibility, its low correlation to deterrence, the rejection of retribution and vengeance as one of the foundational elements of justice, and its inhumanity. Barring the first concern, the rest seem like a haute-bourgeois tantrum, insisting upon the imposition of a saccharine prettiness on society. The emphasis on mercy, reformation, and rehabilitation find little resonance with the victims of crimes; the unbridled optimism – naïveté? – that comes through is neither practical nor sound. What the abolitionists seem to have lost sight of is that the penalty is considered only for the severest of crimes committed in the most exceptional manner.
So far, most questions have been asked by the opponents of capital punishment. There are, however, a few questions for them too: firstly, what is their rejection of collective retribution based on? Second, what is the success rate of rehabilitation of the most dangerous criminals, and what is the potential for recidivism? Third, what exactly is inhuman about a state execution in which efforts have been made to ensure that death is quick and painless? Fourth, what makes institutionalised mercy a virtue?
There is an implicit assumption that retribution is somehow inferior to clemency or rehabilitation, though it is not clear on what this assumption is based. There is no denying that retribution serves an important psychological need in communities, and the principle honoured down the ages has been that the punishment must be proportional and similar to the crime. Psychological closure is even more important in crimes wherein loved ones have been brutalised, and offering mercy – even via life in prison – in such cases may never let deep scars heal.
The notion of retribution is ancient and has religious – middah kenegged middah – as well as secular – lex talionis – origins. Interestingly, the principle was supposed to curb retributive impulses of a wronged party in early societies! Apart from finding some basis in utilitarian principles such as the removal of a criminal from society serving the greater good, capital punishment also has some support from deontological ethics. The German philosopher, Immanuel Kant, believed that retributive justice was not merely about punishment but also about respect. Treating a criminal as a case of social maladjustment was not only an enormous loophole but also ignored the rationality of the perpetrator of a crime. If the basis of law and society sees man as a rational actor, it is hardly logical to disregard so foundational a belief when it comes to criminal behaviour.
The new mantra of rehabilitation that has taken hold of prison reforms has certainly had its successes, but most of these have been among inmates who have been incarcerated for non-violent crimes. One wonders if rehabilitation would work on hardened criminals capable of carrying out the rarest of the rare crimes. Would it have worked on Ajmal Kasab? Osama bin Laden? Uday Hussein? Were one inclined towards an emotional plea, a brief summary of former president Pratibha Patil’s pardons would be appropriate here. Logic alone, however, should suffice (but the emotional impact of coming face to face with gruesome crimes should be noted). Faced with a death sentence, everyone is keen on disavowing their crimes, but what is the probability – and danger – of recidivism? No longer is the question merely a philosophical inquiry but it can have devastating consequences on thousands of lives.
It is also alleged that state execution is inhuman. The act itself seems quick and relatively painless – hanging by the long drop method causes severe trauma to the upper cervical spine and causes near instantaneous death. This is far kinder than the victims of those the state apparatus has sentenced to death, but that is neither here nor there. The assertion is that voluntary taking of life is cruel and unusual. This assumption, however, takes no account of the context in which a human life is being taken and the process by which that decision has been reached; nor does it consider the consequences of not doing so. Arguing that the death penalty is not humane tries to make an absolute moral judgement. The only problem is that everything functions within limits.
A final point for consideration is the option before the state for clemency. Mercy is not an act that can be deserved, or one would then be entitled to it. It is, properly considered, an act that one has no claim to. Furthermore, the mercy being sought is not personal but institutional. There is yet another twist – one must be careful to distinguish between charity, pity, forgiveness, and mercy. The first has no implication of pardoning or reducing guilt, the second refers to the adjustment of guilt to an appropriate level, the third is quite clear in its intent, and the fourth implies a second chance a moral improvement. Unfortunately, this is a personal decision, one that society cannot make collectively. Mercy, if shown, can meaningfully come only from the kin of the victims – who but the wronged can bestow such a magnanimous gift?
People like Kasab, bin Laden, and Hussein are not merely criminals; those who commit the rarest of rare crimes represent a tumour in society that must be excised. If rehabilitation were truly the answer, there would be no war, no hatred, no racism, no strife of any kind today. We would all be generous, happy, eco-friendly, virtuous, community-conscious, and dharmic individuals. The horror of some crimes forces us to reflect upon those members of our species that have gone wildly wrong, and it is too close for comfort – it could have been us. Our discomfort must not, however, lead us to specious moral arguments. In that Great Book, the Mahabharata, we learn a most important lesson from Draupadi in the Vana Parva: “Revenge is not always better, but neither is forgiveness; learn to know them both so that there is no problem.”