Name: Fr.Jerald D'Souza SJ

Name of the paper : Can the death penalty be unbiased and impartial?

When the news of the cold blooded, horrific murder of Shraddha Walker came to light, there was justifiable outrage. As Director of an upcoming law college, I was particularly struck by the rage displayed by almost 100 lawyers practicing at Saket district court against the accused Aftab Amin Poonawala demanding death penalty. These lawyers were hailed by many as heroes who stood up in defense of an innocent victim. Demands for death penalty are a form of social pressure on the legal system which should be viewed in the larger social and political context of the country.

What is death penalty?
Death penalty or Capital punishment is the legal infliction of death as a penalty for violating criminal law. If one looks back on history, there have been several gory forms of this, some of them continuing upto this very day. Now the methods are more ‘subtle’, in the form of lethal injections, lethal gas, electrocution, hanging, shooting etc. but at the end of the day, the final outcome is that a person is made to lose his life by a law, a protocol or a system, often as a lesson to others on what are societal expectations.

It is important to understand also that many death penalties often receive overt and covert social sanction. Someone who is symbolically a threat or even a potential threat is more likely to face the possibility of death penalty. Death penalty, similar to custodial torture, is not acceptable in a civilised society but both these continue to have supporters. Many countries have abolished the death penalty, but there are several others that still retain it.

How should society view death penalty?
As a society, we need to look at death penalty, not as an end in itself but as a mirror to what we are as a society. Do forgiveness and compassion have any role to play in how we exist (and more importantly coexist) in society?

Can we honestly say that all crimes are punished equivalently? Will a rich celebrity under the influence of alcohol or drugs who runs over sleeping migrant workers receive a similar punishment than someone who belongs to a caste, class or religious group that we are anyway intolerant of?

Is our society so moral that we can push some of us over the edge? Is morality black and white or is it a spectrum? What is a lesser or greater crime? Does an essentially flawed society have the right to take away someone’s life?

Does crime reduce when death penalty is in place?
In his landmark “An Essay on crimes and punishments’, Cesare Bonesana di Beccaria, as early as 1764, advocates for the ending of torture and the death penalty. He says that a more effective deterrent would be the certainty of punishment rather than its severity. Statistics show that death penalty does not influence the rate of homicide.

Death penalty is discriminatory
Statistics also show that when a society is already discriminatory, then people are more likely to be incarcerated if they belong to specific social groups or identities. In India, the dalit and Muslim men are disproportionately represented in Indian prisons. Data also shows that this group is also more likely to face death penalty. These statistics should set our alarm bells ringing.

It is also important to understand that even outside the legal system, self-appointed ‘guardians of morality and public order’ are also meting out death penalties. Brutal lynchings, often filmed and brazenly shared on social media, on dalit or Muslim men hasn’t received the outrage that a civilised society would display. Gang rapes, parading naked and mob lynching of women for supposedly illicit affairs is chilling. We all know that the ‘crime’ of falling in love can again lead to society imposing the death penalty on the couple.

At different points in time society has rejected, ostracised and socially boycotted those who don’t fit into existing social norms — whether it is the dalit woman who has been given a job in an anganwadi, the transmen and transwomen who create their own paths, the inter-caste and inter-faith couples, the dalit bridegroom who chooses to ride on a horse for his wedding or, for that matter, even Dr. Ambedkar who drank water from a well denied to his community for generations. What if lawyers who are part of society demand death penalty for all these ‘crimes’? What if the judicial system which is also part of a larger society actually impose these death penalties?

So one can argue that societal prejudices that manifest in informal, illegal death penalties, are replicated in the more formalised,’legal’ processes which are much more dangerous because they are performed under the umbrella of legalised social order or morality.

The role of the judicial system
The lawyer and judge represent a judicial system and have to be impartial to start with no matter how affected they are personally by the accused or the victim. Those upholding Constitutional values that is the framework for our judicial system need to consciously rise above larger social prejudices and cannot sit in judgement. Neither should they boycott accused individual or campaign for extreme forms of punishment. Their duty is to be faithful to the rule of law.

Instead of demanding death penalty for the accused, the lawyers could have demanded that couples, especially women who marry out of their caste, class or religion should be offered sensitive and additional supportive mechanisms.

Society’s response to heinous crimes
We should never forget that crime is the product of many influencing factors in our society. The socio- economic status, education, livelihood opportunities, caste, religion, gender, access to information and social networks can play a role in a person’s behaviour.

Politicizing or communalising crimes in India comes in the way of justice and reformation and our approach and discourse are coloured by well-established ideologies.

Media normalises the violence to a large extent. Aftab Poonawali confessed to have been inspired by the crime series Dexter in deciding how to dispose of Shraddha Walker’s body. The serious adverse effect of the violence that is normalised in media on a day-to-day basis should not be taken lightly. The impact of this on young children and youth is a cause for concern.

There are many ways that violence against women, Dalits and minority communities is perpetuated and promoted. From elected representatives openly calling for violence against minority communities to calls to rape women and indulge in genocidal attacks, extreme violence is becoming normalised in society. When these are played out in real life, we should also hold these agencies accountable rather than merely shouting for death penalty.

In India, where custodial torture is a serious concern, there is no guarantee that someone who has ‘confessed’ to a crime has in fact even actually committed it. In a country where political prisoners, journalists, human rights defenders are incarcerated for years simply for challenging the powers in the state, while rapists and politically connected murderers are released, it is society that has to hold the moral compass to the judiciary. We need to demand better processes in the judicial system before we demand stringent and irreversible punishments.

India claims to be non violent. However, the death penalty breaches human rights, in particular the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment.
Both rights are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948.
Fundamental human rights limit what a state may do to a man, woman or child.

The image of Graham Staines and his young sons being burnt alive by a mob cannot be erased from many of our memories. But the response of Gladys Staines, wife and mother, is something for us to think about. She says

“Because of forgiveness I hold no bitterness towards the persons who killed my family. Forgiveness brought healing which is needed everywhere from hatred and violence. But forgiveness does not change the consequences for wrong. Forgiveness and the consequences of our wrongdoing should not be mixed up,”

This is a crucial point for us to remember. A society that is compassionate and forgiving doesn’t automatically translate to one that is tolerant of crimes or wrong doings. People must be made to bear the consequences of wrong actions, but the consequences shouldn’t come from a place of hatred or prejudice. This is the only way forward for society to heal itself, otherwise the boundaries between society imposed death penalties and state imposed ones will become alarmingly blurred.

Coretta Scott King, an American author, activist, civil rights leader, and the wife of Martin Luther King Jr. has observed, “As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder.” (Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981). She further states “the death penalty reflects an unwarranted assumption that the wrongdoer is beyond rehabilitation. Perhaps some individuals cannot be rehabilitated; but who shall make that determination? Is any amount of academic training sufficient to entitle one person to judge another incapable of rehabilitation?’

In conclusion, we must realise that the death penalty does not reduce crime in society and larger social, moral and structural issues need to be addressed before individuals are penalised in such extreme, irreversible manner. Individuals should be given opportunities to reform irrespective of how heinous the crime is in the eyes of the society. Crime cannot be seen as an isolated incident but as part of a larger social framework and we need to locate crimes within this context.

As humans who are intrinsically averse to death and dying, death penalty dehumanises us in some ways each time it happens. On the other hand compassion and forgiveness ennobles and elevates us as a society. It makes us more tolerant, more inclusive and less discriminatory because we uphold human value, even those we think deserve to be punished.

The writer is an advocate and director of St. Joseph’s College of Law, Bengaluru