(Written originally in October 2013)
The issue is being debated for a while now. The voices of both those, who are for it, and those, against it are however, getting louder. Naturally. They have to counter each other.
Before the December 16 incident of rape/murder, it was much easier to go with the ‘anti-capital punishment’ logic’. After all, there must be, as they say, evidence to prove that capital punishment does not decrease the incidence of violent crimes, including rape and murder. It has also been argued that a justice system cannot be based on revenge or ‘externalities’.
Also, although the Supreme Court has recently held that ‘brutality’ alone cannot be a ground for considering a case as ‘rarest of the rare’, the anti-capital punishment lobby feels that there cannot be definite guidelines for this category and hence, the human element/subjectivity may come in its interpretation. In the December 16 judgment, the judge recognized that “the collective conscience” of the nation had been shocked. An Additional Sessions Judge, I was travelling with in a flight had a clear opinion that ‘death penalty’ does have a deterrence greater than life imprisonment.
December 16 incident had something that was unique. The spontaneous protests by the people. It is argued by the anti- capital punishment lobby that a street crowd demanding “justice” (read “hanging”) influences the outcome of the case. Their point is that while the same ‘pressurized’ police into doing a good investigation, what would happen in cases where this pressure is not there? Hence, they smell a rat in justice system becoming amenable to any ‘external influence’.
In other words, they are suggesting that the ‘revenge’ voice subtles the patient examination of the issue and may divert from the questions of ‘systemic improvement’ – making existing laws effective, better policing, better investigation, judicial reforms, social changes promoting equality of sexes, building environment where ‘passerbys’ are not mute spectators etc.
Now, none of these logics can be countered on the face-value. While, one may concede that “justice” (hanging) in one case is not enough, and that efforts have to be carried out for “systemic” changes, where is the need for the former necessarily being an opponent of the latter. While there is a risk for “judicial system” getting influenced by “externalities”, there may also be a merit in “at least something moving this way”. A rapist/murderer might, even if chances are less, think that his case may be one where the society will be up in arms against him for any anti-social behavior. While there are ‘institutions’ for dispensing justice, maintaining social order etc., but if we concede that there is something called ‘will of the people’ what is the harm in having such display of public emotion, if that is the last straw to force public authorities to perform?
So, while, it may be sane to keep in mind that the real hard and dirty work has to be carried out over medium-long term consistently to bring ‘social and systemic’ changes, it has become difficult for me to disbelieve that a harsh message of capital punishment, even if it is in selected cases, would have some deterrence value and therefore there may be some merit in the same remaining on the statute book.