Afzal Guru’s hanging and the clamour for death penalty for the Delhi gangrape heroine has brought to the fore the vexed question of capital punishment.
As most of us know, a Supreme Court judgment a few years ago decreed that the death penalty should be given only “in the rarest of rare cases”. But in a large country like ours, even such a restrictive edict results in sufficient numbers: at the last count, there were nearly 500 prisoners awaiting execution, some of them for years. In fact, in the last 17 years, only four people on death row have gone to the gallows. As you would expect, almost every convicted prisoner sends a mercy petition to the President of India, and most Presidents (for example Pratibha Patil), take no action till their term ends, passing on this particular burden to their successor. Pranab Mukherjee seems to have shown a greater awareness about the need for action, but even he cannot quickly clear the backlog.
Let’s forget the numbers for a while: the central question is whether the death penalty itself constitutes cruel and unusual punishment which the state has no right to inflict, especially since it does not have the ability to undo/reverse it. If you can’t give life, you can’t give death. This argument has won over most democracies in the world, especially the developed world where only the US has not banned it. But even there, 41 of America’s 50 states have done away with the death penalty.
There are several compelling arguments for not having the death penalty. First and foremost is its utter and complete irrevocability. DNA tests, now widely used in the West, have shown that a number of past convictions for murder have got an innocent man. So what does the state do to the man wrongly hanged? Say “Sorry”?
This was one argument which was used in the UK to do away with the death sentence. It’s an important point to keep in mind, especially when we consider that the quality of detection and police work, and the level of forensic tests available there are far superior to what we have in India. Many of our convictions are based on confessions, a terribly dicey area, especially because we know how they are extracted by the police. In the US legal experts are of the view that confessions should be invalid unless they are video-taped, but who is to say whether the tapes have been doctored or not?
Let us assume, however, that the Supreme Court’s diktat of “rarest of rare cases” rules out the death penalty for marginal cases where evidence is not clinching, so that when a man is sent to the gallows, the proof against him is water-tight.
Even here there are problems. The foremost amongst them is of inequity. How many cases have you heard of where a rich or influential man has been hanged? Some of the worst and most gruesome murders have been committed by well-off people, but they get away because they have the money to get the cleverest of lawyers, who at worst, will get a death sentence commuted to life imprisonment. Often things do not even reach that stage: the well-connected murder suspect can bribe/threaten witnesses, can “influence” police investigations, or even get the prosecution to dilute its case. It’s the poor man, often relying on a state-allotted lawyer, who will face the hangman’s noose.
There are also the courts themselves. Different judges in different high courts have different ways of evaluating the “rarest of rare” decree. Some judges have been strict (the hanging judges), while others have been lenient (the bleeding hearts). Isn’t it likely that economic class, caste, even the look and deportment of the accused can unconsciously have a bearing on his punishment?
So, then, what are the arguments for the death penalty? One is obviously the “eye for an eye” argument: the enormity of the crime can only be punished by the maximum sentence. But didn’t Mahatma Gandhi famously say, “An eye for an eye makes the whole world blind”? Besides, doesn’t this smack of a kind of revenge motivation? Notably in the Delhi gangrape, didn’t we all say “Hang the bastards”? But is revenge, never condoned in individual cases, befit a liberal democracy?
The deterrent effect is often cited in favour of the death penalty. Did it deter Afzal Guru? Or Ajmal Kasab? If there had been a mandatory death penalty for gangrape, would that have stopped the Delhi gang of six? If they had thought of the consequences at all, they wouldn’t have given in to their deranged lust in the first place. But if they had, they would likely have killed both the girl and her male friend to ensure that there were no witnesses to their crime. So whether it is terrorists or crimes of “passion”, the deterrence effect doesn’t really work. Even in other cases, where there is an element of cold-blooded planning in a murder and the deterrent effect should operate, the perpetrators carry on with their crime in the mistaken belief that they can hide the evidence.
On balance, then, there seems to be hardly any case for capital punishment. Instead what we need to do is define “life imprisonment” as jail till the end of the prisoner’s life. That would be time enough for most murderers to repent.

Anil Dharker is a Mumbai-based writer and columnist