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  • Nishi Upadhyay

The Essence of Justice: A Case against Capital Punishment

Every time a crime is committed, the victim has a desire for revenge and the recent clamour for the death penalty of rapists collectively echoes that individual desire. Capital punishment is just an embellished form of vengeance, given legitimacy by the state. When a law is implemented in society, it must be in the interest of the general public backed by solid reasoning rather than individual passions or public sentiments and the recent clamour for “justice” by demanding death penalty for sexual violence makes us re-examine the institution of retributive punishment and its efficacy.

Dostoyevsky once wrote, “Murder by legal sentence is immeasurably more terrible than murder by brigands”. Capital punishment is regarded as the worst form of punishment because it is morally flawed and ethically questionable. The problem with the notion of the retributive theory of justice lies in its aim- to make the wrongdoer suffer. The sole purpose is to satisfy the desire of vengeance of the injured party and its appeal of ​lex talionis​, the law of retaliation, is very problematic since it disregards factors such as the mental state of the person. Besides, it has the risk of convicting innocent people as even the best judges and the redressal process in the world is vulnerable to mistakes and death is a heavy price for such ignorance. The assumption that “bad people deserve to suffer” turns a blind eye to psychological, social and economic factors which lead to crime. According to a report, one in every three undertrial prisoners in India is either SC or ST. In such a situation, one particular group will be affected disproportionately which might further alienate them from society.

Some people might argue that an offender loses all his natural rights by his actions so there is no point in talking about morality and the value of his life. Then let’s go beyond the intrinsic value of human life and look from a utilitarian perspective if we can derive any benefit by executing a criminal. Thomas Aquinas, the medieval philosopher and theologian, pointed out:”…… if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution to preserve the common good.” In a modern sense, Aquinas by common good means ‘deterrence’ which is endlessly put forward as one of the justifications of capital punishment.

After all, everything seems justified if innocent people can be saved from harm in the future which leads us to the question – does the severity of punishment deter crime? Capital punishment is usually portrayed as the ultimate deterrent weapon which uses the most intrinsic fear of a human being: death. But the whole idea not only remains a very under-researched subject but also assumes more than what can be warranted. First of all, it assumes that crimes are committed after some rational calculation and cost-benefit analysis of crime and punishment but evidence suggests that a vast majority of crime are done out of rage, depression, and under the influence of drugs and alcohol.

Another assumption is that the offender is aware of the laws and penalties. In India, most of the people don’t even know what behaviour is objectionable or impermissible and to expect them to commit a crime with full-fledged knowledge of the law is to expect too much. As far as the case of deterrence is concerned, the certainty of being caught is a more powerful deterrent than severe laws. Moreover, the death penalty can lead to increased violence and murder cases by perpetrators who will make sure the victim is dead before they report anything. According to NCRB, in more than 90% of the cases, the accused is known to the victim, so if the punishment is death, victims might be less likely to report the case at all. The severity of punishment only means added psychological and social pressure on the victim, low reporting, low conviction rate because of “lack of sufficient evidence”, and endless court hearings in the slow-paced justice system.

The whole rationale of the death penalty for rape is that this crime is proportional to the death of a person. Thus the accused deserves nothing less than death. But this whole idea stems from our understanding of rape being inseparably connected with ‘honour’, morality and chastity. No one is denying the gravity of the crime but this notion hampers the integration of the victim in the society and the wellbeing of the victim is as important as the punishment of the criminals. Our frenzy for justice will end with a couple of additions in criminal laws or mercilessly hanging the ‘bad guys who deserve to die’ but whose justice are we talking about? Because that will not, in any manner, change the life of the victim. We need more than just a quick fix solution to appease the vengeance-seeking masses.

No law or punishment can stop a crime which has ‘social foundations’. The low status of women, negative police attitude towards victims, perpetuating myths of women as false complainants, victim shaming are some of the ways in which we contribute to rape culture in a society. Rape is not something that happens by itself in isolation; it is a manifestation of a society’s thoughts and actions. Recent protests all over the country show our capability as a society to look beyond our “self-imposed” ignorance and collectively demand change but that change should come from the very core of the society, with the realisation of every individual.

By Nishi Upadhyay

The featured image first appeared on Poster for Tomorrow on 10 October 2010.


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