On the 21st of January 2014, the Supreme Court of India passed a judgment which has widely been recognized as historic: the highest court in the country commuted the death sentences of fifteen convicts languishing in different jails across the country. What really distinguishes this verdict is not just the fact that fifteen people have been saved from ‘hanging to death’ – this verdict is important because it acknowledges the perilous and terrifying grounds on which death penalty by State decree is based. Arguing that the spirit of the Constitution leaves no space for cold-blooded retribution which the death penalty essentially boils down to, the SC verdict holds that death penalty is a cruel and barbaric form of punishment. It further admits that most convicts on the death row are extremely poor people with limited resources and little access to legal support; it acknowledges glaring lapses of justice and procedure which have irrevocably taken away lives. Coming almost a year after Afzal Guru’s execution to ‘satisfy the nation’s collective conscience’, and at a time when the hangman’s noose is being peddled as a codeword for ‘justice’, this verdict will hopefully once more open the space for a more reasoned understanding of the politics and implications of the death penalty.
He says he wants bread and clothes
He says he wants regular work
He says he doesn’t want empty speeches
He says he will march with everyone
Gorakh Pande, 1978
(On peasant revolutionaries Kista Gowd and Bhoomiah being given the death sentence)
The fact of the matter is that the death penalty as a means of delivering ‘justice’ is based on several myths and deeply disingenuous arguments. The death penalty is the only sure way of deterring crimes, we are told. It is repeatedly stated with misplaced confidence that crimes are committed by ‘monsters’ who can be easily identified and nailed by our judicial and investigative processes. If at all there are any glitches, they will be removed by making our systems more ‘efficient’, better equipped and less ‘corrupt’, we are assured. These arguments and reassurances are unfortunately not borne out by facts and collective experiences the world over. There is, for instance, absolutely no credible evidence – scientific or statistical – that the death penalty deters crime. There are several regions across the world where high crime rates happily coexist with the imposition of the death penalty and vice versa. In fact, there is far more evidence that the possibility of having to award a death penalty can deter judges from indicting the accused. Moreover, in cases where the accused is someone close to or well-known to the complainant (a very common situation in instances of violence against women), the possibility of a death penalty only places more social and psychological stress on the complainant struggling to come forward for justice. Clearly, surety rather than the severity of punishment would be far more effective in curbing crimes, as would thoroughgoing social transformation, and a more accountable police and judicial system. And yet, despite this sound logic and reasoning, the myth that death penalty deters crime continues to be touted.
Similarly, there are extensive studies which expose the chilling truth that investigations, even with the most ‘technologically advanced’ and ‘efficient’ systems, have often led to erroneous convictions. In the US, 142 men and women have been released from death row, some only minutes away from execution, when fresh evidence proving them innocent came to light. In the just past two years, evidence has come to light that four men may have been wrongfully executed in the US for crimes they did not commit. The conviction, execution, and subsequent exoneration of Carlos De Luna in the US for instance is a remainder of the fallibility of investigative and judicial systems, and of the awful and irrevocable consequences of a wrongly awarded death penalty. Carlos was executed in 1989 for the murder of a young woman some years before. In 2004, a study by Columbia Law School students proved that it was a case of mistaken identity of the actual perpetrator of the murder. And this, in a country that boasts of some of the best equipped investigation systems in the world. In India, just last year, 14 retired judges wrote to the President, pointing out that the Supreme Court had erroneously given the death penalty to fifteen people since 1996, of whom two were hanged. Even in the case of Dhananjoy Chatterjee, hanged for rape and murder, there is a high likelihood he was innocent. Had Dhananjoy been able to hire a good lawyer in the trial court, it is almost certain he would have been acquitted.
No system is perfect, and mistakes can happen anywhere. But when the consequences are so fatal and final, from where there is simply no going back and course correction possible, can we really afford to confidently sentence death? Can we allow cold-blooded violence and murder by the State, albeit sanctified and justified by a notion of ‘law’ and ‘justice’?
Moreover, we need to keep reminding ourselves that the justice-delivery mechanism of the State is also susceptible (in overt as well as covert ways) to the pressures and biases - gender, caste, class and communal – that riddle society.
Abolish Death Penalty
The CPI(ML) welcomes the Supreme Court decision to commute the death sentences of the 3 convicted in the Rajiv Gandhi assassination case. The Supreme Court recently upheld the principle that delay in carrying out death sentences is ground for commutation. This ruling has brought relief in the Bhullar case as well as in the case of the 3 convicts in the Rajiv Gandhi case. But the question arises why Afzal Guru was denied the benefit of this principle, and why Guru’s death sentence was not commuted on similar grounds by the Supreme Court. The manner in which the hanging of Afzal Guru was carried out smacks of double standards.
In the words of El Salvador’s martyred Archbishop Oscar Arnulfo Romero, whom Eduardo Galeano is fond of quoting, “justice, like a snake, only bites the barefoot.” Arguing passionately for abolition of the death penalty, Rosa Luxemburg put it beautifully: “The justice of the bourgeois classes had again been like a net, which allowed the voracious sharks to escape, while the little sardines were caught. The profiteers who have realized millions during the war have been acquitted or let off with ridiculous penalties. The little thieves, men and women, have been punished with sentences of Draconian severity”. In India too, we have seen time and again the rich, powerful and influential escape the very net of the judicial process. The December 16 rape-accused may be murdered in prison or sentenced to death - but killers and rapists in Army uniform are protected by the shield of AFSPA; rapists of Dalit women are rarely ever punished; in cases of communal and casteist violence and genocide the entire State machinery renders justice extremely elusive especially when it comes to nailing the powerful.
We must therefore recognize that the death penalty is like a lethal lottery – studies across the world have shown that the death sentence is most often arbitrary, influenced not so much by the facts of the case and the investigation but by the politics and quality of legal counsel. And inevitably, the poor and the marginalized who are unable to afford good legal services and who have to battle against the ‘commonsense’ notions constructed and so prevalent in our divided society – of the ‘violent’ and ‘footloose’ migrant, the ‘thieving’, ‘lazy’ servant or factory worker, the lustful and ‘anti-national’ Muslim, the sexually ‘promiscuous’ tribal woman who was ‘asking for it’ for instance – find themselves at a total loss in their quest for justice.
We must also recognize that the very notion of what constitutes ‘justice’ is tempered by our class, caste, communal and gendered biases. An Afzal is hanged in the name of the ‘national conscience’, sweets are distributed after his death, while the murders of Priyanka Bhotmange in Khairlanji and Thanjam Manorama in Manipur fail to evoke the same ‘national conscience’! It is no coincidence that the probably the first to be hanged in independent India, casualties of the Emergency, were peasant revolutionaries. CPI(ML) comrades Bhoomaiah and Kista Gowd, were hanged to death for daring to dream of turning oppressive feudal social and economic relations upside down in India. It is really no coincidence that the poor and the dissenters of the State constitute the majority of the victims of death penalty the world over.
Dr. Ambedkar on Capital Punishment
“… I would much rather support the abolition of death sentence itself. …the proper thing for this county to do is to abolish the death sentence altogether”.
It is high time India joins the vast majority of the world’s countries in recognizing that retribution is not justice. That it is simply not enough to believe we are a ‘humane’ civilization just because we have done away with the grotesque spectacles of public stoning or cutting of limbs. Let us accept that there is really no ‘humane’ way of taking away a life; and that it is equally grotesque for us to collectively gloat when a man is hanged on spurious and concocted ‘evidence’ in the name of our ‘security’ and our ‘conscience’. In more than two-thirds of the world, in 140 countries, death penalty has been discontinued. Revolutionaries in India must stand by Rosa Luxemburg’s advice and struggle for abolition of capital punishment, in keeping with the highest standards of “revolutionary activity and profound humanitarianism.”
A Duty of Honour
(Excerpts from Rosa Luxemburg’s article, November 1918. Rosa and Karl Liebknecht, imprisoned for their opposition to the First World War, were freed from jail as a result of a revolutionary uprising of German workers in November 1918. This article was written not long after Rosa’s release from prison. Her call to abolish capital punishment goes to the heart of the matter: the barbarism and hypocrisy of capitalist “justice”.)
The justice of the bourgeois classes had again been like a net, which allowed the voracious sharks to escape, while the little sardines were caught. The profiteers who have realized millions during the war have been acquitted or let off with ridiculous penalties. The little thieves, men and women, have been punished with sentences of Draconian severity.
Worn out by hunger and cold, in cells which are hardly heated, these derelicts of society await mercy and pity.
The Proletarian Revolution ought now, by a little ray of kindness, to illuminate the gloomy life of the prisons, shorten Draconian sentences, abolish barbarous punishments – the use of manacles and whippings – improve, as far as possible, the medical attention, the food allowance, and the conditions of labour. That is a duty of honour!
The existing disciplinary system, which is impregnated with brutal class spirit and with capitalist barbarism, should be radically altered.
But a complete reform, in harmony with the spirit of socialism, can be based only on a new economic and social order; for both crime and punishment have, in the last analysis, their roots deep in the organization of society. One radical measure, however, can be taken without any elabourate legal process. Capital punishment, the greatest shame of the ultra-reactionary German code, ought to be done away with at once. Why are there any hesitations on the part of this Government of workers and soldiers? The noble Beccaria, two hundred years ago, denounced the ignominy of the death penalty. Doesn’t its ignominy exist for you, Ledebour, Barth, Daeumig?
You have no time, you have a thousand cares, a thousand difficulties, a thousand tasks before you? That is true. But mark, watch in hand, how much time would be needed to say: “Capital punishment is abolished!” Would you argue that, on this question also, long discussions followed by votes are necessary? Would you thus lose yourselves in the complications of formalism, in considerations of jurisdiction, in questions of departmental red tape?
The history of the world is not made without grandeur of spirit, without lofty morale, without noble gestures.
Liebknecht and I, on leaving the hospitable halls which we recently inhabited – he, among his pale companions in the penitentiary, I with my dear, poor thieves and women of the streets, with whom I have passed, under the same roof, three years and a half of my life – we took this oath as they followed us with their sad eyes: “We shall not forget you!”
We demand of the executive committee of the Council of Workers and Soldiers an immediate amelioration of the lot of all the prisoners in the German jails!
We demand the excision of capital punishment from the German penal code!
During the four years of this slaughter of the peoples, blood has flowed in torrents. Today, each drop of that precious fluid ought to be preserved devotedly in crystal urns.
Revolutionary activity and profound humanitarianism – they alone are the true breath of socialism.
A world must be turned upside down. But each tear that flows, when it could have been spared, is an accusation, and he commits a crime who with brutal inadvertency crushes a poor earthworm. . .