With Yakub Memon being hanged till death on 30th July morning, the debate about capital punishment has again taken the spotlight. Many intellectuals have criticized not only the hanging of Yakub Memon, but also the very system of capital punishment. The present article aims to analyze some of these arguments against the capital punishment.
But before analyzing the arguments against the capital punishment, we should first briefly look into the role of punishment in justice system as understood in western and Indian traditions.
The role of punishment in society
In the west, many philosophers and thinkers have written about the concept of punishment and justice.
Hegel argued that a crime is an infringement of rights and this can be erased only by infringing the rights of the criminal through the infliction of punishment.
Similarly, Igor Primoratz says that punishment is morally justified as long as it is just and that it is just when it is delivered to a person who has committed an offense. He further states that justice is not being done, if the guilty goes unpunished.
Therefore, the purpose of punishment is to make the criminal undergo hardship for the pain and suffering he has caused to his victim and this punishment should be proportional to the hardship he has caused to his victims.
Beccaria argues that the purpose of punishment is two-fold: to prevent the criminal from committing fresh crimes and to deter other people from committing those crimes. The Stanford Encyclopedia of Philosophy says: “A liberal justification of punishment would proceed by showing that society needs the threat and the practice of punishment, because the goal of social order cannot be achieved otherwise and because it is unfair to expect victims of criminal aggression to bear the cost of their victimization.”
Therefore, in the western tradition of thinkers and law makers, various arguments have been provided for the necessity of punishment in delivering justice and maintaining social order. These include punishing a criminal for a crime already committed, punishing a criminal to prevent him from committing crimes in future, to deter others from committing such crimes and to give justice to the innocent victims who have suffered.
A similar view can be seen as being expressed by Indian thinkers and law makers as well. Various Smriti and dharma-shastras(i.e. books dealing with law, morality, dharma etc.) deal with the duties of the king and the importance of punishment which is called as “danda”. For example, Manu says that anarchy will lead to the spread of fear among the common people (as there is no one to protect them), therefore, a king (i.e. a government) is necessary. He further says that the concept of punishment i.e. danda has been introduced so that the king (i.e. a government) can protect its citizens as only due to the fear of punishment will people involve in the practice of their own duties without resorting to adharma (unrighteousness). That is, the mechanism of punishment will ensure that people do not harm others or infringe the rights of others as its adharma and hence punishable.
Therefore, the role of punishment according to Indian worldview is four-fold: it protects the innocent, it punishes the criminals, it deters others from committing crimes out of fear of punishment, and it ensures social order by helping people practice their own duty peacefully.
Hence, we can safely conclude that “Punishment” is very vital for a harmonious functioning of a society. Now, let us look at some of the arguments made against capital punishment:
- Capital punishment is retributive: One of the important arguments against the capital punishment is that it is retributive in nature and this attitude is not conducive to delivering justice. It is argued that ours being a civilized society, we should not inflict an eye for an eye concept in our society. True, we should not implement an eye for an eye concept as practiced in some countries. At the same time, “proportional punishment” needs to be implemented. Without being retributive in nature, punishment cannot truly become preventive. Only when a criminal is punished for his present or past crimes, will one be able to restrain him from committing other crimes, or reform him so that he renounces his criminal ways. Such punishment alone will act as deterrence. Therefore, any arguments against capital punishment on the grounds of retribution can be equally applied to the whole mechanism of punishment. And the elements of retribution can be removed from justice system only when the mechanism of punishment itself is removed. This of course would lead to anarchy.
- Capital punishment will not act as deterrent: Another argument made is that capital punishment does not reduce crime rate. Some statistics have also been offered to show that in countries where capital punishment is prohibited, there the crime rates are low. But it must be pointed out that deterrent need not mean that there will be no crimes, or even that there will be a reduction of crimes immediately. Deterrence must be instead understood as preventing society at large from turning into anarchy, where people commit crimes openly as there is no fear of being punished. In the case of Yakub Memon who was involved in the 1993 bomb blasts in Mumbai, if capital punishment is not given, then it will encourage other people to involve in such activities. It will send message to terrorists that India is a weak nation where they can bleed people freely with very little consequence. Further, another terrorist may have hijacked a plane or could have taken a hostage in order to get Yakub released, the way it had happened in Kandhahar plane hijack. Therefore, capital punishments in many cases act as a deterrent against many future crimes and they also prevent society at large from falling into criminal activities.
- Death penalty to a criminal will not bring back the dead victim: It is true that hanging a terrorist or a rapist will neither bring the dead victim alive nor nullify the physical and mental torture that the victim had undergone. But then this argument can be applied to any punishment. Should it mean that all criminals must be allowed a free run across the country? After all, no punishment is ever able to right a wrong that has already been committed on a victim. The suffering of a victim cannot be nullified. The aim of the punishment is not to nullify the sufferings of the victim either. The purpose of the punishments including capital punishment is to prevent the particular criminal from committing crimes in future.
- Death penalty once given cannot be undone: True it cannot be undone and that is why the Indian justice system awards the death penalty only in the “rarest of the rare” cases.
The question one should ask is: If a war against the state in the form of terrorism is not “rarest of the rare”, what is? If a brutal gang rape of an innocent girl is not “rarest of the rare”, then what is?
Do the terrorists, whose actions result in deaths of hundreds of people, also think about death being an irreversible event? The fact is that people often misuse the concept of “kshama” or mercy. Mercy is given only to the one who truly deserves it. We should ask ourselves: Does a terrorist or a rapist truly deserve mercy?
Further, the argument of mercy can be well used against the whole mechanism of punishment itself. If mercy is used as a universal rule, then all criminals will go scot free. Mercy must be used only on a case to case basic and not as an argument against capital punishment as a whole.
- Government/Judicial system does not have a moral right to take life: This is true. Government or judicial system indeed does not have a moral right to take anybody’s life. At the same time, it is also true that no person has right to harm or kill other people. Who will tell this to criminals? Who will prevent the criminals from harming others? The power to punish through proper judicial means is included in a democracy in order to protect the innocent and prevent the criminals from harming others. Capital punishment is just one form of punishment. No institution or person has moral right to take anybody’s life, but the mechanism of punishment including death penalty is inevitable in order to maintain social order and prevent criminal elements from creating chaos and anarchy.
- Innocent people may be given death sentence: This is a real possibility. When court punishes people, at times even innocents are inadvertently punished. This is true for all acts of punishment and not just capital punishment. But we cannot remove the whole mechanism of punishment due to this. It is for this reason, people on death sentence are given various hearings and only then, the hanging actually happens. In the Yakub case, he was repeatedly found guilty and his death sentence was repeatedly upheld in the courts. The possibility of innocents being punished is unavoidable, but the attempts must be made to prevent it as much as possible.
Therefore, it can be easily seen that many arguments against death penalty do not hold when analyzed from a larger perspective. These arguments of pacifism and blanked opposition to capital punishment can easily be applied to any kind of punishments. And if the mechanism of punishment itself is removed based on these arguments, then the society will end up in chaos and anarchy, where criminals will have a free run and masses will suffer. Though no person or institution has a moral right to take another’s life, yet capital punishment is necessary for the sake of protection of the innocent, punishment of the criminals and for the prevention of whole society from falling into crime.
(The views and opinions expressed in this article are those of the author alone and do not necessarily reflect the official policy or position of NewsGram.)
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