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To Hang Or Not To Hang?

By Bal Patil

28 February, 2008
Countercurrents.org

Its an ill wind that blows nobody good. It is indeed a disquieting sign of the socalled terroristic world we live in that 58 countries are planning to move UN to resume capital punishment. http://www.ipsnews.net/news.asp?idnews=41336.

As per news reports in UK a recent poll of 95000 people conducted by a popular national newspaper a staggering 99% said they want to see the return of capital punishment.http://www.thesun.co.uk/
sol/homepage/news/justice/article841077.ece
This is most unusual because it was the UK which took an initiative to abolish capital punishment in the fifties.

In India death penalty is awarded in the rarest of the rare cases. As a protagonish of the abolition of capital punishment I would like to reproduce my comments in my article “To Hang or Not To Hang” published in The Illustrated Weekly of India, dated. 18.02.1979 which I venture to think are still relevant originally published about three decades back because judicial perspective or the lack of it has not changed over the course of three decades.

To Hang or Not To Hang?

Opinion is divided in the world over the abolition of the death penalty. In some countries this extreme punishment has been done away with, in others it exists only in the statute book, while in many it is still imposed. The author highlights the pros and cons of this controversial subject.

Four young students, all under 25, were sentenced to death recently by the additional sessions judge in the Pune murder case on a charge of entering into a criminal conspiracy and committing ten murders in cold blood.

This case once again brings into focus the question of the abolition of the death penalty. The additional sessions judge, Mr. W.N. Bapat, has in view of the cold-blooded and heinous character of the murders categorically ruled out morbid pity or any redeeming factor on account of the adolescence of the accused.

There is certainly a hint of judicial ambivalence here because the judge cannot help referring to the “clamour” in the modern world for the abolition of the death penalty. But the judgement leaves one in no doubt that the judge is clear in his mind that the extreme penalty has a definite place in the statute book and that it should continue to be so.

“Criminological Quackery”

But sometimes-judicial ambivalence and helplessness pleaded in the face of the provisions of the Indian Penal Code and Criminal Procedure Code assume a curious contrariness. One can take, for example, a judgement delivered by Justice V.R. Krishna Iyer of the Supreme Court of India.

Justice Iyer recently attended the plenary session of the World Conference on Abolition of Death Penalty held at Stockholm under the auspices of Amnesty International where he called strongly “to liquidate life taking lex talionis” as it was utterly incongruous with all that is precious in human culture.


He said: “Terror to meet terror. Non sequitur is the scientific answer… Can two murders be equal to no murder? Homicide is heinous, so is hanging. Can two wrongs make one right save by a perverted moral?” Justice Iyer went on to condemn the death penalty as “a criminological quackery and jurisprudential philistinism”.

With all this great disgust and condemnation of capital punishment, Justice Iyer declined to diminish death penalty on a convicted murderer when he was called upon to exercise his judgement in Joseph vs Goa Damman Diu. He observed as follows to clear the confusion in the public mind about the power of the judiciary to overrule the Penal Code.

“A death sentence with all its dreadful scenario of swinging desperately out of the last breath of mortal life is an excruciating hour for the judges called upon to lend signature to this macabre stroke of the executioner’s rope. Even so, judges must enforce laws, whatever they be and decide according to the best of their lights, but the laws are not always just and the lights not always luminous. Nor, again, are judicial methods always adequate to secure justice, we are bound by the Penal Code and the Criminal Procedure Code, by the very oath of our office.”

One can understand and even appreciate the delicate judicial dilemma Justice Iyer finds himself in, but one in constrained to say that it is nevertheless an instance of abject surrender to the prevailing judicial dogma with respect to the death penalty. One simply fails to understand why a judge who categorically denunciates the death penalty should “draw his inspiration from consecrated principles, by not yielding to spasmodic sentiments and vague unregulated benevolence” because he has to exercise “a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life” in the words of Justice Cardozo.

Binding Precedents

As a justification Justice Iyer states in his judgement: “The guidelines laid down by this court in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, a court can hardly help in the present state of the death penalty when discretion has been exercised by the trial court and it is difficult to fault that court on any ground, statutory or precedential, an appellate review and even referral action become too narrow to demolish the discretionary exercise of power by the inferior court.”

The question of judicial discretion and its exercise in capital cases was given detailed consideration in Jagmohan Singh vs State of UP. In his judgement Justice Palekar of the five judge Supreme Court Bench (1973) said that the appellate counsel’s arguments against the death penalty were practically similar to those which were advanced in the US Supreme Court in the case of Furman vs State of Georgia decided on June 29,1972.

By a vote of 5 to 4, the American Supreme Court held in this case that the carrying out of the death penalty in one case of a Georgia murder conviction, one of a Georgia rape conviction, none of a Texas rape conviction would constitute cruel and unusual punishment in violation of the Eighth Amendment.

The English Bill of Rights, enacted on December 16, 1689, stated that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. These are the very words chosen for the Eighth Amendment of the American Constitution.

But Justice Palekar did not feel that the American decision has any relevance to India. He said: “We have grave doubts about the expediency of transplanting Western experience in our country, Social conditions are different and so also the general intellectual level.”

Thus Justice Palekar went on to confirm the Law Commission of India’s Thirty-fifth Report on Capital Punishment (1967) in its conclusion that “Having regard, how ever, to the conditions in India, to the variety of social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its area, to the diversity of its population, and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”

Justice Palekar also distinguished between the position of the capital sentence with respect to capital cases before and after the amendment of Section 367 (5) of the Criminal Procedure Code. Prior to Amending Act 26 of Amending Act 26 of 1955, this section read as follows: “If the accused is convicted of an offence punishable with death and the court sentences him to any punishment other than death, the court shall, in its judgement, state the reason why the sentence of death was not passed.”

Judge Has Discretion

By the amendment this provision is deleted and, as the Code at present stands, punishment for murder is one of the two namely, death or imprisonment for life. Neither Section 302 of the Indian Penal Code nor any other Provision in the Criminal Procedure Code says in what cases the Capital punishment is to be imposed and in what others the lesser punishment.

However, the Judge noted that the policy of our criminal law as regards crimes including the crime of murder is to fix the maximum penalty- the same being intended for the worst cases, leaving a very wide discretion in the matter of punishment to the judge. Hence he thought that the exercise of judicial discretion on well-recognized principles is, in the final analysis, the safest possible safeguard for the accused, and that it will be impossible to say there would be at all any discrimination, since facts and circumstances of the case can hardly be the same as those of another.

Significantly, this judgement did not at all refer to the abolition of the death penalty in England, first experimentally in 1965 and than finally in 1970 and only selectively quoted from the Furman vs Georgia decision. In this case, in his judgement, Justice Douglas declared:

“It would seem incontestable that the death penalty inflicted on one defendant is unusual” if it discriminates against him by reason of his race, religion, wealth, social position or class, or if it is imposed under a procedure that gives room for the play of such prejudices… In ancient Hindu Law a Brahman was exempt from capital punishment and under that law punishment increased in severity as social status diminished.”

Making clear the unequal operation of the law on death penalty with regard to the Negroes, Justice Douglas observed: “A law that stated that anyone making more than 50,000 dollars would be exempt from the death penalty would plainly fall, as would a law that in terms said that blacks, those who never went beyond the fifth grade in school, those who made less than 3,000 dollars a year or those who were unpopular or unstable should be the only people executed. A law which in the overall view reaches that result in practice has no more sanctity than a law which in terms provides the same.”

While the enlightened juristic opinion in Western countries is fearlessly thinking in these terms, we in India, priding ourselves on our ancient values, civilization and culture (!), continue with scandalously iniquitous punitive practices.

What is remarkable is that the Law Commission of India was blind to the evidence in Western countries that the rate of murder and other serious crimes is rising by leaps and bounds despite rising prosperity, and that there is no correlation between poverty, illiteracy and crime on the one hand, and affluence on the other. Crime follows its on laws, it has no class creed or colour.

As noted by Sir Leon Radzionowicz, an international expert on criminology, and Joan King in their recent book, The Growth of Crime: The International Experience (1977) “when it comes to the kind of chronic peasant poverty that is almost he rule for vast numbers of mankind” we find a different picture because they are found to be usually the most honest. “It was the poor in the cities, living cheek by jowl with great wealth, who were under the greatest provocation and temptation to crime.”

The USA, which has reached the most spectacular heights of affluence, offers a glaring contradiction of the Indian Law Commission’s correlation between illiteracy, low intellectual level and morality. There is more crime and it is more violent. There are as many murders in Manhattan each year as in the whole of England and Wales.

Crime Rate Growing

From this evidence Sir Leon Redzinowicz concludes that incidence of crime has been going up in all parts of the world whatever the stage of development and among all segments of society. “No national characteristic, no political regime, no system of law, police, Justice, punishment, treatment or even terror, has rendered a country exempt from crime.”

In this context it would be useful to consider the propriety of the death penalty for dangerous and cold-blooded murderers. In the Pune murder case judgement the additional sessions judge rightly says that the accused “never saw meadows but only graves, never saw any stars but only mud”. Nor can there be any doubt that the murders were cold-blooded, deliberate and gruesome in the extreme and should be condemned as such.

But, if the accused failed to see the stars and meadows, I wonder if there can be any excuse for the criminal justice system also not seeing stars and meadows.

If we are really prepared to go to the depth of the matter, be patient enough about the judicial process as it is actually operating in capital cases, we will not fail to see that it is nothing but a ritualized and sophisticated form of the ancient Cain and Abel blood- feud. Alex Comfort has shown in his Authority and Delinquency in the Modern State how this primitive residue operates in the execution of criminals.

He notes, for example, how there was a practice in England persisting until the last century of disguising the condemned man as an animal by wrapping him up in cow-hide and making it an occasion for public festivity. Even the Medicine Hat, which the modern judge places upon his head to pronounce the sentence of death, has a long and distinguished anthropological history.

Public Execution Repulsive

But criminal laws and modes of execution have gone through a process of evolution. Public execution is no longer palatable to the modern civilized mind and so it is carried out in the seclusion of the prison cell. The Indian Law Commission on Capital Punishment came to the solemn conclusion that “an execution in public would be repulsive, and that is a sufficient argument against its introduction in the country. It a public execution is repulsive to the refined juristic sensibilities of our judicial administrators, one has a remote hope that our criminal justice system is evolving in the right direction.

Death punishment is on the retreat in the modern world. More than seventy countries have abolished it. The countries that have found it unnecessary are vary varied: large and small, industrial and agricultural of all races and continents. As one witness said to the British Royal Commission on Capital Punishment in 1953, he was puzzled why it should e supposed that Englishmen are so peculiarly brutal by nature that they need some special deterrent from murder. Now England has abolished it, but we in India seem to be labouring under the same misconception.

There is no evidence to show that presence or absence of the death penalty has any special effect on the incidence of violent crimes.

To come hearer home, in pre Independence days there was no execution for four decades in the old State of Hyderabad because the Nizam commuted every sentence. In the states of Cochin and Travancore capital punishment was not in existence of crime in those years was no higher there than in the rest of India.

The judicial reasoning in the Pune murder case is simple: cold-blooded murders have been committed: there is no room for pity and no redeeming factor either. Hence no leniency and only the death penalty will meet the ends of justice. This conforms to Lord Denning’s theory of punitive retribution. As he said before the Royal Commission:

“The Punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. There are some murders which in the percent sate of public opinion demand the most emphatic denunciation of all namely, the death penalty.”

The feelings of vengeance have primitive unconscious roots. As Arthur Koestler noted: “The desire for vengeance has deep, unconscious roots and is roused when we feel strong indignation or revulsion- whether the reasoning mind approves or not. Even abolitionists may sometimes not be proof against vindictive impulses. This does not mean that such impulses should be legally sanctioned by society, just as we do not sanction promiscuous impulses.”

Judges and the police tend to have a ritual faith in the efficacy of the death penalty. This is evident from the operation of the bloody code during the 19th century in England. It was unique in the world inasmuch as it listed between 230 and 32 offences punishable by death from stealing of turnips, writing threatening letters, to cutting down trees, picking pockets, shoplifting, etc. the exact number of offences was not known even to legal authorities!

The philosophy of such punishment was summed up in the formula of an 18th century judge who told the defendant that “you are to be hanged not because you have stolen a sheep but in order that others may not steal sheep”.

Is It Really A Deterrent?

“A punishment to be just,” said a pioneer Italian abolitionist of the 18th century, “should have only that degree of severity that I necessary to deter others.” Blackstone said that it was not lawful to deter at any rate and by any means.

How far is the death penalty a deterrent? Is it really a deterrent to dangerous criminals? Evidence suggests that it is not a deterrent to murderers who commit suicide one third of all murders do. It is not a deterrent to the insane and mentally deranged, nor to those who kill in a quarrel, drunkenness or sudden passion ad provocation. This type accounts for 80 to 90 per cent of all murders. It is not a deterrent to the one who believes he will never be found out.

Thus only the professional class of criminal is left who can be said to be kept in control or deterred by the threat of death and nothing short of death. But those who favour abolition of the death penalty and those who oppose it agree that murder is not a crime of the criminal classes; it is a crime of amateurs, of first offenders, not of professionals.

As regards the rural urban ratio of violent crimes it was found that criminality was concentrated in the extremes of rural and urban areas and that the crimes committed in rural areas were generally emotional whereas those committed in urban areas were preplanned. The study also found that crime is mainly an urban affair and the highest number of offences occur among the young and in the middle-income groups. This confirms Sir Leon Redzinowicz’s findings and sets at nought the Law Commission’s opinion.

More pertinent still are the findings of the American National Commission’s Report on violent crime. It says that violent crime, its perpetrator and its victims are found most often I urban areas characterized by low income, physical deterioration, dependency, racial and ethnic concentrations, broken homes, working mothers, low levels of education and vocational skills, high unemployment, high proportion of single males, over crowded and substandard housing, high rates of tuberculosis and infant mortality, low rates of home ownership and single family dwellings, mixed land use and high population density. All these combined together create an interrelated complex of powerful criminogenic forces.

As regards violent and dangerous criminals, in a study of the case histories of more than 400 violent prisoners in a large penitentiary in Boston done by Vernon H. Mark, Director Neurourgical Services, Boston City Hospital, and Frank R. Ervin, Director, Stanley Cobb Laboratories for Psychiatric Research, it was found that these violent people usually had four characteristic symptoms which were, however, not always present at the same time:

Characteristics of Criminals

1. A history of physical assault, especially wife and child beating; (2) the symptoms of pathological intoxication that is drinking even a small amount o alcohol triggers acts of senseless brutality. (There is some evidence that in the pathological intoxication the act of drinking, rather than alcohol itself, is the stimulus for brutality.) Individuals who become violent after taking even a small amount of liquor by mouth may be injected intravenously with enough alcohol to produce clinical drunkenness without any signs of violent behaviour. (3) A history of impulsive sexual behaviour, at times including sexual assaults; (4) a history (in those who drove cars) of many traffic violations and serious automobile accidents. The authors term this set of symptoms together as the “dyscontrol syndrome”. (Violence and the Brain).

There is a theory of social hygiene which says that people who commit bestial murders should be destroyed not as a punishment but because we are better off without them. Why should they be maintained at state expense with the risk moreover that they might escape and commit another crime? Even members of the medical profession sometimes say that if a criminal has no moral sense and is a psychopath he should be regarded as human refuse, dangerous to society, deserving to be hanged.

Sir Earnest Gowers, Chairman, Royal Commission on Capital Punishment, fears that the above argument has disturbing implications. “If it is right to eliminate useless and dangerous members of the community, why should the accident of having committed a capital offence determine who should be selected. These are only a tiny proportion and not necessarily the most dangerous…. It can lead to Nazism.”

Those favouring the death penalty say that it should be retained for exceptional offenders such as Landru or Eichmann on the ground that it should be used for social monsters or for crimes against humanity. The Pune multiple murders obviously fall in this category: society would be acting in self-defence when it removes such persons as dangerous beasts.

Social Monsters

But, according to Albert Camus, in resorting to this philosophy of elimination of social monsters we would be approaching some of the worst ideas of totalitarianism or the selective racism, which the Hitler regime propounded.

But, even apart from these dangerous criminals or social monsters who, after all form a microscopic minority of the murderers, the strongest argument against capital punishment is that, like the rest of the legal system, it is manifestly unequal in its operation against the rich and the poor. It would be instructive to refer here to the opinion of the warden of the Sing Sing Prison of New York:

“Not only does capital punishment fail in its justification but no punishment could be invented with so many inherent defects. It is an unequal punishment in the way it is applied to the rich and poor. The defendant of wealth and position never goes to the electric chair or to the gallows. Juries do not intentionally favour the rich, the law is theoretically impartial but the defendant with ample means is able to have his case presented with every favourable aspect while the poor defendant often has a lawyer assigned by the court.”

That, in a nutshell, is the argument for the abolition of capital punishment in India. Finally, to quote from a recent reply to me from Prof Sir Leon Radzinowicz, Director, Institute of Criminology, Cambridge University.


“…I do not know the situation in India sufficiently well to express a definite opinion on the issue which you raise, but from what I know about the subject and the varying conditions in many parts of the world, I do not see that conclusive evidence has been produced to justify capital punishment in India.”

Bal Patil : Secretary-General, All India Jain Minority Forum, New Delhi,
Ex-Member, Media Expert Committee, Govt. of India,
Ex- Member, Maharashtra State Minority Commission, Govt.of Maharashtra, Mumbai.
Ex-President, National Society for Prevention of Heart Disease & Rehabilitation,
Co-Author: JAINISM (Macmillan Co 1974). with Colette Caillat, (Member Institut de France, Paris,) & A.N.Upadhye, (ex-President, All-India Oriental Conference,) Author: SUPREME COURT'S VOLTE FACE ON CONSTITUTIONAL AMENDMENT (Published by Govt. of Maharashtra, 1980) Author:Jaya Gommatesa! Foreword by C.Caillat (Publisher :Hindi Granth Karyalay, 2005)

Patil Estate, 278, Tardeo Road, Mumbai-400007,
Tel:91 22 2386 1068, Fax: 91 22 23893030, Cell: 98692 55533
Website: http://jaina.in
Email: balpatil@globaljains.com



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