Selective Conscience And The Death Penalty
By Salina Wilson
01 August, 2015
Countercurrents.org
In a 1.2 billion population[1] when out of 477 people on the death row[2], in the last five years 3 were actually executed, the number sounds small- after all it is just a number to most readers- because once you are convicted of a heinous crime, your selective conscience decrees that this person has ceased to be human. Kasab, Guru and Memon constitute these “small numbers” who were judged in the “rarest of the rare” category. Evidence, process inconsistencies and the fair trial debate aside- what is the simplest pattern one can draw from this? - All of them were convicted in cases of terror, all were Muslims. In a communally divided country like India, a decision on their lives can never be independent of politics and interference by the executive which by design is permitted at different stages of the case. Does it make a difference whether the government at the centre is BJP or Congress? I doubt it since 2 of them were hung during the Congress rule.
If I were to go by official statistics- death penalty would be restricted to these small numbers which were thrown open for public debate, had an opportunity for human rights activists, lawyers and journalists to intervene or cover the entire process going into the most intricate details to weave a gripping terror story that ended with the tightening of the noose. What about extra judicial killings carried out with complete impunity? Between 2010-2012, there were about 429 cases of fake encounters registered according to government statistics[3]. The National Human Rights Commission had in the year 2013, declared 44 cases of fake encounters in the state of Manipur alone between the years 2005-2010[4]. In the year 2010, the NCRB records[5] state that between 2006-2010, there were 276839 complaints of against the police for “illegal detentions” “fake encounters” “extortion” “torture” etc. whereas inquiry was instituted for only 35% of them.
Human rights activists would see these numbers as grossly underestimated figures, even then, those of us who would still look at these 429 fake encounters as “numbers” must contrast this with the number of victims in the 1992-93 Bombay riots- over 900, the 1993 Bombay serial blasts- i.e. 257, the number of people killed in the 1984 riots- 2800, the number of Muslims killed in Gujarat 2002 riots- 790[6] and then ask themselves after studying the trends of convictions and sentencing, whether each of these incidents- be it an encounter, be it a riot or be it a blast- have had similar if not the same consequence. A pogrom and a fake encounter chooses selectively -whom to kill in cold blood. Would this not amount to some form of terror as well? Ask further whether or not we must, irrespective of the numbers, irrespective of who the murderers are or who are being killed, be raising our voices against each one of these killings? Why is our outrage so selective and biased? Why do we in certain instances, vehemently propose the harshest punishments while in others, just look the other way believing that the accused were “doing their duties” or the victims “asked for it”. Do we realise that our selective outrage translates into a collective conscience that chooses to hand-pick people to be killed by the state- based on their religion, their access to the most powerful lawyers in the country, their class, caste, political back up and other significant stratifications that precariously decide who gets to live and who gets executed by the state. Nothing is black and white after all!
In Prakash Kadam vs. Ramprasad Vishwanath Gupta (2011) Justice Markandey Katju and Justice Gyan Sudha Mishra held:
“in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake `encounters' are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.”
Colossal amounts of data and testimonies emerging from various parts of India substantiate how these encounters are carried out with so much ease and impunity. Taking into perspective the precedent quoted above, what precisely is being demonstrated through the lack of active discouragement of such unlawful killings? Our very understanding of terror can be challenged through these incidents of killings.
Contrast the aforementioned incidents of violence with instances of neglect and state apathy towards the poor which is by design and not by default. Think about the number of people who are homeless and take shelters on pavements only to be crushed in the night by the death vehicles of the rich who shall have enough protection under the laws of our land. If not that, they could die of hunger or lack of access to health facilities. These victims are the “underdogs of the city” which the state wants to wipe clean anyway and while they garner votes through their “Poverty alleviation programmes”, they are actually eliminating the poor by strategically ignoring their existence. Think about the 3000 victims killed in the Bhopal gas tragedy. Do our hearts wrench for these victims? Does our blood boil at the thoughts of the rich and powerful people who must be held accountable for these deaths? No of course not- they are civilized people who need protection by the laws- they are likely to reform as opposed to these terrorists who need to be sent to gallows without discussion, why even debate a fair trial or fair sentencing for them?
I personally disagree with death penalty in principle not only because of the arbitrary way in which it is allotted, not only because of the levels of inconsistencies as demonstrated above compounded by the influence of the executive over the judiciary, not only because I support restorative justice over retribution, not only because I do not associate with the culture of barbaric blood thirst; I disagree because it is fundamentally wrong to kill. In my analysis, it does not serve any purpose other than demonstrating to the general public that something has been done about an instance of violence thereby excusing the state of the responsibility and accountability to resolve or address the structural factors underlying that violence.
Notes
[1] Census of India, 2011
[2] http://www.bbc.com/news/world-asia-india-20708007
[5] http://ncrb.nic.in/CII2010/cii-2010/Chapter%2016.pdf
[6] http://news.bbc.co.uk/2/hi/south_asia/4536199.stm
Salina Wilson is an independent researcher with a keen interest on law and gender. She previously worked with Human Rights Law Network on issues of violence against women and researched on the functioning of human rights commissions in India. Salina holds a Masters in Social Work from Tata Institute of Social Sciences and a Bachelors degree in Sociology from Delhi University.
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