“You look at the crime and you look at the criminal. If it’s a dope dealer who guns down an undercover narcotics officer, then he gets the gas. If it’s two dope heads who gangrape a 10-year-old girl and kick her with pointed-toe cowboy boots until her jaws break, then you happily, merrily, thankfully, gleefully lock them in a gas chamber and listen to them squeal. It’s very simple. Their crimes were barbaric. Death is too good for them, much too good.”
– John Grisham, A Time to Kill
Our consciousness lies at the root of all our decisions. If we think about it, our thoughts are what make us who we are. Our thoughts are what create societies, rules, laws and the punishment for flouting those laws. Everything we do, or want done, or cause to be done is dictated by the way we think. Our notion of what is right or just or appropriate is also likewise determined by our thoughts, which is why we often find our thoughts, ideas and selves at the antipode to another person’s. This leads us to the inevitable question: what is the distinction between our minds and the mind of a criminal, and who is to say whose idea is superior and should prevail over the other?
The death penalty has existed in our societies for over 4,000 years-initially for crimes as minor as stealing bread, but also for freeing a slave or adultery. It has been used throughout the world, by the most civilised societies and the remotest tribes. It has been invoked as a deterrent and has been an effective measure to curb crime. Today, we classify the death penalty as a punishment of last resort, reserved for the ‘rarest of the rare’, for crimes so diabolical that it gives us nightmares as a nation, crimes so chilling and extreme that for months after the reporting of such a crime, people hesitate to venture onto the streets out of fear.
December 2012 was such a month. The brutal gangrape and murder of a 23-year-old physiotherapy graduate shocked and shook the nation to its core. India erupted in anger over the fate of young Nirbhaya, the fearless one, who died for no fault of hers except perhaps the fault of being credulously naïve in a world where beasts such as her rapists roam free. Today, in January 2020, seven full years after her brutal rape and murder, we are still discussing the merits of the death penalty. At every mention of capital punishment, we debate its pros and cons, and ask how we, as a civilised society, advocate death as a form of punishment.
For me, it is straightforward. The young woman died for no fault of hers. She died an agonising death she certainly did not deserve. The Supreme Court, the country’s highest court, described the crime against her as “diabolical in nature”, for which she paid the ultimate price. Critics of the death penalty often argue that death, as a form of punishment, is no deterrent, that there is no credible evidence of its efficacy, that its use has not led to a fall in crime rates, but the truth is that you cannot take a purely statistical view on the nature of a crime.
As a society, one of our primary duties towards citizens is our duty to protect them. We may debate the death penalty and the (in)humanity of forcibly taking away the life of a person deemed unfit, but society functions on the basis of a greater common good, the greater good of a greater number of people. If the action of one member of society irrefutably and irrevocably poses a dire threat to society at large, and he is adjudged to be beyond reform, the only logical way forward is to eliminate the threat.
(Pinky Anand is a senior advocate serving as Additional Solicitor General of India)