Our humanity, and theirs

The debate over the death penalty implicates our deepest moral and metaphysical assumptions. But Indian public discourse is colonised by two tendencies that make it impossible to have a dialogue on such serious issues on their own terms. Everything does have a politics. But a culture so obsessively hunting for subtexts to every issue often misses the text itself. Deep moral issues get obscured as a result. The second tendency is the claim that once something has been declared to have the imprimatur of collective sentiment, all reflection must stop. The Indian legal system, for once, dealt with the Kasab case matter of factly, with due process, under existing law. The final outcome was consistent with the law as it exists. This particular matter should rest there. But the attempt to construct the exercise of the death penalty as the expression of some collective retribution is deeply problematic in two ways. It privileges retribution as the only legitimate moral discourse. But even more dangerous for democracy, it constructs a false idea of collectivity.

The social logic of punishment is often governed by more than just considerations of morality, justice, or the functional need to maintain social order. Punishment becomes the occasion to forge a collective identity: you identify with the community by participating in an act of collective vengeance. Under this construction, your refusal to participate in the sentiment of vengeance places you outside the bounds of that community identity. It is not an accident that politicians like Narendra Modi make support for hanging this or that character a test of your national solidarity. But this thought runs widely on prime time channels, where the usual suspects declaim that your commitment to community must be questioned if you do not lend your weight to this expression of collective sentiment. From a democratic point of view there are two things problematic in this. It condescendingly rubbishes all genuine moral disagreement under the need for a falsely constructed idea of community solidarity. And it privileges the idea that there is a collective pronoun "we" before which all arguments from principle or conscience must be immobilised.

This is not the space to delve deep into all the philosophical issues. But the argument from collective retribution has always been the weakest. And even advocates of the death penalty should worry that we place so much stock in it. It suggests that the death penalty tells you something more about our needs for expatiation than justice. The argument that the death penalty deters crimes is empirically untenable. The most complex moral argument for it was Immanuel Kant's, who, paradoxically, thought that the death penalty was a way of recognising the humanity of the perpetrator. For Kant, the most important aspect of our humanity is that we are responsible agents. Punishing perpetrators in accordance with their crime, under the principle of ius talionis, is attributing responsibility to them, and therefore acknowledging their humanity. Some might find this conception of humanity too abstract. But the important point was that even punishment needed to acknowledge a shared humanity; that is a requirement no other consideration, deterrence or vengeance could do away with.

But hopefully, we can find space to debate this issue without political exigencies or the frenzy of emotional arguments that self-appointed custodians of collective sentiment impose on us. India is among the 39 countries that have, yet again, voted in the UN General Assembly against a resolution calling for the abolition of the death penalty. This is a motley crew that includes democracies like the United States and Japan as well as many odious regimes. But the weight of global norms has been shifting, with more than a hundred countries now signing up for the abolition of the death penalty.

It could be argued that even in India, despite the surface frenzy, norms are shifting. The Supreme Court has said that the death penalty should be applied in the rarest of rare cases, though the number of crimes to which it can be applied has not shrunk. We have about five hundred inmates on death row. And while uncertainty is psychologically torturous for the convicted, our reluctance to execute even those who have been sentenced does suggest that there is more healthy ambivalence about exercising the death penalty in our system than before. Ironically, various ethnic groups do press for commuting the death sentences of their preferred convicts: the Akali Dal mobilised for Balwant Singh Rajoana; Tamil legislators passed resolutions to change the sentences of those accused of killing Rajiv Gandhi. The politics behind this was despicable, but this position does give an opening to argue about death sentences more generally.

The case for abolishing the death penalty is compelling. The former chief justice of India, P.N. Bhagwati, memorably articulated it in his extraordinary judgment in Bachan Singh versus State of Punjab, one of the great dissents in the history of the Supreme Court. He meticulously and with controlled passion went through all the legal, moral, historical and even literary arguments on this issue.

I will not go into these arguments here, but two unusual aspects of Bhagwati's scepticism about the death penalty are worth recalling. The first is that even if we find metaphysical disputes over the death penalty are not amenable to resolution, the practical arguments against it are quite compelling. There is too much evidence that justice systems, by design or unconsciously, make too many mistakes. The US's justice system is absolutely scandalous in this respect. There is no reason to be confident that ours does much better. Bhagwati referred to a pattern of "confusion, contradictions and aberrations in the system". A study by the People's Union for Civil Liberties, which looked at all death sentences from 1950 to 2006, correctly described sentencing in these cases as a "lethal lottery". Even in the Supreme Court, sentencing is capricious, putting all kinds of equality rights in jeopardy. Against this backdrop the idea that a miscarriage of justice can become systematically irrevocable should give one pause.

But a second, unusual point he made was this. Any regime gets tainted by the forms of violence it uses. He endorsed a point made by Albert Camus, which had then became the basis for the British Royal Commission on Capital Punishment. Capital punishment has a touch of totalitarianism about it: it legitimises the idea that it is all right for the state to eliminate anyone whom it finds dangerous or useless, even when there are other ways the danger can be contained. Bhagwati mobilised the idea that India also has another powerful tradition of thinking against capital punishment that false constructions of collective identity should not be allowed to erase. In the zeal to construct and then eliminate monsters, we must not lose sight of our own humanity.

The writer is president, Centre for Policy Research, Delhi

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