It's not just a question of life and death

There is much wrong with the enforcement of the death penalty in India. But the abolitionist arguments do not hold. Arghya Sengupta writes.
None | By Arghya Sengupta
UPDATED ON MAR 03, 2013 11:26 PM IST

Karan Thapar in his article No terminal benefits (Sunday Sentiments, February 23) advances several principled and practical arguments to justify the abolition of the death penalty in India. Though Thapar is a man whose views I have the highest respect for, his abolitionist arguments suffer from grave logical fallacies and an ill-conceived moral position. Let me consider his arguments in turn and demonstrate why.

His main practical concerns with the death penalty are that there is no evidence to suggest that it is an effective deterrent and has been inconsistently awarded by the country's courts. First, it is imperative to understand that whether a punishment is an effective deterrent or not is a determination that is country and culture-specific. As Otto Kahn-Freund, professor of comparative law at Oxford wrote, "[W]e cannot take for granted that rules or institutions are transplantable." Whether indeed the death penalty is an effective deterrent for crime in India cannot be demonstrated on the basis of the views of a former US attorney-general and an Amnesty International Report on Canada, as Thapar seeks to do. On the contrary, in India, an argument claiming its ineffectiveness as a deterrent was expressly rejected by the Supreme Court in Shashi Nayar vs Union of India (1992).

At the same time, Amnesty International's conclusion that the murder rate in Canada dropped by 27% after the death penalty was abolished, and Thapar's endorsement of it, is logically flawed. Such an inference, based on two discrete statistical facts, can at best show a possibility that these facts are connected. But they can never, by themselves, demonstrate causation. Claiming the abolition of the death penalty as a causal factor for the drop in murder in Canada is based on unguided intuition and ignores the range of other factors at play. This is a logical fallacy that any purely statistical effort to argue against the death penalty suffers from.

On the other hand, Thapar's point that the Supreme Court has been inconsistent in awarding the death penalty is undoubtedly valid. But does such inconsistency make it a ground for abolishing the penalty? To assess this, let us look at the petition by 14 retired judges that Thapar cites. This petition was not a call for abolition - it was, instead a call for the consistent application of the law. There is no reason to believe that the Supreme Court is unwilling to correct itself, declaring the judgements following the decision in Ravji (1996) to be per incuriam. In fact, the inconsistent application of the law should be used to put pressure on the court to stay all pending death sentences and set up a constitution bench to clarify the meaning of the 'rarest of rare' standard.

Finally, Thapar's argument on moral principle is based on the moral wrongness of taking life, something the State cannot confer. This is a curious position. The State can take away property (acquisition by eminent domain), liberty (imprisonment) and freedom of speech (on grounds of public order) none of which it can strictly confer. At the same time, whether indeed it is God who confers life and takes it away in ordinary circumstances, a position that Thapar adopts through his endorsement of the 'not playing God' rationale, is based on a belief system which is not universally shared. This restitutionary basis for moral validity - you can take away only what you can give - thus cannot be a wholly secular axiom. Moreover, it leads to the absurd conclusion of several widely accepted practices being considered immoral.

It must also be pointed out that Thapar's own morally permissible alternative of life imprisonment without parole till natural death (adopted from Fali Nariman's view) also involves the State taking away a person's liberty, something which it cannot give, for an inordinately long period of time. In recommending this, Thapar seems to be hoist by his own principled petard. Further, he fails to consider the practical concerns that such a policy option may entail, to which the family of Ripan Katyal, murdered by the hijackers of IC-814 seeking the release of three terrorists imprisoned in India, will undoubtedly testify.

There is much that is wrong with India's retention and enforcement of the death penalty as Thapar very powerfully argues. However abolishing the death penalty itself does not follow as a consequence. Doing so on these grounds would be a grave error.

Arghya Sengupta is a stipendiary lecturer in law, University of Oxford

The views expressed by the author are personal

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