India’s tryst with the death penalty
LEVEL PLAYING FIELD
The Hindu, 11 February
[Note: Muhammed Afzal has been sentenced to death by hanging for his alleged role in the attack on the Indian parliament on 13 December, 2001.]
IN 1793, the French Convention was debating the fate of the deposed and imprisoned king, Louis XVI. Thomas Paine, an Englishman who had already played a key role in fomenting the American revolution, and whose epochal book, Rights of Man, had made him a criminal in his native land, rose to address the assembly.
“Citizen President,” he began, “my hatred of and aversion to monarchy are well known. They are based on reason and on conviction, and you would have to take my life before you could eradicate them.” But, he went on, he would not and could not support the proposal to execute the former king. “Since France has been the first of all the nations in Europe to abolish royalty, let her be also the first to abolish the penalty of death, and to substitute for it some other punishment.”
Paine spoke as a proud “citizen of the world”, and in this instance, as in many others, as a voice for the fully human civilisation that we have yet to achieve. In contrast, the voices crying themselves hoarse for the hanging of Muhammad Afzal speak for the residues of inhumanity, and if they are heeded, a primary condition for the existence of civilised society – respect for the sanctity of human life – will have been profoundly undermined. The claim that the execution of Afzal is required by the “collective conscience” of the nation insults and compromises that conscience. Yes, no doubt, this is a death that many millions in India would welcome and some would celebrate. But the word “conscience” is here grossly misapplied to a cocktail of bloodlust, bigotry, and vindictiveness. It is the duty of the judiciary to act as a check on this mentality; instead, the court has legitimised it, and in doing so, has made the citizens of India less secure and less free.
It is often forgotten that the ancient injunction of an “eye for an eye” was in its day an attempt to restrict inequitable punishments, to ensure that no more than an eye was taken for an eye. Since then, one hopes, our ideas about what constitutes justice have become more refined. In particular, it is generally recognised that the use of punishment to appease public demand is itself a species of injustice and inimical to democracy. To quote Paine again, “an avidity to punish is always dangerous to liberty”. Or, as The Temptations put it in their soul masterpiece of 1969, “Ball of Confusion”: “an eye for an eye, a tooth for a tooth … vote for me and I’ll set you free.”
The recognition of human fallibility is a fundamental argument for the rule of law. The irremediable nature of the death penalty makes it incompatible with that rule.
In Britain in the mid 1970s, in response to the Irish Republican Army’s terrorist campaign, many civil liberties were sacrificed, but the British Parliament did at least resist calls for the reinstatement of the death penalty, which had been abolished a decade earlier. As a result, though they were found guilty of horrific crimes of mass murder, the people known as the Birmingham Six and the Guildford Four were not put to death. They served 14-17 years in prison before their innocence was finally established and accepted by the courts – but at least they were still alive and could be released to enjoy their freedom and their vindication.
There is already far more doubt about Afzal’s guilt than there was about the guilt of the Birmingham Six or Guildford Four at the time of their convictions. If Afzal is put to death, and evidence of his innocence subsequently emerges, there will be no way to rectify the error. That is why Moses Maimonides, the 12th century Arab Jewish theologian, argued, “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death.”
India’s use of the death penalty is of course far more restrained than the US’s (not to speak of China’s). But with eagerness to emulate U.S. society currently so widespread in India, it is worth noting that the U.S. experience shows that the death penalty is no deterrent to violent crime, and especially not to terrorist crime.
In the 10 years from 1997 to the end of 2006, the U.S. executed 700 convicted criminals (already, since the new year, another seven have been killed). However, not all U.S. States have the death penalty, and in those States which do not, the murder rate is substantially and consistently lower than in those which do. Some research also indicates that executions (or more precisely, the publicity attending them) actually increases the number of murders. Globally, the murder and violent crime rate in the U.S. is on average three times higher than in European countries that have abolished the death penalty.
By commuting the sentence on Afzal and going on to abolish the death penalty altogether, India has the chance to join a growing vanguard of progressive and democratic nations. Eighty-eight countries have now abolished capital punishment; thirty others have not used it for 10 years. Since 1990, more than 40 countries have abolished the death penalty, including South Africa, Mexico, the Philippines, Turkey, and nearly all countries in eastern Europe. Abolition of the death penalty is a precondition for membership of the European Union, and European and other States will not extradite terrorist suspects to the U.S. if they are to face the death penalty there.
Italy has announced that it will use its current term on the Security Council to promote a global ban on the death penalty. In doing so it has the support of a majority of U.N. member-States as well as all those working worldwide to enhance respect for human rights. In contrast, the execution of Afzal is bound to undermine India’s reputation and specifically its campaign for a permanent seat on the Council – unless, of course, it’s been decided that this campaign is exclusively dependent on Washington’s sponsorship.
Whatever he may be guilty of, Afzal has not been accused of being either a direct participant or a major conspirator in the 2001 attack on Parliament. The murder of 2,000 Indian citizens in Gujarat in 2002 was, by any realistic standards, a more severe and damaging attack on the fabric of Indian democracy. Yet prominent individuals whose complicity in that crime is far more direct and more clearly established than Afzal’s complicity in the attack on Parliament remain unpunished, and indeed have yet to be brought before a court of law.
There is no excuse for the premeditated and avoidable physical destruction of a human being. That applies as much to States as to individuals. In fact, the State especially, as the guardian of the right to life, betrays its fundamental trust when it executes one of its own. Here one sees not the majesty of the law, but its opposite: the obscenity of legally sanctioned murder. The upshot is that society is coarsened, reckless authority is emboldened and respect for human life is decreased.
