August 30
INDIA:
Death by design
Ever since Dhananjoy Chatterjee was executed in Calcutta a fortnight ago,
my brain has been reeling from the arguments and counter-arguments we
heard in the run-up to the hanging.
Most of the controversies that were created by those opposed to Dhananjoys
hanging, struck me as being red herrings. It was said that he was poor and
therefore unable to avail of proper legal assistance. This is simply not
true.
By the end, he not only had fine legal minds working on his behalf but he
became the subject of a national campaign to save him.
Others argued that he should never have been convicted in the 1st place
because the evidence against him was purely circumstantial. I'm not sure
that this is true (the judge who convicted him has since gone to the press
and described what sounds like clinching evidence).
But if the entire appeals process resulted in the conclusion that
Dhananjoy was guilty then, I think we are obliged to accept the verdict of
the Courts - there's not much point in having a legal system otherwise.
Least convincing of all was the claim that he should be let out of jail
because he had already spent 14 years in prison waiting for the appeals
process to be exhausted.
This is a dangerous and foolish argument; carried to its logical
conclusion it would mean that any murderer who managed to delay his
execution by exploiting the slowness of the Indian legal system should be
allowed to go free.
To argue that had Dhananjoy been sentenced to life imprisonment, he would
have been released in 14 years is also pointless; he wasn't sentenced to
life imprisonment, he was sentenced to death.
Nor does the argument about mitigating circumstances apply. The death
penalty should only be imposed in the 'rarest of the rare' cases.
By any reckoning, a security guard in a building who rapes and murders a
schoolgirl he is meant to protect, commits a crime that is particularly
reprehensible. If he doesnt deserve the most extreme punishment, then who
does?
So, for better or worse, I think we are obliged to accept that if there is
a death penalty on the statute books, then Dhananjoy's crime was probably
exactly the sort of offence that those who wrote the law had in mind when
they instituted the punishment.
My concern is not with the Dhananjoy case as such; it is with the uproar
over the death penalty that we witnessed in the run-up to the hanging.
There is a background to this. The death penalty was part of my moral
philosophy syllabus when I was at university and after many stormy debates
and tutorials, I finally came to the conclusion that there is no case for
executing criminals.
All punishment is based on the grounds of deterrence. If we can prove that
the death penalty deters potential murderers then - regardless of the
moral issues involved - there is a strong pragmatic argument in its
favour.
But here's the point: nearly all the empirical evidence suggests that the
death penalty does not function as any kind of deterrent.
Take the case of Western Europe where most countries have now abolished
the death penalty.
If the deterrence argument holds, then the murder rate should have gone up
once they stopped hanging criminals. In fact, the opposite has happened.
In nearly every case, the murder rate has actually come down once the
death penalty has been abolished.
Another example is the United States where some states have the death
penalty and some don't. For the deterrence argument to be valid, those
states that retain the death penalty should have lower murder rates
(because potential murderers are deterred) than those that have abolished
it.
But every study has shown that there is either no difference between
states in this respect or even, that states that use the death penalty
have higher murder rates than those that have abolished it.
If the pragmatic arguments for the death penalty don't hold, then consider
the strong moral arguments against it. Most of us are appalled by
societies that amputate limbs. The whole of India was horrified by the
Bhagalpur blindings.
Obviously, at some level, we are revolted by the thought of doing
permanent physical damage to another human being. Why then do we suspend
that revulsion when it comes to the death penalty - surely the most
permanent physical damage that society can do to a human being?
Is it simply - as opponents of the death penalty argue - because we have
been conditioned to believe that hanging is okay but blinding is not? Take
the Dhananjoy episode - India's 1st TV hanging.
Many people I know who were supporters of the death penalty suddenly began
to have 2nd thoughts as the drama unfolded on the TV channels. They felt
as though they themselves were participating in killing a poor man. It was
a guilt that many felt they could do without.
Could it be that if we actually saw all the hangings for ourselves - saw
people being killed on our behalf - we would change our minds and begin to
regard the death penalty with the horror we currently reserve for
amputation or blinding?
Then there's also the old argument about whether society has the right to
take a life. After all, the argument goes, society did not grant life. So
what right does it have to take it? I'm not personally convinced that this
makes any sense.
Society does not grant us freedom. (I would hate to think that my freedom
is a favour granted to me by the government). But it still has the right
to take it away by putting me in prison. Nevertheless, most opponents of
the death penalty do offer this argument.
The one argument that does work though is the one of fairness. In all
societies - including the US - the majority of people who are hanged tend
to be poor.
Rare is the rich person who goes to the gallows. What Dhananjoy did was
terrible and reprehensible. But assume that a neighbour had raped and
killed the child. Would he have been hanged? Would he have been treated as
Dhananjoy was? Somehow, I doubt it.
If the case against the death penalty is so strong, then why do I have
mixed feelings about the uproar that surrounded the Dhananjoy hanging?
Well, because 25 years after I finished studying moral philosophy, my
instincts have been shaped by the Indian reality. And while the Dhananjoy
kind of case makes headlines once every few months, the truth is that the
death penalty is carried out every day on Indias streets.
In every Indian city - and in the so-called disturbed areas - policemen
have decided that they will never secure convictions from our flawed legal
system. So, when they find a man whom they believe is guilty of murder,
they simply shoot him and claim that he died in an encounter. This is no
secret.
Even when the encounter is obviously false and staged - like the Ansal
Plaza murders - the middle-class is quite happy to go along with the
fiction handed out by the police. Even though this kind of death penalty
is extra-judicial - the policeman is arresting officer, judge, jury and
executioner -- nobody seems to mind.
My question is: can a society that tacitly sanctions police-sponsored
executions really afford to tie itself up into moral knots over something
like the Dhananjoy hanging? Say what you will about Dhananjoy, but he was
given every opportunity to defend himself. And when he did die, he was a
guilty man, executed after due process.
On the other hand, the people who die in police encounters are not always
guilty. And certainly, there's no sense in which theres any due process.
But there are few hunger strikes and few relay fasts in protest.
My problem with the middle class outrage that surrounded the Dhananjoy
hanging is that it was illogical and inconsistent. The truth is that
educated Indians are content to turn a blind eye to extra-judicial
killings.
Because they happen far from public view and because the policemen usually
invent some cock-and-bull story about a violent encounter, we feel no
middle-class guilt. In the Dhananjoy case, however, we saw the drama
unfold before our very eyes.
There were no excuses about a police party having had to open fire in
self-defence. Our society took a conscious decision to calculatedly end a
mans life. And for once, we saw it happen, day after day, on TV.
If I thought that all the pious outrage that accompanied the sudden
upsurge of anti-hanging feeling was based on logic or philosophy, or even
if it was was well considered, I would support it.
But I doubt if the protesters have thought this one through. Nor are they
prepared to extend their concern into the other areas where lives are
routinely ended by society and its guardians.
The truth is not that we had a moment of moral awakening. It is that for
once, because of TV, we saw for ourselves some of the unpleasant things
that go on in India - and are done in our names.
And, faced with this reality, the great Indian middle class simply funked
it.
(source: Vir Sanghvi, Hindustan Times)
