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The company of death

October 30, 2003

A few weeks back, Justice Mahendranath Patnaik handed down his verdict in the trial of Dara Singh and his fellow accused for their roles in the heinous murders of the Australian missionary Graham Staines and his two children in Orissa: death for the prime figure, and life imprisonment for a dozen others. Following various pleas of innocence, claims and counter-claims of guilt along the trial, and even some prayer for mercy by the defendants' attorneys, Justice Patnaik decided that the crime had passed the borders of human conduct, and the harshest justice was deserved.

The incongruity of imposing the death penalty for the murder of a Christian Australian is striking since neither qualification permits the taking of life. The Australian high commission that welcomed the verdict was surely aware that in 1985, Australia abolished the death penalty, including for the most horrific crimes. And some thousands of years previously, various prophets of the Judeo-Christian tradition noted that life is the domain of their God, and not a matter over which mere mortals could claim much authority. Gladys Staines, the slain missionary's wife, quickly turned to the language of forgiveness, preferring to focus on her -- and her husband's -- work instead.

Still, this isn't Australia, and it certainly isn't a Semitic nation. Indian justice isn't bound by the verdicts that might be obtained elsewhere for crimes committed on our soil, and the irony of condemning Dara Singh to death for the Staines murders is just that -- ironic. India's application of this punition must be judged by independent standards.

The arguments against the death penalty are numerous. The justice system necessarily reflects the social and economic biases of the day; it is often the poor, the disenfranchised, the minorities -- the people who cannot afford vigorous defense -- who suffer the most from extreme provisions in the law. The processes of investigation, prosecution and conviction are imperfect, and the risk of killing the innocent is too high. The penalty does not deter crime; there is little statistical evidence to support those who argue that having such punishment on the books reduces the likelihood of violent crime. And often, even the eventual execution of the guilty does not offer meaningful closure to the families of victims; lost loved ones aren't returned by the punishment.

But these objections do not contend with the core question, namely, does any crime deserve to be met with capital punishment? If the system could be perfect, if victims' families could find solace, if justice were truly blind to privilege, etc would the application of the death penalty be justified?

These ideals -- if attained -- would certainly improve the justice system itself, but the progressive argument has contended historically that they are nonetheless insufficient. Questions of morality cannot be answered from procedural considerations, they must also contend with the more inward-looking question: what do our choices say about us? One answer lies in looking around and asking a related question. By the practice of the death penalty, what company do we keep in the world's family of nations? The company we keep isn't always conclusive, but it can be instructive.

Amnesty International maintains 
a list of the countries that are abolitionist in law or practice, and others that are retentionist. With the notable exception of the United States and Japan, the death penalty is absent from nation states of self-governed peoples, and is retained by a large number of the unelected governments of the African continent and elsewhere. It is mostly absent in societies of the Judeo-Christian tradition, and widely available in Islamic countries. In Asia, whose nations are a motley crew of freedoms and faith, no such lines of separation can be drawn; nearly all of the continent's people -- free and fettered alike of all faiths -- live in retentionist lands.

No nation is unequivocally identifiable as good, and we mustn't read too much into such observations. Nonetheless, it is troubling that we find ourselves of similar mind with dictators who would like to do away with their political opponents, as well as States that blur the lines between religion and faith. After all, our secular and free society is nothing like those countries.

True, and in recognizing that, we might predict how Indian opinion will evolve in the years ahead, despite the poor company we now keep. In the abolitionist states, a significant political discourse has built up around the issue of capital punishment, and an important conclusion holds that the death penalty is an inhuman choice. This advocacy contends that there are no justifiable exceptions, and life is more sacred than our ability to sanctify it. This view appeals to the humanity of the punisher, and not the punished, and asks that we simply hold ourselves to a greater expectation. It urges restrained use of the powers of judgment and sentencing, not from the fear that we may act in error, but instead for the certainty that we act with tempered justice.

Having cast our lot with justice and freedom, however imperfect they may appear today, we will inevitably encounter this development too. One reason is that countries that have decided upon the progressive view strongly advocate it for others as well. Further to their stance against capital punishment in times of war, a dozen or so Western European nations have resolved to end this practice in times of military conflict too. Even beyond this, these States are demanding that other nations too adopt similar views; current EU members are insistent, for instance, that new members -- eg Turkey -- must do away with their provisions for capital punishment as a condition of membership.

Such advocacy from States that have endured various forms of terror contains an alluring claim, casting us in more virtuous roles than we would otherwise imagine. It does not deny that Dara Singh acted egregiously, with the kind of unforgivable disregard for human life that if applied to him, would result in his immediate erasure. Instead, it simply asks us to believe that incarceration without parole -- and not death -- is the severest penalty we can inflict for any crime. Appropriate, not because the crime itself is less heinous than others we might imagine, but instead because the essence of our humanity lies in accepting that the worst in us is still, somehow, human. 

I suspect we'll get there one day.


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Ashwin Mahesh

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