In India’s criminal jurisprudence system, the state prosecutes crime. It undertakes prosecution in the name of the people. The punishment is decided by the state acting through the courts — not the victim. The question about the goal of punishment, therefore, becomes pertinent. Jurists have proposed several goals such as retribution, deterrence, incapacitation and rehabilitation.
Retribution, the oldest form of punishment, contains an element of revenge. In Death Penalty, Constitutional Issues, Commentaries and Briefs, legal studies scholars, Scott Vollum, Rolando V del Carmen, Durant Frantzen, Claudia San Miguel and Kelly Cheeseman point out that “this vengeful form of retribution has its origins in the Mosaic Code of the Old Testament and is captured in the idea of lex talionis (‘an eye for an eye’)… the foundation of the Code of Hammurabi, which permitted the victim or the victim’s family to seek revenge for injurious behaviour.” This system has undergone reform over the centuries. Crime is now viewed as a social problem, rather than an issue between two individuals. It should follow then that punishment is not a private matter between the victim and the criminal, and revenge must play no role in public policy.
Many have demonstrated that capital punishment does not deter sexual offences; the only purpose it serves is revenge. This argument alone should be enough to declare capital punishment unconstitutional and is also the reason why several countries have abolished death penalty. When capital punishment is enforced, society bears a moral cost in order to provide relief to the victim alone. If crime is indeed a social problem, under a retributive theory of punishment, society — which has already suffered injury as a result of the crime — will suffer more by perpetuating the cycle of violence. And that will happen without addressing the fact that it is patriarchy that creates conditions for a culture of rape.
Death penalty carried out in a pre-planned manner by the state brutalises us all. Some of us signed a mercy petition in the case of December 16, 2012 convicts, which points out: “The death engenders the false belief that killing these men will eradicate sexual violence, or at least drastically reduce it. In fact, the state’s use of such ritualised violence may well perpetuate and strengthen a general propensity to violence.” The petition also refers to the brutality of the act of execution: “The cold bodies, broken necks, soiled clothes, and the smell of excrement will not compensate in any way the life lost on December 16, 2012. Neither she nor her memory can be honoured with four more mangled bodies. To honour her, we must address the structural causes of gender violence and crime in our society.”
In 2009, the CrPC was amended to give the victim a limited role in prosecution. The word “victim” was defined to mean the person who has suffered injury and would include the kin of such person. Such a person can assist the prosecution at any stage of the case. Here we see a limited role for the victim and if dead, a role for the next of her kin emerging. Many rape survivors do assist the prosecution through their own lawyers who are often allowed to address the court. This reform has improved the conviction rate by bringing the victim into the conversation. To that extent, the monopoly of the state in prosecuting has eroded.
The accused in the December 16 case were found guilty of the most heinous crime. After legal proceedings were complete, they had the right to apply for mercy that is pardon. Once the conviction is upheld by the highest court of the land, the law has played out its role. The question then arises: Is there a right to seek pardon? On what principles should such pardon be given? The law has already declared that the crime was “the rarest of the rare”, and yet there is the power to pardon preserved under the Constitution. Will it be the voice of the victim that will settle the issue or will resolution be governed by the need to end structural sexual violence?
We have rejected the system of an eye for an eye, tooth for a tooth. As Mahatma Gandhi reminded us, such a system would make us all blind. What vision of justice can we then offer? Death to the convicts will not bring back dead victim. It will also not stop another rape incident. A sound public policy would be to end the cycle of violence. The voice of the victim, though not conclusive, would matter, among other factors, in arriving at a decision. It is here that an opportunity for healing the victim and ourselves too — as well as closure — arises. It is an opportunity that some victims of heinous crime have used to move from the irreconcilable feeling of loss of a part of oneself to understanding what happened and why.
An appropriate vision of justice would involve the acknowledgment of guilt, and understanding what we have done to ourselves as a society. It is in this window of opportunity that my appeal to the President and to the next of kin of the victim of the brutal crime was made. I recognise that forgiveness is a very subjective issue and no one can compel it. My words were, in no way, meant to diminish the pain of the parents nor disrespect it, nor “shift the burden of guilt” as some have claimed, but to look for other forms of justice and closure.
I have been asked would I recommend the same for Nathuram Godse? The answer is yes, I am sure that Mahatma Gandhi would not have wanted the death penalty for him. All his surviving sons appealed to the government not to execute the murderer of their father.
Unfortunately, the Supreme Court has laid down no sentencing policy except a negative one, “rarest of the rare”, which gives no guidance to a decision-maker on the goal of sentencing. If our mercy petition and my words do no more than spark a debate on the utter brutality of death penalty — with no other purpose than revenge — it will have served its purpose.
This article first appeared in the print edition on January 30, 2020 under the title “Closure, not revenge.” The writer is former additional solicitor general and senior advocate, Supreme Court.
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