How not to abolish death penalty

As I consider myself at least an arm chair death penalty abolitionist, I was drawn to an article in the Magazine section of The Hindu of September 9^th – Crime and capital punishment by Tabish Khair. I went into the article with an absolutely open mind (I can do this though not frequently, even on issues in which I have taken a strong position). I said to myself, “Let me see what he says.” (I do not know whether Tabish is a name reserved for males or females; I am assuming the writer is male)

I finished reading this article and I can tell you that I would have been better off had I not read this one. Then, why I am posting on it? Just so I can share my agony with a few readers of mine, no matter they are on the same side with me or otherwise.

The newspaper piece is, literally, slimy. It will not give you a handle. This is no way even to discuss, much less argue on as substantive an issue as death penalty. This way, it teaches us how not to put forth our ideas, particularly when you have none, in a public forum; a service of immense value!

Have you discerned recently any specific “fillip” to the “anti-capital punishment movement”? The writer has, and cites the letter to the President of India written by “14 retired judges”. When the writer mentions in the first paragraph “a small, highly educated group of writers, thinkers, jurists and NGOs” as the components of the movement, I thought that the tenor of the piece – against the abolitionists - is fixed; the bias is clear in the adjectives "small" and "highly educated". That made it more interesting to me.

But, I was disappointed.

It is much more than a case of clear bias. The writer got what the letter said absolutely wrong. As per reports, the letter specifically mentioned that it is not arguing whether capital punishment should be on the statute book at all. I cite a news item from The Hindu, August 22, (http://www.thehindu.com/news/national/article3804480.ece), “The retired judges have made it clear that their appeal has nothing to do with the larger debate on the death penalty itself. Instead, they have raised concerns about the fair and just administration of the penalty.”

Its focus was on the wrong judgments, as had been admitted by a Bench of the Supreme Court, and a plea to the President of India to effectively nullify the death sentence for these unfortunates. Somehow this caveat of the group of 14 missed the notice of Khair. There is nothing in the letter to support the abolitionists, most definitely not the “usual arguments against and in favor of capital punishment have been aired.”

The writer claims that the “debate [on death penalty] goes back centuries”. Now I know from where the writer gets his wishy-washiness, from religions; as per his own understanding: “while all religions sanction capital punishment, they also display considerable doubts about it.” To support this stance he cites the most meaningless of the Ten Commandments – Thou shalt not kill.

Get real. That commandment, within the context of the document it appears in, is directed as a moral injunction within the society. But even here it is observed more in the breach – Mary Magdalene to be stoned to death, remember? What about crucifying Jesus? Once Khair has taken an approving reference to an ambiguous moral injunction (did you notice this unusual oxymoron?), he cannot but be ambiguous in the rest of his outpouring. And, he does not disappoint.

Khair says that one of the arguments against death penalty is it is “unnecessary”. You must note that the word is given within quotes in the newspaper item, meaning it is taken from a source, though not cited. I have read many arguments against death penalty and have not come across this point and I do not know what is meant by “unnecessary”, in what perspective. But as I believe absence of evidence is not evidence of absence, I give the writer the benefit of doubt, but not too generous. Why? Because he says this argument is “intellectually and ethically weak”. Just a flat and lazy pronouncement.

Some other arguments “can be questioned”, but Khair ostensibly leaves it to the others to put in the effort. While giving the nod to sentiment that it is better to let go a thousand guilty it is not acceptable to condemn even a single innocent, Khair says that even so, one cannot legislate against it “from a position of authority (moral, legal, educational or social)”. You cannot cite a more handle-less position. He says that “personal conviction and ethical stand is (sic) not [emphasis in the original] sufficient in the case of capital punishment.”

Khair slips here. Earlier he asked, “Would it be OK to execute people if it was ‘necessary,’ and then who is the judge of its necessity?” Now, I throw this argument back at him: In what criminal cases personal convictions and ethical stands are sufficient, and who decides these standards? There will be no answer coming forth, I am positive. When an accusation of arbitrariness is thrown against others, one must be doubly careful to avoid ambiguous statements. Khair failed here.

The writer claims that he is “against the death penalty or, for the (sic) matter, any penalty [my emphasis] depriving a human being of something which cannot be restored to her.” Oh, this can only mean that there can be no punishment, ever and for any matter. Punishment is, and cannot but deprive someone of something and it is irrevocably lost. If as a punishment I do not allow my child to go and play with her friend today, that opportunity cannot be restored to her, ever!  And, sad to think that this goes for deep thought in support of a nonsensical position.

What is that nonsensical position? “In order to ban capital punishment … it is necessary to create a public ethos that believes that justice can be done without officially murdering some people.” Why is this nonsense? Read the following hypothetical argument in favor of Khap panchayat practices: “In order to ban honor killings… it is necessary to create a public ethos that believes that justice can be done without murdering some couples who have married without appropriate Khap endorsement.” Well …

Just suppose you force a ban on honor killings, without the necessary public ethos (a position of a “vast majority of Indians”) having been developed against them, Khair says you run the risk of alienating people from the state. This is a distorted and majoritarian view of democracy vis-à-vis a constitutional view.

A “vast majority of Indians” hold views that do not concur with many laws of the country. Then, whence these laws and is it true that these laws have alienated people? The laws have been made as per established/mandated rules of Indian democracy. If there are sufficient and sufficiently persistent clamor against them, the laws will be changed. This is how the RTI came about, for instance. This was neither a matter of public ethos nor of a “vast majority of Indians” not being alienated. Reconcile between the raw majoritarian and constitutional conception of Indian democracy.

The lack of any success in the movement against death penalty is squarely placed on the lap of the citizens’ lack of “broad public feeling of trust in the state”. This is an unctuous statement for the simple reason one will never know when and how such a feeling of trust will be created and indeed, we will not even know if and when it is created! It is most unfortunate Khair cites Norway in this regard. In the aftermath of Anders Breivik’s killing spree, arms of the state machinery were found to be derelict in their duty and were duly punished. Lack of trust in public agencies, institutions. Yet, there have been no calls for Breivik’s head. How do you reconcile with that Khair?

One last point. The tall claim is, “The potential … of the state to deprive a citizen of his life is an aspect of postcolonial heritage of fear/power.” Oh, really? So, before the imperialists descended there were no one was condemned? But, he says that even “Ashoka did not give up [the] right to impose the death penalty.” Reconcile this too, Khair.

He is an abolitionist but will not raise a finger against the mighty arm of the state, except when it has been strengthened by a “vast majority of Indians.” Truly a rear guard! Let him come out and say this clearly, clarify that he is a closet abolitionist. He has not come out and will do so only when others show the way.

As there are enough reconciliation tasks ahead of the writer, this article does not give anyone any handle. Just as I claimed at the beginning.   

But I have to make an honest disclosure. Why this long rambling post-mortem on a useless article? Only to show that positions against abolishing death penalty will invariably end up being unjustifiable, no matter the tack taken. Because and only because, in a civilized society death penalty is untenable.

Raghuram Ekambaram