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 9th
– 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
1 comment:
I am having a long an detailed discussion with a friend of mine who also is against death penalty. While our discussions are generally on what religions say on death penalty (rather how they are being interpreted) he did make a sharp point. Unless people have a stronf faith in the state, how can they agree to the state killing someone, particularly in a democarcy where state's actions are endorsed by the public, in some sense or the other. I had to agree. Then, Khair's argument is summarily defenestrated!
RE
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