The “Rarest of Rare Cases” Threshold for Death
Penalty in India
I
have not given much thought to death penalty recently. The probable reason is
that I got interested in the big pictures; death penalty is for an individual,
or for cohorts in the commission of a crime that resulted in the death of one
or a few. Ignore 9/11 that killed more than 2,000. But, the perpetrators
themselves perished.
For
example, the perpetrators did survey set a house on fire with the lady and her
children trapped inside in the state of Connecticut, US, many years ago. My big
picture mentality, I am freeing myself from it now, refused to recognize the
peril an individual faces. The point of this essay is there is more than one
individual. I take the individual who is less analyzed, the criminal(s).
Indian
jurisprudence brings in a wishy-washy parameter, “rarest of the rare” cases for
which an individual shall be condemned.
A
woman (her real name was not disclosed but she became known as Nirbhaya,
the “fearless”) was gang raped more than a decade ago in Delhi (per the reports
I have read, her private parts were gored with a crow bar) and the incident
shook the societal consciousness wide and deep across the nation. The
perpetrators of this unconscionable violence were put to death except for the
teen ager in the gang who was tried as a juvenile, and no death penalty for
him. I have not read anything about him since. There could be a human interest story
there, if it could be told sensitively.
While
the sentence sated the blood-thirstiness of the society, none can guarantee
that the frequency of such gruesome crimes will reduce.
Statisticians
would know this: beyond a limit–a special kind of statistics comes into play;
ask Prof. S. Varadhan of Courant Institute of Mathematical Sciences in New
York, who worked on such things, large deviations, and was awarded the Abel
Prize. That was not a filler sentence. The concept of large deviations has high
relevance to Nirbhaya’s case. The case was so extraordinarily rare, its
statistical deviation even among the annual reported rape cases in India (≈
0.0031%), fall within the jurisprudential “rarest of rare” classification, I would
suppose.
But
statistics is not relevant in cases such as rape accompanied by gratuitous
violence. The appropriate count is: One human being is one human being, of
potential and actual achievements. Some of them may turn out to be bad apples,
but that is an issue for statisticians, not for me as an individual, indeed for
any individual.
Even
given that, I still rebel at the idea of summary justice, the death penalty. Arguments against death penalty are varied and
none would go unscathed in any argument, legal or moral. The morally abhorrent,
and in my perspective, intellectually severely unreasoned of the arguments for
death penalty is about deterrence.
I
dare my readers to find one person who intended to commit a rape when there was
an opportunity, thought about hanging from the noose and shied away from the
crime at the last instance. One cannot. The criminal has lost his bearing and
has become intellectually incapable of reasoning at the very instant there is
an intense demand on his mental faculty. A rape differs from all the other
crimes in a couple of striking aspects: lack of empathy and self-awareness in
the criminal.
Even
in a Game Theory experiment, I do not believe a person assigned to the racist
group would take up that position for a reasonable sum of money (not thousands
of dollars) readily. Check that. There are enough in the Trump administration, including
the President of the United States Donald J. Trump, his Cabinet members, and of
course, his friend Elon Musk, who is from South Africa, the land of the Apartheid
for nearly 50 years!
There
appears to be a moral sub-stratum in this issue. I go out on a limb and say that
such a sub-stratum has been effaced in the rapist.
This
is the point on which I hang my opposition to death penalty, the presence or
absence of the moral sub-stratum. Hanging a rapist, howsoever cruel the act may
have been, cannot affect the mental state of another.
In
the movie The Silence of the Lambs, a person who murders people and eats
his victims is suborned to find another criminal who merely skins his
for probing into the mentality of the latter. The movie does not seek to even
probe what made the two criminals do the unspeakable things they did to their
fellow humans (though in one, there is a hint, but not dwelt upon). The
motivations, if that be the right word, for the two cannot be guaranteed to be
the same, or even similar. That is the point.
I
would cite one more movie scene. That could infuse some perspective in this
debate. James Bond says (in the Daniel Craig starrer, Casino Royale,) “I
thought one less bomb-maker in the world would be a good thing”, to which his
boss points out, “... one bomb-maker ...hardly the big picture...”.
And,
here is the big picture, the fact–Death penalty to one rapist is not a
perspective on a large canvass. It is too sharply focussed. No one, I am
claiming to speak for many millions, who wants death penalty to be abolished
wants the rapist to roam the world free.
The suggested alternative is incarceration without the possibility of
parole. The rapist can chew on his behaviour that put him where he is. I truly
believe the death penalty is too easy a sentence for the rapist.
There
really has to be an external reason for such a switch to be flicked on. Death
penalty can never deter a person from committing a rape. Europe, where rape is
not punished by death, the instance of the crime is a fraction of what it is in
the US and must be so in India too.
I
would make the final point, an ironic one at that. For the “rarest of rare”
case to become more common place so that the rationale for death penalty can be
defenestrated, what do you need? More people to engage in such instances! “Rarest
of rare” is no more that! Is that what we want? God forbid. The “rarest of
rare” is a truly bad and sad yardstick.
Remove
death penalty from the statute books.
Raghuram
Ekambaram
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