The Problem With Those Opposing Death Penalty In India

Lawyer activists never actually help out at the trial stage. Only when the case comes to their neighborhood in the Supreme Court will they go all out and denounce and cast aspersions on the trial court proceedings. They gain publicity for their rants through a willing media. Why don’t they go to the district magistrate courts – pick a criminal case – stay in a hotel and help fight the trial for free?

The probability that a criminal is caught depends on how much money the state is able to allocate to catch him.

From this flows the basic problem with imitating western arguments in criminology into a poor or developing country like India.  Indian Liberals are tossing around “certainty” of catching a criminal nonchalantly as if this comes for free.  If you see the anti capital punishment literature in the United States they almost always compare themselves with other advanced, developed, OECD, countries.  It is not even clear that the following three components of criminology – catching a criminal, a fair judicial process, a mature system of incarceration – are all that accessible to a poor third world country.  Especially one like India where the rule of law is vitiated by extraneous considerations and identities.

Beneath the visible layer of law and police there exists strong societal currents with their own instincts and expectations.   The grand project has always been to collect these instincts, see if any common threads can be teased out into a code or rules, and invest the state with enforcing the replacement code. The replacement provided by the state is visible to us as a system of law and punishments represented by Khakis and Blacks that merely substitutes these instincts. There are compromises to be made by all groups while accepting this code. Biological instincts are among the most important.

A physically weak person whose child was murdered would want nothing more than death for his child’s killer. But without allies. he on his own steam may not be able to apprehend a murderer. The weaker person is therefore likely to consider attractive  the certainty of the state catching and jailing the perpetrator for one year.

His basic instinct flowing from the Amygdala  (the part of the brain that guides emotion) is all the time screaming “..revenge you wimp!”. Invariably after the initial flood the Amydgala’s screaming is overwhelmed by chemicals flowing from the Cerebral Cortex  (the calculating part). The Cerebral Cortex probably goes “Look man, I know my friend the walnut sized Amydgala’s idea is the honorable response that befits a dad, a man, but look at you – you have no weapons, your limbs are weak, your allies are unreliable. Why not take the state’s deal – let them catch him and jail him for a year”.

The stronger guy may never encounter this biological tete-a-tete –  because he fancies with good reason that he has the resources to catch the killer  himself and exact retaliation. However, even the strongest guy is aware that entering into a feud is a very costly affair. These pulls and pushes guide and balance the law of retaliation  just below the surface of formal legal  processes.

This long digression was needed to show that behind violent crimes there exists real victims and families who deal with these raging chemical reactions in their heads on a daily basis.  Neither you nor I can understand what it feels like to be Rimpa Halder’s dad – nor the parents or children of modestly dressed folks whose naked limbs and torsos were stuck to buildings in the aftermath of bomb blasts.  The real evaluation of the Indian state is happening as we speak. Not just in CAG reports or by politicians but by millions of common folk.  People watching how other folks experience interacting with police and law.  The arguments these common people seek are not what international think tanks offer about ‘uncivilized Indians‘ but what folks who have the ability to put themselves in someone else’s shoes are able to see.

Jaideep has an excellent article on Retribution, so I wont repeat his points here. Suffice to say that India is no different from anywhere else.  Every kid in Tamilnadu learns  in school about Kannagi who took revenge on the entire city of Madurai for an incorrect judgment from the Pandiyan king.  This does not automatically lead to an eye-for-eye doctrine of course, but the deep rooted instinct has to be recognized.

To wrap up – here are more practical questions that Indian activists and think tanks are evading. They interest me less than the meta issues involved, but just stating them here.

• Mr Tharoor “proved” on a NDTV blog that capital punishment had no deterrent effect, quite a remarkable achievement considering scholars from across the world have struggled with it for ages. The argument goes: In  1990-2000 there were 10 executions but murder increased – but between 2000-2010 there was only one and murders decreased. Quite a stunning conclusion. These are complex multi variable issues that cant be naively analyzed like this. What if the deterrent effect kicks in only after a certain threshold?  Say 500.  What about the fact that encounter killings increased in that same period (2000-2010) that replaced the deterrent effect of formal execution?  What if fewer prosecutors push for capital punishment because of the costs involved?

• The rarest-of-rare doctrine is actually a serviceable or workable sentencing guideline. It is clear that murders of passion, routine cases of which there are numerous of,  even cold blooded murders arising out of feud etc fall on the other side.  If you cant even service this guideline it is not sure what else can be done.  Any guidelines has to have enough headroom so as to accommodate enough individual cases into categories.  Tharoor says, criminals who commit crimes in heat of moment rarely pay attention to punishment schedules. On the other hand, cold calculating conspirators that carry out terrorist activity surely pay attention to the prevailing penal landscape. After all, they have to go out and recruit willing folks who carry out attacks on the ground. So it is not a true statement that criminals are never aware of these things. One can even argue that taking capital punishment off the table makes it easier for terrorists to recruit minions to carry out their diabolical plans.

• Tharoor (CON) and Varun Gandhi (BJP)  castigate the judicial process itself for being biased.  I fail to see how this is a fair argument. Is it okay if a broken judicial process docks an innocent guy for 45 years in jail? These are tangential and shallow arguments. The clinching point they fail to mention is that capital punishment convicts receive a FAR more thorough hearing through the appellate process than life convicts ever will.

• Lawyer activists never actually help out at the trial stage. Only when the case comes to their neighborhood in the Supreme Court will they go all out and denounce and cast aspersions on the trial court proceedings. They gain publicity for their rants through a willing media which these days are ready to take up anything anti-national. Why dont they put their money where their mouth is?  Go to the district magistrate courts – pick a criminal case – stay in a hotel and help fight the trial for free?

• Copying western arguments on deterrence. In western countries with a high standard of living, there is a huge disincentive not to be in jail.  Outside you have wine, bars, beaches, the Riviera, jobs, a $50,000 per capita income, clean air, public services –  inside you have a stainless steel mug.  In poor countries, the deterrence effect of jail is highly debatable.  Can anyone say that the squalor of a slum on the edges of a sewage river with uncertainty of income, food, petty rivalry, oppression is desirable compared to jail ? You are guaranteed food, safety, clean clothes, some work, exercise which so many can only dream of outside.

The thing that bothers me most about think tanks and liberals in India is that they completely skip inconvenient material. They decry the sentencing issues but keep quiet on the mercy process.   The real moral hazard is the following.

A and B are both sentenced to die after the culmination of a long judical process.

A is pardoned by politicians.

B is not.

This is a sure fire way to take the winds out of  the pro-DP crowd sails.   I am speechless personally and am forced to concede all points.  Upon closer inspection, this argument is alarming.  What they are really saying is: We, the politicians, using the mercy process will hold the system hostage until you concede.

In effect they are using an arbitrary political process to vitiate the legal process and then use that very subterfuge to attack the judicial process itself as arbitrary!  A lot of everyday folk are busy with their own lives and are unable to see bogus justifications. For example: a lot of young right wingers repeat that Rajiv killers case was different because they had a 11 year delay on mercy petition. The question you should be asking is “Okay, why didnt Yakub also get a 11 year delay?”

I cried hoarse when Pratibha Patil and P. Chidambaram of the Congress Party commuteddeathsentences of most gruesome criminals.  This is a kind of sneaky behavior that must be caught early on and politicians who ran these programs made to account for it.