In Nirbhaya case, the Supreme Court endorsed the judgment of subordinate courts confirming the capital punishment for the convicts. It is very unfortunate as capital punishment is barbaric as a civilised society is concerned. It is unethical and immoral.
In contemporary society, very few countries retain capital punishment. When more than 100 countries including Canada, Australia, France, Britain etc abolished it, around fifty countries retain it including China, India, Japan and most shockingly USA that speaks for freedom of everything!
What is punishment for? Not only philosophers and statesmen have discussed this issue, but also common people though they don't often have a voice to express. In England, in the 18th century, the Utilitarians justified punishment as a form of deterrent and not as retribution. Bantham was its spokesman who was instrumental in defining modern prison systems.
Pre civilised societies employed capital punishments for any offence. Think of the judicial systems that prevailed in ancient societies. Jesus was awarded capital punishment for taking up the cause of the downtrodden against the excesses the rulers and ruling class. Joan of Arc was awarded it for heresy. Jews were given it later by Hitler. Bhagat Singh was given this by the British rulers in India. I perhaps refer here only those martyrs who were crucified not for murder, rape, or other heinous crimes, but for political or religious reasons. But what about the so called wretched criminals who threaten the peaceful existence of the normal citizens who constitute the majority? This is natural question for defending capital punishment.
Who is a criminal? I have to cite two works of fiction to illustrate this. Take Hugo's classic Les Misérables first. What was his crime? Stole a loaf of bread for the starving kid from a rich neighbour! Take Raskolnikov in Crime and Punishment. What was his crime? Killing an unscrupulous pawnbroker for money or in his words, for higher purpose. The offence always is relative and subjective. The gravity of the offence is always determined by the value systems of the ruling class. So anybody can be a criminal and offender depending on the dictates of the ruling class.
In our global networked society, the discourse of justice is more alarming unlike in the past. The offender is already fixed by the media. This is being widely circulated and the interviews with the kith and kin coupled with other vested interests point to the certainty of the accused. The crime, trial and judgement all decided by the victims’ kith and kin with media backing. They pronounce the range and magnitude of punishment. Everything else that takes place in a court of justice is the proclamation of punishment based on the dictates of the victim’s close circle promoted by media hype. The judgments are endorsements of the verdict of the earlier fake media trials. So justice becomes a travesty of justice, even in non-political and non-war crimes.
Take for example two rape cases in India. In Nirbhaya, the verdict is clearly decided by the mood of the public in Delhi and around and not the evidences etc that resulted in the endorsement of capital punishment of 4 convicts whereas in the Soumya case, the verdict was depended on the meticulous dissection of technical issues as Kerala is far away from Delhi and the responses are insignificant to the law givers! This is what I call travesty of justice which means justice is highly influenced and manipulated by other agencies unlike in the past.
Then the big question emerges: who has the final say in our lives? Do the courts have the moral power to take the lives of beings when they cannot give life to anyone?
Then we ask, do the offenders have the right? Not at all. That's why in barbaric societies, the law of the jungle prevailed. Tit for tat! We call it taking revenge. At least it has a moral justification, vengeance returned in the same coin. But when the state gives the same verdict as desired by the victim’s people, the whole proceedings of the agency of the state is not on the lines of fair trial and natural justice. And state's revenge is more harmful and dangerous than the victims' avenge on the accused or offender or aggressor.
So it is high time that capital punishment abolished in India too conforming to modern values.
Josh Sreedharan is Professor of English at Department of Studies in English & Dean, Language Faculty at Kannur University