Warning: Post contains graphic descriptions of a violent rape.
You must have seen the news that the 4 men convicted for the rape and murder of a 23 year old student last december have been sentenced to death by a fast track court. It is natural for us to feel outraged at the incident, as it was a beastly crime. If you are in doubt, let me refresh your memory by quoting from the text of the judgment.
The facts show that entire intestine of the prosecutrix was perforated, splayed and cut open due to repeated insertions of rods and hands. The convicts, in the most barbaric manner, pulled out her internal organs with their bare hands as well as by the rods and caused her irreparable injuries, thus exhibiting extreme mental perversion not worthy of human condonation. As convict in pursuance of their conspiracy lured the victims into the bus Ex. P-1, brutally gang raped the prosecutrix, inflicted inhuman torture and threw the defenceless victims out of the moving bus in naked condition, profusely bleeding in a cold winter night ; their unprovoked crime demonstrated exceptional depravity of mind of the convicts.
…Further, the convicts did not stop after pulling out her internal organs after the crime of gang rape / unnatural sex but then had dragged the victims to the rear door of the bus Ex.P-1 to be thrown out and when the rear door was found jammed the victims were dragged by their hairs to the front door and thrown out of the moving bus. Her intestines were so severally damaged and the suffering inflicted on the prosecutrix was unparalleled. The brutality caused to her internal organs is extreme as is evident from the medical evidence on record and hence the act of convicts call for extreme penalty.
It is an act of unimaginable horror. No doubt about that. The death penalty was the correct sentence to be awarded considering the law of the land. I cant imagine what the mind of the perpetrators would have been like when they were doing the act. There are simply no words for such acts.
In spite of all that, something about the sentence left me uncomfortable.
Look at, for example, this part of the judgment which is a quote from an earlier judgment of the supreme court.
When the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so ( in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty
It starts by saying that if the society feels the necessity of death penalty for the sake of self preservation, then the principle of sanctity of human life can be withdrawn, but follows it up saying, it may do so when the collective conscience is so shocked that it will expect the death penalty from the judicial arm of the government.
Similarly, look at this one.
The protection of society and deterring the criminals is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing court are expected to consider all relevant facts into consideration bearing on the questions of sentence and proceed to impose a sentence commensurate with the gravity of the sentence. Court must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea of leniency would be wholly misplaced.
This too begins loftily saying the goal of law is to protect the society and deter criminals. But goes on to say that the court must hear the loud cry for justice from the society.
This is what makes me uncomfortable. However heinous the crime is, it cannot be undone. So we dont have any option but to look ahead. Thus when imposing a sentence, our only goal needs to be to prevent these four from repeating what they did, deterring other criminals and preventing similar crimes. There should not be any idea of a tit for tat or revenge when imposing sentences. But look around you honestly. Look at photos of protestors. Look at the media. Look at the judgment itself. Do you really think the motivation for the death penalty was to protect society or to prevent similar crimes happening in the future? I don’t think so. It was a collective act of revenge. That is all it is. When someone commits a crime on us, we instinctively feel an urge to get back at them. It is natural, but does not mean it is correct. Let me explain.
Am I saying no death penalty at all? No. My only point is that the basis for any punishment we impose, should be rational. It should not be driven by the fact that the society’s “collective conscience is shocked” or by the tendency of the court to take it upon themselves to “hear the loud cry for justice by the society”.
To drive home what I am arguing, let me give a hypothetical example. Suppose one week from now, a new fact emerges that, all these four people were, without their knowledge, given a drug by an evil neuro-scientist as part of an experiment (to be clear, I hate that stereotype of the evil scientist doing an evil experiment), that made them do such things. The way the judgment is written today, that new fact should not affect the imposition of the penalty. After all it still was an unimaginably heinous crime, our conscience was indeed shocked, the society did cry out of justice and so all the necessary criteria for death penalty are met. But in the light of the new fact, the death penalty to those four people would definitely not be justice.
Now imagine the death penalty was given with the goal that such a punishment would deter future criminals* or to prevent such crimes happening in future. Now if this fact of evil scientist comes to light, we can logically change the judgment, because our goal of preventing similar crimes in future can be easily achieved by sending the scientist to prison (or by hanging him).
To reiterate, I am not arguing that the death penalty should not be imposed because some future fact might come up which will clear up the criminals’ names (it has happened before+). My argument is that even in cases where the accused himself admits of the crime thus leaving no scope for any future change of facts, punishment should not be given just because it needs to be “commensurate with the gravity” of the crime, because it is nothing but a wordy way of saying I want an eye for an eye. It should be a logically thought out, well argued, evidence based judgment with our focus on the future.
Now, some of you might argue that I can make all these points just because it was not my own mother, or wife or sister who was the victim. I admit that if I was the guy with the girl on the bus that december night, it is highly probable that I would argue differently. But if I were personally involved in it, I should be the last person to be trusted to provide fair justice. So my opinion should matter less in such cases. In fact, that I am not personally involved in the case should make me more capable of rational discussion. So dont come back at me saying, I dont understand the nature of the crime.
Another aspect to be considered, that at first glance might look very silly, is very related to the points I am making here is that we do not have free will. So moral responsibilty cannot really be pinned on any person. Thus any legal system that depends on the criminal “deserving” the punishment, is a system based on the false notion of the person being responsible for what he does. I have written about that before, and hence will avoid going into detail here. When you understand that my brain functions, at the fundamental level as a physical machine, you realise that neither can I be blamed for the bad things I do, nor can I claim credit for the good things. That idea becomes extremely important when building a legal framework for the society.
Thus, when I see protestors baying for blood, the media pushing for death penalty and the judges writing judgments hearing the people on the streets, I feel very uneasy. Democracy is not always the ideal way to take decisions. If we always trusted the majority, the minorities will always get suppressed. So, trust not numbers. Always look for well reasoned arguments. In this case though, the legal system should be revamped. With cases like these, I only get the feeling that we are still letting ourselves be driven by the instincts of our humanity’s uncivilised infanthood. When will we, as a society, grow up?
* There is an important argument that there appears to be no evidence that death penalty does indeed deter criminals, but let us keep it aside for now. That is a valid argument, but that is not the point I am making in this post. So let us, for argument’s sake, assume that death penalty does indeed deter criminals.
+ This too is a very important argument, but again, not the one I am making now.