The Long Goodbye

TURN YOUR MEMORY back to the Nirbhaya rape and murder which infuriated the whole nation so much that when the death sentence was awarded to the rapists, no one thought it was undeserved. However, it raises a question. The Supreme Court has ruled that the ordering of death by the state should only be for the rarest of rare crimes. And, much as we are repelled by brutal violent rapes, you only have to peruse the crime pages of newspapers over a few weeks to know that they are common. Not each manage to come into national consciousness but it does not mean they do not happen. And so, does it fall under the rarest of the rare category? This is also a matter of how it is worded. A phrase “rarest of the rare” is open to interpretation and so the judge uses it to give the death sentence. If it had a quantitative measure—say, a crime of similar nature should have occurred just once in 10 years—then there would be more objectivity. In India, the death sentence has many ambiguities, and so it is good that from January onwards, the Supreme Court is going to start hearings to create a framework that would bring some clarity.

The Times of India reported that the amicus curiae in the case to assist the Supreme Court listed out some of the issues in court as they laid the ground for the hearings. Like there should be enough time for someone given the sentence to show mitigating circumstances and also the necessity for periodic psychological evaluations—given the lag of a decade between the first sentencing and its culmination—to see if the person is fit to be executed. Many lawyers, including the amicus curiae, were for the abolition of the death sentence and the measures suggested seem like trying to make it as difficult as possible to do. And this is in keeping with the approach of almost all parties—from the executive to the judiciary—for some time in India.

If no one really likes the death sentence then the simplest solution is to just take it off the books, instead of the effort required to gradually make it disappear. It is not so much a moral argument that the state has no right to kill, but the idea that it expends time and resources over something that is carried out three or four times a decade. Nothing would be lost if these criminals were made to spend their lives in jail without parole. The idea of justice as retribution is no longer extant, instead, as civilisation advances, its redemptive nature has taken precedence. It is why in Europe most nations have done away with the death sentence. The system should be concerned about the larger picture of maintaining law, order and justice, instead of getting inveigled into indi­vidual cases where crowd mentality demands revenge. That is just a distrac­tion and can even become an excuse for the state to not do its real work.

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