Colloquium on “Capital
Punishment: State and Society”
Indian Institute of
Advanced Study, Shimla
May 27 2013
I thank the IIAS for this invitation to a colloquium
which addresses an issue of profound moral significance. It is an issue that has
been off the radar of public scrutiny and debate for a long while, thanks it
seems to two presidents of the republic who chose evasion rather than a frontal
engagement with the ethical issues it posed. It has been restored front and
centre in the moral universe by a president who has suffered no such qualms and
has it seems, quite gladly gratified a partisan political urge to seek
electoral advantage from being seen to be tough on terrorism. The issue of the
death penalty has in the process re-entered the public discourse. And maybe it
is because I have a predisposition towards recognising only the points of view
that are in accord with mine, I have a distinct feeling that the majority of expert
commentary we have had since the two recent executions, has tended to see the
death penalty as indefensible, both morally and legally.
Where there have been efforts to justify the
death penalty, these have not arisen from any manner of a rigorous assessment
of its deterrent effect, but from a misplaced sense of deference to the law as
it exists and the institutions that embody its processes and principles.
The conventional moral calculus we are taught,
holds that it is a far greater iniquity for one innocent man to be punished
than for several wrong-doers to go free. It is a serious stigma for any kind of
a political order, leave alone one that lays claims to being a democracy, to be
accused of executing a person without adequate cause. Elaborate arguments are
then advanced that the criteria of “adequacy” have been fulfilled, both in
standards of proof needed to impose this ultimate sanction, and the
requirements of fair procedure in evaluating all relevant evidence.
Words of caution are offered to defuse the
outrage, but little done to deprecate the unseemly revelry on display in
certain quarters over executions carried out by the State. The
conscience-stricken opponents of capital punishment are advised that too strong
a denunciation of the processes through which the death penalty is awarded and
enforced, will undermine popular faith in the institutions of governance. When
all procedures prescribed under the law have been followed -- and the final
recourse, which is the appeal for clemency, has been exhausted – the public
must simply learn to put up with the death penalty as a necessary evil, enforced
for its own protection. That is part of the argument often heard in recent
months: the death sentences recently implemented have been upheld by the Supreme
Court which is final not because it is infallible, but invested with the cloak
of infallibility because it is final.
This is an argument for political conformity,
for accepting the need for discrete silence where the credibility of the
institutions of governance is at stake. It also disregards several recent
admissions from the highest court in the land that it has so far been
absolutely unable to evolve sound and consistent norms for imposing the death
penalty.[1]
Before going any further into questions of
ethics and political morality, let me turn towards something that I find a curiosity
about the mood of agitation over the death penalty. Considered in purely
numerical terms, the current level of public engagement with capital punishment
might seem a bit of an indulgence. In the last eighteen years, we have had four
executions under the law. There are, by current estimations, fewer than five
hundred convicts under the shadow of death, either at various stages in the
appeals process or awaiting the outcome of mercy petitions. These are not
insubstantial figures, but there is a strong probability that several among the
five hundred on death row, in fact, the majority, would be reprieved at some
point in the appeals process. The number whose final clemency pleas have been
turned down would number fewer than twenty.
The specific details of each prisoner trapped within
the process that is designed to lead, ultimately, to his extinction as a person
and an identity, needs to be explored. A modern liberal-democratic order
institutes a judicial process governed by certain universally accepted rules of
fairness, beyond which, there is an opportunity afforded to the condemned man
to invoke the power of mercy held in reserve by the sovereign he is obliged to
serve. Once that recourse fails, he is left with no claims to staying alive.
His life is as good as extinct.
Purely as a detour into irony: the notion of
the “sovereign” as the ultimate protector, which also reserves to itself the
right to extinguish human life when provoked to extreme wrath, is obviously a
legacy from less enlightened times of despotism. There was a practice in medieval
times that an execution once ordered, had to be carried out swiftly. The
executioner here was regarded as the “king’s champion”, chosen to represent his
will to do justice. Capital punishment was a gesture of absolute power that the
sovereign authority had reserved for himself, which necessarily would be
imposed on one who had violated the law and caused injury to the “body
politic”. If the execution was botched or for some reason failed, there would
be a popular clamour for the pardon of the convict.[2] A sovereign capable of
implacable wrath and infallibility in establishing guilt and innocence, also had
to execute his will with a comparable sense of purpose. A botched execution
detracted from that image of a sovereign of unbending resolve and all-knowing
power. It was an unwitting admission of fallibility which placed an obligation
on him to rescind the sentence of death.
Loosely applying these principles today,
consider what it would mean for a government invested with the power to inflict
death, that it should secure all necessary legal warrants for the purpose, but
falter at the final stage. It is unable to determine if a convicted person deserves
the invocation of the power of mercy. There is a failure of will and the
edifice of absolute certainty and infallibility crumbles. A government that
will brook no challenge to its will, fails to live upto its own self-image of
being relentless in its determination to protect society from the reprobates
who threaten its cohesion and peace. For the highest judicial body in the
country to admit on various occasions that it has erred in the imposition of
death is to shed the cloak of infallibility. Further, a delay in carrying out
an execution represents a failure of will of the State.
These arguments lead to a singular inference: with
the transition from the medieval notion of the sovereign as the absolute power,
to a modern principle of popular sovereignty, the death penalty itself needs to
be abolished. To carry this argument any further, we need to make a further
point: that popular sovereignty does not for its own purposes of
self-affirmation, require the negation of life in any form, under any
circumstances. From there we could conceivably move on to making the further
and stronger affirmation that the extinction of human life, whatever be the
circumstances, is a negation of popular sovereignty.
A plain assessment of relevant facts would show
that we are a long way from arriving at either of these affirmations in the
real world. The circumstances in which killing enjoys the sanction of society
are today wide-ranging and we could quite credibly argue, that the tolerance
for inflicting death as a matter of social and political necessity, is on the
increase.
To put this in some perspective, let us refer
to the executions that happen not just under the due processes of the law, but in
what could be called the penumbra of the law. These are actions that have
acquired a special status within the popular vocabulary, as “encounters” carried
out by officials of the state without the formal sanction of the law, but with an
assurance that post facto legitimacy will
be granted. Coincidentally, we had just a few days back, the release of the
report on India by the U.N. Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions. It reminds us that certain grim figures we should really
have been more attentive to, have for long been in the public domain, without
eliciting the kind of critical social response they called for. India has the dubious
distinction as a country, of adding the term encounters and “fake encounters”
into the international discourse on human rights. And in a period of fifteen
years since 1993, we have had 2,560 deaths arising from encounters with the police.
Of this number, almost half, i.e., 1,224 cases were established by the National
Human Rights Commission (NHRC),[3] a conformist body which
does not step out of line of the official narrative unless the evidence is
really compelling, as “fake”.
There is a problem of consistency between
various definitions. The National Crime Records Bureau (NCRB) has its own
system of classification, in which we are given a rather different estimation
of crimes involving uniformed officers of the State. It is not immediately
apparent if the definitions employed by the NCRB match those used by the NHRC.
The lessons that the NCRB statistics impart though, are very clear: of all the
complaints lodged against the coercive arm of the State, i.e., the police in
any given year, well over half are dismissed on sight as unsustainable or
spurious. Of the rest, well over 90 percent go before internal mechanisms of
accountability. Fewer than 5 percent of cases are referred to magisterial or
judicial procedures. And the susceptibility of magistrates and judicial
officers at the lower rung to the sheer coercive power deployed by agencies of
the executive – such as the police – is another “real world” factor that we
have to bring into this calculation.
Clearly, there is a violation of the
fundamental principle of fair legal process here: that no person can be judge
in his own case. The consequence is a situation of absolute impunity in the
matter of extra-judicial killings. It is only the very rare case, such as the
recent killings of Sohrabuddin Sheikh and Ishrat Jahan, where the armour of
impunity is breached. There are occasional expressions, somewhat more
generalised, of dissent, as with the Supreme Court recently deprecating the
State killing its own people, in the context of the encounters in Manipur state
that have become the subject of a judicially mandated inquiry.[4] The substantive impact of
this manner of intervention is however, far from being clear. It may be
premature to say that there is broad popular consent for the impunity that the
apparatus of the law enjoys. But it certainly is true, that there is yet no
organised or clearly articulated dissent. Where indeed, there is, it gains little
voice or traction since the forces enforcing silence are far more powerful.
So here is a situation of officers of the State
enforcing violence not through the processes of the law, but with the assurance
of post facto sanction, underwritten
by the consent – manufactured or otherwise is a question we should separately
address -- of civil society. There is yet a third category of sanctioned
violence that has been common in India. And this is a virulence that originates
within civil society and runs its course with the tacit connivance of the
State. The State is in modern political doctrine, the agency with a monopoly of
legitimate violence, but there are situations in which it is prepared to yield
this mantle of legitimacy to certain actors within civil society, on the
strength of a largely unstated compact. Thus we have had episodes of mass
violence virtually from the very beginning of India’s career as a sovereign
republic. They have been classified under the scholarly and bureaucratic rubrics
in various ways: communal violence and caste atrocities being the two main
categories. But certain key characteristics are shared: a generalised failure
of the State apparatus to contain the violence, impunity for the perpetrators
and little redress for the victims.
Still another category of violence would be
that which occurs securely within the domain of the family and the clan. The
formal system of the law is explicitly in disapproval of this pattern of
violence but has little ability or will to intervene or provide redress. In recognition
of this incapacity, there are several who argue that the formal apparatus of
the State should stay out of this domain and allow customary institutions and
practices to prevail. This often has malign effects on even the formal
guarantee of equality that the State holds out. We have had lawyers who joined
in the defence of widow immolation in Rajasthan becoming legal luminaries and
in one case, a judge of the High Court.[5] We have a Member of
Parliament from the ruling party arguing that the institutions of caste such as
the khap panchayat should be given
their due recognition as instrumentalities of justice delivery where the law
fails to reach.[6]
Going beyond these categories now and moving to
a different plane, how do we place these different modes in which violence
occurs, within a broader conceptualisation of crime and punishment in a liberal
democratic order? Since we are dealing with the death penalty which is the surviving
relic of an older order, how do we see the persistence of this despotic
instrument within what we imagine is an enlightened liberal dispensation? The
story is obviously a complicated one but I have tried to simplify it here. My
argument here is simply that in the transition from despotism to liberalism,
certain exceptions were always considered warranted and necessary, so that the
full charter of rights would not be applied universally. There were certain
requirements that every aspirant had to fulfil before he gained entry into the
liberal order. And those who failed to meet these requirements would suffer
abridgments of their rights, of varying degrees of severity. These could cover
the entire spectrum: from a denial of sovereignty or any opportunity to dispose
of bodily skills and mental faculties in a manner of his or her choice, to an
explicit denial of liberty and finally the denial of the right to life itself.
I will consider the liberal philosophers from
the formative years of modern western democracy here, since doctrinal conflicts
and dilemmas are most sharply reflected during conjunctures of change. Once the
forces of transformation have run their course and society has settled into a
calm and consensual mode of functioning, philosophical thinking tends to lapse
into conformism.
Hobbes and Locke are two figures of special
relevance here. Writing during the English civil war, Hobbes posited a model
that saw man as inherently acquisitive, driven into continual conflict with
fellow man and requiring the strong hand of a sovereign to render him fit for
an existence within society.[7] All rights in other words,
principal among these being the right to property, or the ability to determine
what is “mine, thine and his”, rested with the sovereign and could be allocated
among subjects in a manner of his choice. This would seem to put Hobbes outside
the liberal spectrum, casting him almost as an apologist for royal despotism.
Yet, as the political theorist and philosopher C.B. MacPherson has shown,
Hobbes is among the first to clearly enunciate the foundational principles of
liberal-democratic philosophy. He drew on contempory conceptual breakthroughs
by Galileo in the physical domain, which posited continual motion rather than a
state of rest, as the basic state of nature. In course of his perpetual
movement, man enters into collision with others of his species, his instinct
for acquisition creating the grounds for conflict with his fellows, leading to
a “war of all against all” in which life for all would be “nasty, brutish and
short”. There was in other words, no alternative but to have a strong sovereign
power – an “artificial man” as Hobbes puts it – which would stand above this
state of unending war by imposing a law and ensuring that the norms of property
(or “propriety” in Hobbes’ language) were duly respected.
For those who failed to honour the law he laid
down, the sovereign would reserve various kinds of punishments. A crime
committed against an individual subject would attract one variety of punitive
sanction, one committed against an official enforcing the sovereign will, quite
another. In the former case, the harm was confined to one person, while in the
latter, “the damage extends it selfe (sic) to all”. Anything that involved
material damage to the sovereign’s interests, such as the “betraying of the strengths,
or revealing of the secrets” of the king to an enemy would be deemed a crime.
So too would anything that tended to “diminish the Authority of the same,
either in the present time, or in succession”.
Stripped of its seventeenth-century idiom, Hobbes
is clearly speaking here of the modern penal provisions of obstructing or in
some way harming an officer of the law in the performance of his duties, and of
treason and sedition. All of these are actions which involve a challenge to the
majesty of the sovereign and would be categorised in modern legal parlance, as
“crimes against the State”.
Punitive sanctions in turn could take several
forms: pecuniary, corporal and capital. Each has its specific place within the
architecture of power. And capital punishment here is “the Infliction of Death;
and that either simply, or with torment”. Though the ultimate purpose was to
rid society of one who refused to live by its rules, the manner in which death
was inflicted had its own didactic purpose. The preceding period of torment,
when the convicted man was expected to make a public confession of his crimes,
served the purpose of deterring any who might seek to follow in his path. It may be added here, that though
“torment” has today been eliminated from the modes of inflicting death – at
least in terms of the formal law -- society still retains a sharp interest in
the words and demeanour of a convict at the moment of his execution, as final
validation of its power to extinguish life.
A half-century or so after Hobbes, Locke
observed a rather more placid state of affairs, with England in the rosy flush
of the Stuart Restoration. He had in consequence, a much happier view. Man,
said Locke, is inherently in harmony with society. Those who seemingly fail to
get a fair deal out of bourgeois-liberal rules, must necessarily have invited
that fate upon themselves by some act so much at variance with accepted norms
of conduct, that death was the deserved punishment. Once reprieved by society’s
magnanimity, the delinquent elements were obliged to repay the debt incurred by
putting themselves, in body and soul, at the disposal of the wronged persons.[8]
Locke was simply put, a firm and faithful
adherent to the dogma of the “original sin”, which saw all social inequities as
the consequence of some primeval act of transgress. The world was created in
all perfection by divine ordainment. But there were regrettably, among the
denizens of this perfect world, many who were unable to live by the
indispensable rules that would ensure peace and tranquillity. Those guilty of
contravening the rules handed down by a benevolent creator, would be spared a
deserved retribution, only if they were to resign themselves to a lesser
charter of rights.
Every person was otherwise sovereign over his
body, his labour and his faculties: “every man has a property in his own
person: this no body has any right to but himself. The labour of his body, and
the work of his hands, we may say, are properly his. Whatsoever then he removes
out of the state that nature hath provided, and left it in, he hath mixed his
labour with, and joined to it something that is his own, and thereby makes it
his property. It being by him removed from the common state nature hath placed
it in, it hath by this labour something annexed to it, that excludes the common
right of other men... Thus the grass my horse has bit; the turfs my servant has
cut; and the ore I have digged in any place, where I have a right to them in
common with others, become my property, without the assignation or consent of
any body.”
From being a circumstance requiring a special
justification, inequality and a forfeiture of rights over bodily capacities and
faculties – “the turfs my servant has cut” – become an integral element within
the liberal-democratic framework as conceived by Locke.
Three varieties of power are in play in
sustaining this state of liberal-democratic harmony: the parental, political
and despotic. Parental power is something that all of tender years put
themselves under with the sanction of society. It is what is today called the
primary socialisation process, which equips them to deal with the world outside
as they grow to mature years. And once of sufficient maturity to take part in
public affairs, each individual – who is sovereign in himself and enjoys full
power to dispose of his person and faculties in any manner he thinks fit –
nevertheless sees a pragmatic purpose in delegating the authority to enforce
this state of perfect concord, to a politically constituted entity or civil government.
It is however, the third form of power in
Locke’s framework that is key here. Despotic power for him, is “an absolute,
arbitrary power one man has over another, to take away his life, whenever he
pleases. This is a power, which neither nature gives, for it has made no such
distinction between one man and another; nor compact can convey: for man not
having such an arbitrary power over his own life, cannot give another man such
a power over it”. Despotic power
rather, is “the effect only of forfeiture, which the aggressor makes of his own
life, when he puts himself into the state of war with another... for having
quitted reason, which God hath given to be the rule betwixt man and man, and
the common bond whereby human kind is united into one fellowship and society;
and having renounced the way of peace which that teaches, ... he renders
himself liable to be destroyed by the injured person, and the rest of mankind,
that will join with him in the execution of justice, as any other wild beast,
or noxious brute, with whom mankind can have neither society nor security”.[9]
Despotic power in other words, is invoked in a
state of war, when society is forced to take up arms against elements within
which threaten its internal harmony. And once despotic power is called into
play, the common human decencies cease, since the target of social wrath is one
who has forfeited all rights. It could be added here, that the Supreme Court of India has frequently
in its rulings on the death penalty, echoed this sentiment of the “brutish” or
“beastly” man being a menace to society. In the case of Kuljeet Singh (better known as the Billa and Ranga case), the court
held that the “survival of an orderly society demands the extinction of the
life of persons like Ranga and Billa who are a menace to social order and
security”. And in the case of Ram Deo
Chauhan, the court took the argument on the protection of society to what
has been described as a “new low”, by ruling that “when a man becomes a beast
and menace to the society, he can be deprived of his life”.[10]
Moving on
in the evolution of the liberal-democratic doctrine to Immanuel Kant, we see
the principle of man in conflict with society being elevated to little less than
the principal motive force, the mainspring, of human progress. For Kant, the
“antagonism of men in society” was nothing less than the means that “nature”
had itself decreed “to accomplish the development of all (human) faculties”.
Ends that individual human beings would “care little for if they knew about it”
are promoted by “each pursuing his own ends according to his inclination and
often one against another (and even one entire people against another)”. Given
these inherent qualities of the individual and the human species, Kant saw the
“supreme test (that) nature has set for mankind” as the evolution of a
“perfectly just civil constitution”. Such a regime of law alone could ensure
the “development of all faculties of man by his own effort”. The greatest
degree of freedom should be assured under the law, so that there is a “very
general antagonism of (a society’s) members”. But there should also be
concurrently, a “precise determination and enforcement of the limit of this
freedom”.[11]
How does
harmony emerge by some miracle, from the collisions of infinitesimal individuals
who share nothing except the instinct for acquisition and a tendency to allow
their egos to take over their existence? In his Critique of Practical Reason, Kant was to return to this issue,
proposing among his most crucial axioms, that the human will should “freely”
submit itself to the law. In this sense of “free” submission lay the
preservation of individual liberty. Every individual, under the reign of
reason, would be enjoined to act as though the exercise of his will could
“always at the same time hold good as a principle of universal legislation”.[12]
Kant was not of course a theorist of civil
society in the manner that Hegel was. But his notion of a settled and agreed
pattern of social practice that would conform with civilised norms, independent
of the State and the coercive power it holds in reserve, is as clear a
construct of “civil society” as can be found in the thicket of conceptual
confusion that has sprouted around the term.
Three principles are essential to the
constitution of the “civic state” in Kant’s judgment: “1. The freedom of each
member of society as a man; 2. The equality of each member with every other
as a subject; 3. The autonomy of each
member of a commonwealth as a citizen”.[13] There was though, one
condition that every person had to satisfy to qualify for all the rights
available to a citizen. And these lines from Kant encapsulate the central
dilemma of the liberal doctrine so well, that they need quotation at some
length: “The requisite quality for (citizenship), apart from the natural one
that the person not be a child or a woman (sic), is only this: that such a
person be his own master and hence
that he have some property (under which we may include any art, craft, or
science) that would provide him with sustenance. To put this another way, he
must be a man who, when he must earn a livelihood from others, acquires
property only by selling what is his own and not by conceding to others the
right to make use of his strength”.[14]
Clearly then, the man who has no sovereignty
over his person, over the manner in which his bodily strengths and mental
faculties are deployed, does not merit the rights of citizenship. It is a
dilemma of liberal-democratic theory that persists to this day, one that
detracts seriously from its claim to being a doctrine of equality.
Let me quickly wind up this excursus into the
history of ideas with a consideration of Immanuel Kant’s great contemporary
Adam Smith. Now remembered as the founder of the modern discipline of economics,
Smith was also a moral theorist profoundly concerned with the law and justice.
Though he shared much in Kant’s worldview, in seeing the unfettered exercise of
the human will as the best guarantee of progress, he saw a quite distinct
process of mitigating the conflict potential inherent in this situation. He
considers the emotion of “sympathy”, in this respect: an emotion that every
person is susceptible to, though one difficult to intuit since it goes beyond
the senses and common faculties. The illustration Smith used was of a witness
to torture. A person who sees a near and dear one “upon the rack”, he argued,
would have no way of knowing through his senses and faculties, of his true
suffering. But the sight nevertheless stirs up deep emotional turmoil.
Sympathy, says Smith, once referred to the emotions of pity and remorse, but
could more accurately be characterised as one man’s sharing in the emotions –
whether merited or not – of another.
This was, said Smith, an illogical sentiment if
any, which could be ascribed solely to the generalised dread of death that all
humanity suffered. The emotion of “sympathy” arose from the sense of mortality
that all humanity was condemned to live under, an emotion that indeed was “one
of the most important principles in human nature”. Indeed, the fear of death
made every individual intimately aware of the limits to which he could
challenge or push back against the norms imposed by society. This singular
trait in human nature was responsible for the sense of discrimination that
every individual possessed between justice and its opposite.
The sense of Smith’s remarks is clear. All life
is finite and worth treasuring. But one who pushes too hard against social
norms risks forfeiting his right to live. He will be dealt with either in
accordance with society’s powers of sanction -- if necessary through capital
punishment -- or else through lesser devices. Though never quite convinced of the
moral basis by which a society could deprive an individual of his life, Smith was
prepared to put up with it as a necessary evil. The fear of death, he argued,
was “the great poison to the happiness, but the great restraint upon the
injustice of mankind; which, while it afflicts and mortifies the individual,
guards and protects the society”.[15] In contrast to Kant, who
saw an exalted and rather reified notion of “Reason” as the ultimate arbiter in
a society that would otherwise be torn apart by the competitive instincts of
its members, Smith saw a kinder, gentler attribute of “sympathy” serving that
function.
The key issues here could be summed up in a few
lines. The liberal-democratic order is built on a model of competitive man,
which in turn is an acknowledgment that conflict is inherent in society.
Conflict is contained by enacting a civil constitution that enshrines equality
as a value without holding out any form of assurance of substantive equality.
Individuals without sovereignty over their persons and their faculties would
not be entitled to the full rights of citizenship. But as a pragmatic decision,
they could be granted formal rights since a benevolent State could conceivably
create the conditions under which they could lift themselves out of deprivation
into a state of genuine equality. All who choose to dishonour or defy the
compact under which liberal-democratic society is established, forfeit the
right to the protection of its laws. The right to life becomes in extreme
cases, an indefensible entitlement for these recalcitrant elements.
Let us turn now again to the situation in India
and the manner in which the death penalty has been preserved as an element of
the law and implemented over the years. This is only to consider it in its
political context, not in terms of the extensive jurisprudence that has come up
around the theme. Two of the moral preceptors of Indian independence – Gandhi
and Ambedkar – both expressed themselves not just once, but at several critical
junctures, against the retention of capital punishment.[16] And this was against the
background of the Karachi session of the All India Congress Committee in 1931,
the first formal attempt at laying down a constitutional framework for Indian
independence, making it an explicit commitment to do away with capital
punishment.
Yet, at the decisive moment, when the
republican constitution was actually enacted, the death penalty remained on the
statute. What explains this seeming anomaly? The question prompts a
reevaluation of some of the mythologies of our nationhood and a sober
assessment of the pathway that brought us to independence and the strategies
that have since been deployed in sustaining national unity. Paul Brass for
instance, has said that the Indian constitution was born not in the abundance
of hope and unbound ambitions, as we would like to believe, but “in fear and
trepidation”. There were, on Brass’s reading, several factors that contributed
to the unsettled national mood at independence, notably the partition, the war
in Kashmir, the near-insurrectionary conditions in Hyderabad state, and
memories of the acute food crisis of the war years. The “fear of disorder” was a looming presence
all through the Constituent Assembly debates and it led to a number of
qualifications being inscribed into the Constitution on the fundamental rights
of free speech and association. The
numerous emergency powers conferred on the Central Government under the
Constitution were, Brass argues, a direct outcome of this sense of “trepidation”.[17] So too, we may add, was
the retention of the death penalty.
This fear of disorder led to a number of
practical concessions being made to older power cliques whose sustenance
otherwise would be in flat-out contradiction to basic republican values. There
were also sections that by virtue of the partition and the circumstances of the
national unification that followed, were seen to be in forfeit on the rights
that all others were guaranteed. These foundational characteristics of the
Indian nation have created their own terrains of violence, a violence that is
exercised within civil society, often with the active connivance of the State.
They also determine to a great extent how the State exercises its right to
violence: both the legitimate kind and in that other, more shadowy form in
which legitimacy is conferred after the fact. In recent years and especially
since the Indian elite began discovering in the battle against terrorism, an
identity of interests with the western powers that had earlier been elusive, that
has become another rubric under which rights can be denied and even the due
process of law made superfluous. That was the essence of two recent rulings by
the Supreme Court, in one of which it upheld a death sentence despite the
passage of endless years since it was imposed – which in its more enlightened
jurisprudence the court had likened to cruel and inhuman treatment – on the
grounds that the convict had been guilty of a crime of terrorism. Another
convict who made a case on the same grounds for the commutation of his death
sentence, was granted a reprieve because he had been sentenced for a lesser
crime than terrorism. In a context in which one of the aspirants for the Prime
Ministership of the country is on record saying “all Muslims are not
terrorists, but all terrorists are Muslims”, this fairly explicit exception to
the guarantees of fundamental rights and lawful process, holds grim forebodings
for the future of democracy in India.
[1] In 2006, despite over a quarter century of evolving jurisprudence
over the death penalty emanating from the formulation in the Bachan Singh case that it should only be
enforced in the “rarest of rare cases”, a two-judge bench of the Supreme Court
effectively threw up its arms at the absence of clear norms. The bench of
Justices S.B. Sinha and Dalveer Bhandari expressed its frustration rather directly,
while commuting a death sentence: “No sentencing policy in clear terms has been
evolved by the Supreme Court. What should we do?” (Cited in Lethal Lottery, A Study of the Death Penalty
in India, Amnesty International India and the Peoples’ Union for Civil
Liberties, Tamil Nadu and Pondicherry, May 2008, p 90). This volume also
presents a number of arguments by a small but committed number of judges on the
Supreme Court, especially in the 1980s, that made out a strong case for the
abolition of the death penalty. Notable figures here would be V.R. Krishna
Iyer, D.A. Desai, O. Chinnappa Reddy and P.N. Bhagwati.
[3] U.N. Human
Rights Council, Twenty-third session, Agenda Item Three, Addendum, Report of the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions, Christoph Heyns – Mission to
India, April 26, 2013.
[4] This
observation of the Supreme Court is mentioned in the report of the U.N. Special
Rapporteur, cited in footnote 3.
[5] In 2004, a lawyer who had joined an agitation in 1987 within
Rajasthan’s Rajput community to permit a ritual observance glorifying the
practice of widow immolation or sati,
soon after a young woman from the state had reportedly burnt herself on her
deceased husband’s funeral pyre, was appointed to the High Court. This was
despite a sustained agitation by women’s rights groups and other civil rights
advocacy organisations. See Sanghamitra Chakraborty, “The Devi’s Advocate”, Outlook, September 27, 2004, extracted
May 28 2013 at: http://www.outlookindia.com/article.aspx?225259.
[6] Naveen
Jindal a Member of Parliament representing the Congress party in Haryana and a former
Chief Minister of Haryana, Om Prakash Chautala, recently made common cause
arguing that the khap panchayat
deserved a fair hearing in matters of enforcing marital law. The khap panchayat’s alacrity in enforcing
“honour killings” on individuals who married outside their caste or within the
same gotra – a supposedly primeval
but most likely socially constructed family lineage – was at the time earning
it much public opprobrium. But Jindal praised the institution for its role in
administering society before the formal systems of law were instituted and
urged that its demands for a legal ban on the forms of marriage deemed taboo,
should be considered in all seriousness. See: “Navin Jindal supports khap
panchayat”, The Hindu, May 10, 2010
(National News), extracted May 28, 2013 at: http://www.hindu.com/2010/05/10/stories/2010051061441000.htm. In the case of Chautala, the
support he extended to the khap panchayat
was read as a way of entrenching his support among the Jat community. See
“Chautala backs khap marriage idea”, The
Indian Express, October 11, 2012 (dateline Chandigarh), extracted May 28,
2013 at: http://www.indianexpress.com/news/chautala-backs-khap-marriage-age-idea/1015113/.
[8] John Locke,
An Essay on Government, available in
numerous editions, including in e-books. The key sections here would be between
paragraph 1 and 50.
[11] Immanuel Kant, “Idea for a Universal History with Cosmopolitan
Intent”, in Allen W. Wood (editor), Basic Writings of Kant, New York, 2001, p
119.
[13] Kant,
“Concerning the Common Saying: This May be True in Theory but Does not Apply to
Practice”, in Allen W. Wood (editor), op.
cit., p 420.
[15] Adam Smith, The Theory of Moral Sentiments, New York, 2000,
pp 3-9.
[16] It should
be added here that at the time that the Indian Constitution was written and
adopted, Ambedkar was certainly not recognised as a moral preceptor. That
status came to him later, after roughly four decades of India’s existence as a
sovereign republic. He was however, acknowledged to be a person of great legal
expertise and wisdom.
[17] Paul Brass,
“The Strong State and the Fear of Disorder”, in Francine Frankel (editor) Transforming India, Oxford, 2000.
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