Debate: Afzal Guru hanged, but is death a solution?

Feb 10, 2013, 09:02 IST | Sushrut Desai, Aditya Ajgaonkar

The execution of Afzal Guru has reopened the debate on capital punishment. Should India follow the example of an increasing number of nations that have now abolished the death penalty? Does execution act as a deterrent for similar crimes? And will we be seen as a nation that goes soft on hardened terrorists if we abolish the death penalty? Sunday MiD DAY put the question to two senior lawyers

‘Capital punishment must be given to the most monstrous criminals in our society’

Why do we punish anybody? As humans it is programmed into our DNA that bad actions must have bad consequences. That is our entire theory of punishment.

Afzal Guru was hanged yesterday morning at Tihar Jail, New Delhi. Pic/AFP

It is humanity’s most elementary moral equation. We cannot believe that good things will come from good, unless we are shown that bad things will follow from bad. The penal system satisfies our primal instinct that sees punishment of crime as an act of society re-balancing itself after an aberration, or righting itself after a wayward element has tried to topple it over.

When weighing in, in favour of the death penalty, one is painfully aware of being on the wrong side of overwhelming popular liberal opinion. The intelligentsia excoriates capital punishment as barbaric. They argue that the purpose of punishment is to reform the criminal and re-introduce him into the society.

I disagree. The purpose of punishment is to punish. There’s a reason that the crime of assault draws lesser punishment than grievous hurt, and that punishment is lesser than one for attempted murder. Society penaliSes criminal behaviour on an escalating scale of punishments that corresponds to crimes of escalating seriousness. At the top of that scale is a category of crimes so heinous and depraved that the Supreme Court calls them the ‘rarest of rare’ cases. These are serial killers, the child rapists-murderers, professional predators of women and children. It is for these cases — and only these — that the State prescribes death penalty.

The abolitionists believe that life imprisonment is a sufficiently serious punishment. Certainly it is very serious: that is why we prescribe it for convicted murderers. But it would be fatuous to pretend that the gruesome ‘rarest of rare’ cases are the same as other murders. Or that the perpetrators of those crimes are the same or ought to be treated the same as others. It is nobody’s case that every murderer should be put to death or that for every life lost the State must take life. But capital punishment must be preserved for the most monstrous criminals in our society.

In Susan Jacoby’s book Wild Justice she writes that retribution provides “a profound moral equilibrium when people pay for the harm they have done.”

That’s all there is to it really. Some crimes are simply so horrific that its victims and society at large cannot continue to have any faith in the moral force of the State if it does not take the life of the criminal as punishment. This is why the State preserves capital punishment, because it preserves the State’s own moral equilibrium.

The author is a lawyer at the Bombay High Court and has worked with the United Nations. (As told to Samarth Moray)

‘Once the death penalty is administered, a person cannot be brought back to life’

The debate over death penalty is back in the aftermath of Ajmal Kasab’s and now Afzal Guru’s execution. A majority of the countries around the world have abolished death penalty, on the basis of the argument that the state has no right to take away life and that death penalty infringes upon basic human rights that ought to be protected. However, the main argument against death penalty is that if an imprisoned convict is later found innocent of the crime he is convicted for, he can be exonerated. But once the death penalty is administered a person cannot be brought back to life. This very finality is the biggest case against the death penalty, especially in a country where public opinion seems to suggest that the criminal justice system is highly flawed. 

Each death sentence also leaves behind a legacy in the form of case law. In India, where earlier precedents set by higher courts are binding, death penalty jurisprudence has evolved largely in the form of ratios laid down by the Supreme Court in its earlier judgments. Even the concept of administering the death penalty in ‘Rarest of rare’ cases has evolved out of judgments, however the decision whether the case falls within the ambit of ‘rarest of rare’ is left to judicial discretion. The absence of a statutory definition to the term ‘rarest of rare’ also ensures that every time a reasoned order for accepting the death penalty is given, there is a chance that circumstances that may be considered ‘rarest of rare’ increase due to the guiding principles that are laid down.

The role of every progressive state is to look after its people. If this hypothesis is to be accepted, then as a society we have to accept that the criminal justice system needs to be rehabilitative rather than retributive. In a criminal trial, the prosecution is always done by the state on behalf of the people. The actions of the state then in this capacity can be said to reflect upon the people. A progressive society aims for justice not retribution. It is well established that the law discourages retribution, as revenge is not a valid reason for taking the law into one’s own hands. As the state acts on behalf of the society, it could follow that punishment laid down by the law is not retributive in nature, but progressive as an effort to ensure the safety of the rest of the society while the convict undergoes rehabilitation.

Hanging a person does not alter the effect of the crime committed, as the victim continues to live with the consequences. What it does do however is to regress us as a society that little bit. It is not my case that the person who is executed may not have deserved it. Why should a person, who may be wrongly convicted, be executed. That by itself is an ugly legacy for our society.

The author is a criminal lawyer practicing at the Sessions Court (As told to Samarth Moray)

Chronology of events
Dec 13, 2001: Five terrorists enter Parliament complex and fire, killing nine people and injuring around 15

Dec 15, 2001: Delhi Police pick up Afzal Guru, a member of terrorist outfit Jaish-e-Muhammad (JeM), from Jammu and Kashmir. SAR Geelani of Delhi University’s Zakir Hussain College picked up for questioning. Two others — Afsan Guru and her husband Shaukat Hussain Guru - were also picked up.

Dec 29, 2001: Afzal Guru sent to 10-day police remand

June 4, 2002: Charges framed against Afzal Guru, Geelani, Shaukat Hussain Guru and Afsan Guru

Dec 18, 2002: Death sentence given to SAR Geelani, Shaukat Hussain Guru and Afzal Guru

Aug 30, 2003: Jaish-e-Muhammad leader Ghazi Baba, prime accused in the attack, is killed in an encounter with the Border Security Force (BSF) in Srinagar

Oct 29, 2003: Geelani acquitted in the case

Aug 4, 2005: The Supreme Court, confirms the death sentence of Afzal Guru, and commutes Shaukat Hussain Guru’s death sentence to 10 years of rigorous imprisonment

Sep 26, 2006: Delhi court orders Afzal to be hanged

Oct 3, 2006: Afzal Guru’s wife Tabassum Guru files a mercy petition with then President APJ Abdul Kalam

Jan 12, 2007: The Supreme Court dismisses Afzal Guru’s plea seeking review of his death sentence

May 19, 2010: Delhi government rejects Afzal Guru’s mercy petition

Dec 30, 2010: Shaukat Hussain Guru released from Delhi’s Tihar Jail

Dec 10, 2012: Home Minister Sushilkumar Shinde says he will examine Afzal Guru’s file after Parliament’s Winter session concludes on December 22

Feb 3, 2013: President Pranab Mukherjee rejects the mercy petition Feb 9, 2013: Afzal Guru hanged in Tihar Jail

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