Still NO to death penalty and torture

Rohit Negi is an Assistant Professor at Ambedkar University, Delhi. He can be contacted at rohitosu[at]

As a seeming majority of fellow travelers are calling for death to and/or torture of the perpetrators of the heinous gangrape in New Delhi, maintaining a steadfast opposition to these instruments is as difficult as it is important. The position against capital punishment is commonly believed to be on account of a misplaced defense of human rights, which, it is argued, should be suspended on account of the exceptionally brutal nature of the crime. This is what one sees in a recent tweet by an activist, who wondered why “’sensitivity to human life’ comes into play only when women are harmed?” There may be a precise context to this statement, but those I know in opposition to capital punishment stand by that position irrespective of the case at hand.

a13Moreover, a person’s position on the death penalty is not a proxy for how much she/he detests crime. If you read someone’s opposition to torture as lenience, there is a danger you’re lapsing into a ‘you are with us or with the rapists’ sort of reasoning a la Bush Jr. Just because one is against death penalty to Ajmal Kasab, for instance, does not mean one is any less angered or saddened by the loss of lives he perpetrated alongside his companions. The point of departure then is not anger, but the mode of redressal, justice and ultimately, the one’s outlook on state and violence.

As far as I’m concerned, the opposition to the death penalty is not in the first instance an ethical issue as it is social-institutional. In this light, the following are main reasons why I oppose the death penalty, and of course, legalized torture:

1. The Deterrence logic: No doubt, a proportion of violent crimes, including rapes, are thought through and planned, in which case a logical person may weigh the costs and perceived benefits (this language though crude is presumed in the deterrence logic). As many have already argued, it is not so much the degree of punishment, but the inevitability of it that may be the greater deterrent. Speedy trials and rigorous imprisonment without parole, in addition to social boycott are as likely to deter potential criminals. Some have also pointed out that the threat of death may lead to killing of rape victims, especially children.

In addition, I wonder if the deterrent argument considers the variation across India in gender relations and with it, cases of violence and rapes? If, as NCRB statistics say, AP, Delhi and WB have over 30 rapes a year per lac population, but Gujarat and HP have less than 15, how do the mechanisms of deterrence vary between these places? Are people in these states simply deterred from what they would otherwise consider doing? And by the same logic, do they immediately look for their victim when they move to Delhi?

In short, one can certainly debate capital punishment as a means of justice for crimes already committed, but it is unlikely to prevent or diminish crimes against women in the longer term. The explanations and potential answers lie elsewhere.

2. Death Penalty in all cases? To the liberals who support torture and execution in this case, what will be your argument against the death penalty when the majoritarian vigilante aims its crosshairs at another subject? Things aren’t usually as clear as they are in this case– How will you defend Afzal Guru’s right to life? Here’s a person on death row despite extremely shoddy investigation and seeming coverups. Or even speak up against Soni Sori’s torture, given that there is a consensus, at least in Indian cities, that what the Indian state machinery says about alleged terrorists and Naxalites is true and that they need to be simply eliminated.

3. The nature of our Institutions: Most of us have no misconceptions about the police in India. It is by and large a corrupt, regressive force that has its hands in most of the criminal affairs of a given city or district, often acting as the enforcement wing of specific nexuses of politicians and businesses. If we agree on this, how do we justify a demand for even more police? In fact, the issue is not even of their capacity to respect and enforce law and order, but their very role in our society. Laws may be created with a vote, but institutions have their own half-life and pace of change. Therefore, if death penalty is to become the norm, we need to remember who is going to catch the perpetrators, and precisely how they are going to be convicted. In other words, in an institutional context where forced ‘confessions’ are the norm, extortions are rampant, and a half-decent lawyer can get one off the death penalty, only the weak and poor will be sent to the gallows. Do we want this sort of bifurcated justice, as they have in the US, where executions are almost exclusively reserved for crimes committed by African Americans? In some US counties almost every single death row inmate is black or Hispanic. Conversely, are all victims and survivors also equal in terms of the application of justice, or are some more equal than others? And is the tough, no-nonsense approach going to be a pretext to sanitize the living spaces of the urban elite? Consider that in North Carolina, in situations where the victims where white, death sentence is 3.5 times more likely than situations where the victim belongs to a minority.

None of this is meant to suggest that a certain proportion of violent acts against women and sexual minorities cannot be prevented through better, more efficient policing and enforcement of laws, but simply that a ‘tougher’ police comes with its own set of problems, and may unintentionally lead to greater violence than less.