Our politicians and courts must avoid the language of retribution


The Supreme Court’s recent order on mob lynching adjudicates as well as educates on India’s promise of secularism and the need for effective prevention in law and order. In his judgment, Chief Justice of India Dipak Misra condemns “a reactionary retributive attitude transforming itself into dehumanisation of human beings”. The court also reposes faith in the rule of law. But the court’s criticism of its citizenry for dehumanising ‘the other’ may hold lessons for our political and judicial leadership too.

The judgment endorses the belief that “it is the fear of law that prevents crimes”. However, effective policing of mob violence may not be the only cause for failure. Political scientist Thomas Homer-Dixon notes that when one’s perception of justice is combined with a lack of accountability, it creates ‘the other’ and allows for dehumanisation and violence. This dehumanisation is layered with de-individuation, or the inability to see the other beyond the wrong he or she may have committed, and the use of pejorative caricatures to refer to the other. When viewed in such a framework, dehumanisation explains how India’s expanding death penalty regime has moulded people’s perception of justice.

Talk of the death penalty

The political class has shown increasing affinity for the death penalty. Earlier this month, Punjab Chief Minister Amarinder Singh suggested the death penalty for first-time drug offenders despite his earlier position that the death penalty is against basic human rights. The move betrays a lack of understanding of the complexity of drug dependence in individuals. Similarly, in 2016, the Nitish Kumar government in Bihar introduced the death penalty for illicit liquor trade without any evidence to suggest its efficacy. Earlier this year, BJP MP Subramanian Swamy moved, and then withdrew, a private member’s Bill in the Rajya Sabha for death penalty for cow slaughter, an act already disproportionately punishable by life imprisonment in Gujarat.

More prominently, a Presidential ordinance was introduced by the Union government to impose the death penalty for the rape of girls under 12 years of age, in response to public dissatisfaction against the political shielding of suspects in separate incidents of rape in Kathua (Jammu and Kashmir) and Unnao (Uttar Pradesh). In doing so, the government contradicted its own stance before the Supreme Court when earlier this year it submitted that the death penalty could not be the solution for everything. The elements of dehumanisation are writ large in these impulsive policy decisions and pronouncements. Our political class has opted too often in the recent past to declare certain categories of criminals worth eliminating. The constant introduction of the same method to deal with a wide range of policy challenges has created a ‘perception of justice’ that equates retribution with respect for victims.

Unfortunately, courts have often joined the chorus and actively sought and encouraged harsher punishments. This January, for instance, the Uttarakhand High Court recommended that the State introduce the death penalty for cases of child rape. The courts have in the recent past showcased language with helpless frustration. ‘Monstrous,’ ‘beastly,’ ‘diabolical’ and ‘unfathomable’ have been used to refer to offenders. This language is then read with approval across television studios in India, feeding the public with an idea of the other against whom violence is the only means of justice. Judicially expressed disgust does not aid in understanding crime, or preventing its recurrence.

Even for crimes as heinous as child rape which require serious policy interventions, neither the court nor the Union government has defended the punishment of death beyond the simplistic ‘fear of the law’. The introduction of death penalty for non-homicidal crimes, unchecked by the court, inspires the state to enter into a unhealthy competition of symbolism, at the cost of regressing notions of justice in the public.

The 2013 Justice Verma Committee’s restraint in not recommending the death penalty for rape, and the Law Commission’s recommendation to restrict the death penalty only to crimes against the state have been forgotten in this impassioned discourse. Dehumanisation is the outcome when the court calls upon the ‘collective conscience’ to justify the death penalty. As the court increases its reliance on retribution, societal standards and definitions of justice also change, making the demand of the collective a self-fulfilling prophecy.

Demonstrable rationality

Justice Bhagwati, the lone dissenter in the Bachan Singh case (1980), which upheld the constitutionality of the death penalty, opined that the right to life could not tolerate an infringement without demonstrable rationality. Rationality seems to suffer at the hands of retribution. Eradicating the evil-doer provides seductive comfort to the mob and the state. The court must resist being the avenger for society in favour of nurturing a culture where justice and retribution are not the same.

The cognitive psychologist, Steven Pinker, identifies ‘the escalator of reason’ as a historical force, which has helped reduce violence in societies. For India’s criminal justice system to climb the escalator of reason, our political and judicial leadership need to create and preserve a culture of the dispassionate study of the human costs and benefits of retribution, no matter how serious the shock to our conscience.

Yash S. Vijay is an Associate (Litigation) with Project 39A at National Law University, Delhi

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