To Kill or Not To Kill: A Human Rights Perspective on Capital Punishment

Ramesh Nagaragere 

Time was when a king got angry with one of his subjects and said, 'Off with his head' and it was done. Not just that. He would also order the chopped off head to be hung on the walls of the fort. At the gates. The intent was not merely to punish the guilty, whatever be the guilt, but also to prove to the people that the king was all powerful and the same fate would befall them if   they ever dared to go against the king or violate the established practice. The question whether it was humane or not, or just or unjust would never arise. The king’s word was law.

Since then lots and lots of water has flown down all the rivers of the world and it has witnessed remarkable shifts and twists in history. One significant development is the democratization of a majority of nations and the word of the king is no more the law everywhere. Along with this, human life has also gained some recognition and it can not be ended   just because one autocrat thinks a particular individual does not deserve to live. Besides, the world has also seen many wars   which have only resulted in loss of life along with destruction of property. Especially, the two world wars and several ethnic conflicts in different parts of the world   have resulted in premature cessation of human life. This has made nations think in terms of protecting human life at least from individual whims and idiosyncrasies. Consequently several countries have abolished death penalty as a means of punishing their citizens. This is a minor attempt at humanizing and civilizing society.

The efforts of civil societies   and human rights organizations of various countries have succeeded in getting 96 countries so far to decide to abolish capital punishment or legal execution as it could be called. In some countries, India is one of them, it is announced only in ‘the rarest of the   rare cases’. But what are the norms set to decide which is rare and which ‘the rarest’? More often than not, it is the presiding judge who   has to decide   the merits of the case   in the absence of definite guidelines. That means, in the ultimate analysis, the question of life or death of a person depends on the discretion of one individual which could be very subjective and arbitrary at times. An estimate says that 60% of the world’s population lives in the four countries which still have capital punishment in their law books. – India and   Indonesia  where it is resorted to  only in  the rarest of the rare cases and China and America where it is a very common phenomenon.  These four countries voted against a U N General Assembly resolution in 2007 calling on the member-nations to, at least, announce a moratorium on capital punishment which could pave   way, eventually, to abolition. Amnesty International, the reputed internal human rights organization has come out with very useful information on the issue.

Presently,   heated discussions are happening in India especially against the backdrop of the implementation of the   death penalty   already   awarded to Afzal Guru,Kasab and several others. Those   proclaiming the efficacy of the punishment want these people to be hanged soon and   those   who are opposed to death penalty   want it to be converted to life imprisonment. It should be remembered that besides these there are several others including those accused of killing Rajiv Gandhi and a few tribal activists who have been sentenced to death.

The supporters of capital punishment as a legal way of doing justice argue that that is the most suitable punishment for those indulging in such heinous crimes as murder. This, they say, would also make the near and dear ones of the victims of the murder feel ‘satisfied’, feel that justice has been done. More over, they also assert that once such   punishment is   given out in  a few cases, that would be a deterrent to others who might be planning to commit such crimes. Also, the state has to   prove that it is powerful and strong and one way of doing it is using the powers bestowed on it by the law of the land.  As a consequence of this mode of thinking that at the moment the government of India is being dubbed as weak since it has failed to carry out the executions already ordered by the courts.

The Supreme Court of India has decreed that capital punishment could be awarded in cases like murder, murder with the intent of looting, sedition by citizens or members of the armed forces, ‘terrorist’ related crimes, police ‘encounters’, honor killings and others, But even then this sentence could be pronounced only in the rarest of the rare cases, as the highest seat of justice says. The last instance of hanging   was in 2004 when Dhananjay Chatterjee of West Bengal was hanged and since then in quite a few cases death   sentence has been awarded but not implemented yet and one important reason is that   mercy - petitions are still pending with the President of India or the government of India. Obviously it  is bound to take some more time before the actual implementation of the   verdict even if all the petitions for mercy are rejected.

However, there is increasing   pressure on governments in many parts of the world for the cessation of capital punishment and India has also been witnessing this phenomenon. Several human rights organizations have taken the lead in arguing for the abolition of capital punishment.  The effort has now grown into a movement. Killing a person, even   legally, is   negation of   life, they say. On many occasions, people   who had been convicted and sentenced to imprisonment had been found to be not guilty. If these people had been hanged or electrocuted, it would have turned out that they would have been ‘murdered ‘by the system which is meant to protect its members, to   do justice.  Then there are others who argue for abolition on religious grounds. But no religion of importance has taken a clear position on the abolition of death penalty. Even in countries where they profess Buddhism the legal framework has the provision for killing   the accused if found guilty of serious crimes.

One very important question arises here:  how does   the state which normally acts against the interests of the common people   acquire power over the lives of its citizens? For instance, the era of globalization, at least in India,   has seen the government   following   a policy   inimical   to the interests of farmers which has resulted in   suicides by a large number of farmers in many parts of the country.  This   is in spite of the government claiming that   the country has achieved remarkable growth rate  that a considerable section of the people has also been benefited.  Compare this with    a suicide due to coercion by some   in which the abettor is punished. But in   the case of these suicides who is to be held responsible for these deaths which are nothing short of murders? Who is to be punished and   what should be the punishment? Unfortunately these questions remain unanswered.

The argument that capital punishment can act as a deterrent is a myth.  If that were to be true, in countries like China and a few states of the US, by now crime rate should have gone down considerably.. On the contrary, it is reported that crimes in those states of the US, for example, where death penalty is part of the legal system are more compared to the states which have removed this provision from their law-books. Then there is the argument that   by punishing the murderer with death the close relatives and friends of the victim could be made to feel ‘satisfied’. Is it not     position that adds to the revengeful attitude already present in us?  Can a society claiming to   be   civilized afford to do it? In some countries   where Islam is the official religion and Shari at is followed, the culprit can get relief if   the members of the family of the victim decide to spare the life of the culprit: but then it depends on the will of the some individuals and there is no legal compulsion.

All the arguments cited above   in favor of legal execution try to establish that capital punishment is the only way to prevent further crimes and understandably   the general perception in the society is also for capital punishment, at least in our country.  It is so because  there has been no serious effort at building public opinion through concerted campaign and whatever little is being done by human rights organizations here and there has  been met with  very little success or cynicism. 

But if one cares to consider different instances of crimes and the people involved one would certainly be ready to give it a second thought.  For example,  in some cases of ‘terrorism ‘the person who has  committed such an act is prepared to die along with those he or she has planned to kill, some times even innocents.  Such an individual has no consideration either for   the life of self or that of others and for him or her death sentence is no punishment at all.  In death penalty there is nothing like making the culprit ‘experience’ the punishment. On the other hand, if the wrong doer is made to spend the rest of his or her life in prison, that is punishment and there is also the possibility   of such a person   realizing the futility and gruesome nature of the crime and repenting for at least the innocent lives cut short. Then, what is  more meaningful is the effort to identify the social, political and economic  factors  resulting in some people turning out to be ‘terrorists’ and to resolve the issue socially, so that nobody would ever think of committing such acts and that is a mark of civilized governance

Killing, even legally, by the system as a way of punishing offenders only smacks of the tyranny of the system and its unbridled power over the lives of its subjects. That is   for the autocrats   and   an   uncivilized one at that. So much so, the European Union has stipulated that any country wishing to be a member of the organization has to first   take out capital punishment from its justice - system. This is certainly a slow but sure way of moving towards civilized living.   

We claim very often that ours is an  ancient country espousing human values and that the whole world, especially the western world, looks to us for answers when ever they are beset with problems . This much acclaimed’ spiritual superiority’ of India can best be established not just through claims made in internal and international forums  but by  translating into practice  some of the suggestions being   made by the civil society and abolition of capital punishment is one such important  proposal.  Here   in   , we have to admit   that some countries have moved ahead of us and shown themselves in better light. It is not merely the government that has to decide in favor of abolition   of death penalty, but it has to be part of the social consciousness. The Constitution of India stipulates that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” (Part III, Article 21 of Indian Constitution). That needs to be amended so as to remove the provision to deprive a person of his or her life even “according to procedure established by law”. To do that a strong public opinion in favor of abolishing legal execution has to be created and eventually the society or at least the right thinking people should   bring pressure on the government to put an end to this provision.  What is needed now is that one has to put aside all false emotions and subjective considerations and be prepared to apply one’s mind to this intensely human problem. Can one hope to see that day soon?

(Ramesh Nagaragere was the Principal, National College, Jayanagar, Bangalore. He has been associated with the Human Rights Group, Peoples' Democratic Forum, Bangalore)

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A Landmark Judgement

Ramesh Nagaragere        

This commentary on the Judgement delivered by the High Court of Karnataka was published in the October 2010 issue of Indian Skeptic, an ezine now defunct. We upload the essay as the judgement continues to be relevant to the rationalist movement in India.

There have been occasions when Indian judiciary has surprised, shocked and disappointed people who expected it to pass verdicts which would take the society forward. One well known case in point is the judgement given out by the Rajasthan high court against Bhanvari Devi in 1994 saying that those who had been accused of raping her were from the upper castes and hence could not have done such a heinous deed and acquitted all of them.

High Court of Karnataka

But now and then we come across some silver linings creating some hope in us about the efficacy and forward looking nature of the judges. I refer to the judgement announced by Justice H N Nagamohan Das of the High Court of Karnataka on 13th September, 2010. At one stroke he quashed the non bailable warrant issued by a lower court against Mr Hulikal Nataraj for 'hurting the Hindu sentiments' by criticizing and talking against some dearly held beliefs of many Hindus. This is surely a land mark judgement since it belongs to that group of decisions of learned judges like Justice VR Krishna Iyer. This emboldens and strengthens the hands of those who have been fighting against obscurantism and superstition which are still respected in this society since they are our 'tradition'.

Now, for the details of the case. Mr Nataraj teaches at Swami Vivekananda Higher Primary School, Doddaballapur some 35 kms away from Bangalore, He is well known for his acts of exposing the miracles, a programme popularised in Karnataka and in many other parts of India by Dr Narendra Naik. On 26th February at one such programme at Madikeri in Coorg district of Karnataka, he is said to have explained the dubious nature of Makara Vilakku and the case of an eagle going round the Garuda Stambha at Ayyappa temple of Shabarimala. (It could me be mentioned here that some time ago, one of the trustees of Ayyappa temple admitted that the so-called divine JYOTHI WAS ONLY A HUMAN CREATION.) He is also said to have called the so called theerthobhava at Bhagamandala, the sudden springing up of water in the river Kaveri as ‘false’. The next day, on 27th February a complaint was lodged against him by one Chethan, an activist   of Bhajarangadal of Madikeri with the police of the town. The charge was that Mr. Nataraj, by calling these phenomena false had hurt Hindu sentiments. The police registered a case against him, filed it in the court of the magistrate at Madikeri and a non-bailable warrant was issued against the accused. This act on the part of the police and the court at Madikeri did cause some furore at that time and was forgotten later.

Karnataka was reminded of this case again on 13th September, 2010 when the press reported that the case against Mr Natara was quashesd by the High Court judge Justice H N Nagamohan Das.  Mr.  Nataraj had challenged the order of the Madikeri court in the High Court of Karnataka and his case was argued by the well known Advocate Prof Ravi Varma Kumar and his assistant Mr Irshad Ahmad.

Especially noteworthy is the extent of intellectual efforts put forth by the Judge to build up a case for acquitting Mr Nataraj. The text of the judgement reads like a treatise on rationalism and scientific temper. The constitutional obligation of every citizen of India to uphold and promote scientific temper and a spirit of enquiry without which no society can ever dream of moving in the direction of progress is also mentioned to support his decision.  The most surprising thing is that the importance of Section 51 A(h) of Indian Constitution which addressed this issue was lost on the  police officer  as well as the judge at Madikeri.

Hulikkal Nataraj

Justice Nagamohan Das divides the text into five parts of which three are devoted to a delineation of the issue at hand, Under titles such as FREEDOM OF SPEECH, SUPERSTITIONS, and FUNDAMENTAL DUTIES,  he traces the growth of the spirit of inquiry among humans every where. The very first sentence, almost axiomatic, sets out the direction and tone the whole text was to follow: 'UNFREEDOM is the result of oppression and freedom is the outcome of liberation'. The learned judge cites various verdicts of the English, American and Indian seats of justice in this regard in support of his arguement. The words of Justice Frankfurter in the case DENNIS   Vs. UNITED STATES (34 US 494(1951) are very much relevant in the present context when we are still plagued by those swearing in the name of cultural nationalism and superstitions calling them parts of a glorious tradition, '....the liberty of man to search for truth ought not to be fettered, no matter what orthodoxies may challenge. Liberty of thought soon shrivels without freedom of expression '.

The judge also quotes extensively thinkers like Buddha, Basaveswara, Nehru and Dr Radhakrishnan to uphold the importance of being open minded. He rightly notes that scientific temper takes one beyond Science and 'creates a conducive atmosphere to eradicate class discrimination, slavery, bonded labour, untouchability, gender discrimination and racial discrimination'.  He also points out that when a citizen is threatened for discharging his fundamental duty of promoting scientific temper he/she can approach the court for a direction to the government to protect him/her from any harm.

The text of the judgement reveals how the complainant from Bhajarangdal and the police officer have bungled in their interpretation of the words 'wounding the religious feelings’ of Hindus. Similarly it also notes that the judicial officer at Madikeri has gone about the case in a 'mechanical manner'.  Finally on the basis of all these findings, all grounded on rationalism, progressive thinking and commitment to the spirit of the Indian Constitution, the learned judge quashes the order of the lower court and discharges Mr Nataraj of all charges.

With a judgement of this importance, notwithstanding some unease, Iyer and Nagamohan Das stand tall among hundreds of judicial functionaries, many of whom, unfortunately, are not very much different from the judge of the Rajastah High Court already referred to. The victory of Mr Nataraj is not merely a personal gain but it is the victory of scientific thinking and rationalism over irrationalism and of democracy over fascism.

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Why I Am An Atheist

Ramesh Nagaragere

Like any child born into a middle class, upper caste family in India I was also part of the traditional ways of thinking and living, but with a touch of liberalism. I was initiated to be a dwija (twice born) at a very young age as it happens in the case of most of the male children of such families and I accepted all the practices without a trace of doubt or question. However, the liberal air which was also pervading the family had its own dose of impact on me. Though I accepted all the practices without question, I was not very serious about performing them and was not very much convinced about their efficacy either. 

Gradually I came to be introduced to new writings even when in high school. These writings did their work   silently and I began to question, though mockingly, some of the traditional practices which were and are common in many such families as mine.  But I was not yet skeptical about the existence of god as such. I used to visit temples as a faithful devotee though was not very much given to indulge in the performances which were too long and monotonous.  When I entered college my doubts about the traditional beliefs and practices got extended to the very idea of god. I was introduced to the writings of Bertrand Russell and through him to other such   thoughts which reflected his positions. Though not strictly a student of science, I came to be convinced that it is science and scientific thinking   which formed the basis for a proper understanding of the world and its physical structure. Similarly,  it also began to dawn on me that questions about human life and existence also could be answered better if one followed the method of science, instead of simply ascribing every thing to the power of god. Then there were also questions about the different perceptions about the idea of god, which had been  present some where in my mind  ever since I was a school going boy  I had quite a few friends belonging to different religions. But I had not taken those questions seriously then. As I began to probe matters pertaining to god and religion at a stage when I was more mature I could understand, I thought, the beginning of the concept of god better. I was convinced that   god was nothing but a result of human imagination which was a necessary at a time when humans needed to have explanations for the various natural phenomena which they could not scientifically explain for want of the much needed information about them. During this period I was also strongly drawn towards Marxism and that did it all.

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