The Limits to Punishment…

Hadd Chahiye sazaa mein….

The Argument against death penalty is an argument against extremism
There is nothing  new to be said on the Death Penalty. Several conferences on the issue have been held, in which the same things are said and said again. The inalienable right to life, the possibility of error, the system's class bias, the complete lack of any deterrent effect of this penalty, et al. All perfectly valid grounds.  You know them all and so do I. Yet why has it not gotten home to systems that still retain the death penalty?
I was teaching a course of criminology at Jamia Millia Islamia university, several years ago. The death penalty, naturally, came up as a topic. The students all spoke and, as might be expected, there was a great deal of support for the capital punishment. Inevitably, child rape was chosen by most as the context in which, the call of justice was considered to be death to the despicable criminal.
This went on for a while, and I asked, whether death was punishment enough for such an offence. After a fraught silence, some said, what do you mean? I said, for the trauma suffered by the child, her family, which was never ending, is death enough for the criminal? Should he not be made to suffer, in a like way? Silence reined some while more. I said why not rape a child in his family. There was an outraged protest. They said, how can you punish someone else? I asked them then, when you extinguish a convict's life, are you still not punishing his family?
True, even if you put the convict away for life, you are imposing a suffering on those related to him who had no part in the offence? So, what is the limit?
It dawned on some of them then, that punishment was both, necessary and imperfect, simultaneously just and unjust. At the end of that rather charged session, I can honestly say, that quite a few openly admitted that they no longer favoured the death penalty, while others said that they were no longer sure.
Certainly some diehards persisted.
I have related this episode, not as some great Socratic interchange on my part, but instead to show that the debate on the death penalty is beset with many other questions of justice, proportionality, and the impossibility ever of finding the perfect punishment. All attempts at justice would at best be approximation. Therefore the most abiding argument against capital punishment would be that an imperfection should not be pegged at an irreversible extreme.
Kieslowski's film actually makes that abiding argument brilliantly. The most unpleasant of men, killing a genial and likeable man brutally and without cause, gets a full and fair trial. And yet at the end, you come away feeling disgusted at the thought that a State should maintain a devised system for hanging a man.The debate on the death penalty cannot be divorced from penology generally. Given the state of our jails and criminal justice, is life imprisonment any less drastic? Punishment will either be too much or too little, seldom commensurate.
So, I say, the argument against the death penalty is an argument against extremism. Morally and politically it must be recognized as such. 

The debate on the death penalty cannot be divorced from penology generally. Given the state of our jails and criminal justice, is life imprisonment any less drastic? Punishment will either be too much or too little, seldom commensurate.
Now throw your mind back to a year ago after Nirbhaya. Compare it with the protest in Manipur over Manorama. Analyse the social celebration of extremism in punishment.
As activists against the death penalty, we need to recognize that the call for death is not always a simple-minded disregard for the value of life. It encompasses a frustration at injustice generally, genuine and often justified anger and an orgy of self-righteousness.  After all, what can be better than indulging one’s own instinct for violence in the cause of another's justice. The mistake, I think, that we make, is in taking this rather complex expression as wholly the one or the other.
Just yesterday, a person for whom I have a considerable regard said in some other context that self-righteousness is a besetting sin, perhaps a sin over all other things.
I think the self-righteousness of the anti death penalty activists is no less and no better than the equal and opposite force of the protestors after Nirbhaya. Both miss many points. First, that shutting away a man for life is not letting him off scot-free. On the other hand, all but one argument against the death penalty apply with equal force to imprisonment for life. In fact even that one exception of irreversibility is not entirely inapplicable to the years and years in jail. Both miss the point that justice is as much an element of retribution to those who have suffered, as a measure of humanity to the offender, and is indeed a fine balance between the two.
There is no doubt whatsoever that the explicit norm empowering the state to take life in public interest, engenders less express but nonetheless deep rooted support for extra judicial uses of violence such as encounter killings and custodial tortures.
Ultimately, it boils down to this: society cannot morally or effectively contain a norm against violence, without eschewing all but the optimal violence, inherent in state power. Is this consciousness easy to generate, these days particularly, when the State is arrogating to itself all manner of controls, and even outsourcing many of these to the corporate sector?
Some introspection is needed, and more dialogue.  Are the isolated and incestuous seminars that we organize on the subject, without any opposing viewpoints, are they not  escapist? To what end is preaching to the choir, as it were? Would it not be more useful to work towards strategizing an engagement with the issue, generating willingness to debate in a more broad-based way by taking the debate outside centralized seminar halls to the community, in innovative ways? Intolerance in ideology is unbecoming of an abolitionist.





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