Punitive Policies Vis-À-Vis Societal Reaction

ABSTRACT

This paper is analysis of the contemporary problems the Indian society is facing with respect to punitive policies. In the recent past, the Government has carried out the executions of two famous convicts, namely Ajmal Amir Kasab (the Mumbai 26/11 sole surviving terrorist) and that of the 2001 Parliament Attack convict Afzal Guru. As much as attempts have been made to politicise this conviction, the government has appealed continuously to stand united against terrorists and not put political motives over moral obligations. Though political analysts have heavily come down on the government for carrying the execution secretly, international organisations like Amnesty International describe such executions as a step backwards in the administrative process of the country. India remains as one of the few countries who still support death penalty. The procedure of executing a death row convict is pretty complex and the government comes under heavy criticism if they maintain a death row convict with great care. The reason for secret executions could be because the government wanted to do away with excessive media attention and political disruption in civil society before the execution was carried out. It is also true that death penalty is not a policy of reformation but it does satisfy the criteria of acting as a deterrent to future criminals. As much as the society wants the execution of such hard core criminals, it is a section of these very intellectuals who come up with issues of human rights when such executions are carried out. Therefore, this paper tries to explore why death sentence needs to be received by the society in a more sensible manner and that politicising such executions would only push the judicial process backwards.

INTRODUCTION

If any crime is followed by extreme suffering on the part of the criminal, then crime would most certainly disappear. The attributes of punishment which the society expects from the judiciary are uniformity, certainty, severity and also reduce in the delay of execution of sentences. This is what the classical school had to point out. The positivists were of the opinion that any method of punishment was regarded with relative scepticism. Uniformity according to the classicists referred to the similarity of punishment of offenders who violated a particular law. Their conception of certainty refers to the frequency with which violators are detected, tried in court and subsequently punished. It is certainly believed that swift and severe punishments can act as deterrents and help in subsequent reformation of the criminal, especially in white collar crimes. Putthamer has argued that punishment has never been given a fair chance to demonstrate how much it can accomplish, for the reason that we tend to assume that severe punishment will deter, even if it is not imposed certainly.[1]

Mitigation of Penalties

Officially prescribed punishments, irrespective of its severity, were hardly imposed with certainty or uniformly during early historical periods. This has been observed in the practice of mitigating official penalties and in the practice of imposing punitive measures differentially. Mitigation of penalties has been done in various ways.  One of the earliest methods used was to secure sanctuary. In England, in the thirteenth century, a criminal could seek refuge for a period of forty days after which he was bound to leave the realm by road or by port assigned to him. This system failed because by the middle of the sixteenth century, monasteries broke up and there was no scope for seeking sanctuary for offenses like rape, robbery and murder. Another system for mitigating penalties was the right of clergy.[2] This method grew in popularity because of the original demand of the church to try its own offenders. The Church being an ecclesiastical court was a distinct advantage because it could not impose death penalties or severe punishments except in cases of witchcraft or heresy.[3] A third method of mitigating penalties was through pardon. There was a provision where the king could relax the punishment in certain cases. Such power of pardon can be found with the President of India when the Supreme Court sentences a convict to death penalty.[4] A fourth method of mitigating punishments was the refusal to execute the punishments officially prescribed and imposed. In the seventeenth and eighteenth century, property owners in England demanded severe punishments in order to be protected. The execution largely never took place because the political and social power was present with the common people of England. Therefore corporal punishments disappeared from England because it offended public sentiment.[5] In the concluding part of the eighteenth century, British philosopher Jeremy Bentham made the following statement with respect to the penalty of branding:

“Burning in the hand, according as the criminal and the executioner can agree, is performed either with a cold or a red-hot iron; and if it be with a red-hot iron, it is only a slice of ham which is burnt; to complete the farce, the criminal screams, whilst it is only the fat which smokes and burns, and the knowing spectators only laugh at this parody of justice.”[6]

Differential imposition of punishments

There is a lot of evidence where the law that is required to be imposed on offenders is often not imposed. This often camouflages the unofficial societal reactions to crimes. Offenders may belong to different spheres of the society which essentially includes offenders from the higher society and therefore the society could perceive such an offender differently from the one who belongs from a lower class of the society. Discrimination is made because of age, status, political prestige, wealth, education and sex. For example, in the United States, a female offender would less likely be tried for a specific offence as a male would be. Similarly, a woman would likely be in prison for two thirds the period of a male for the same offence.[7] Economic influence also plays a big role in differential imposition of punishments especially in white collar crimes.[8]

Variations in the Justifications of Punitive Reactions

Reactions have been different for crimes committed by various offenders. The explanation for punishing offenders has also found substance in the reasons like retribution, places expiation, deterrence and reformation of the offender. The justifications have an ex post facto rationalization. Investigators are of the opinion that merely one or more motives are dominant but generally there is a prime motive that is exclusive for punitive reaction.[9] In Poland, research conducted by Thomas and Znaniecki have given results that Polish peasants’ motive for punishment was the restoration of the situation which existed before the crime, in other words, the idea was to restore status quo. Also renewal of solidarity of the group was also a desired goal, though revenge was purely a secondary consideration.[10]

Punishment as means of Retribution

Since the formulation of Hammurabi’s code, (around 1875 B.C.) whose basic philosophy was “an eye for an eye and a tooth for a tooth,” leaders of the ruling party and general public have advocated and accepted that criminals should deserve to suffer. The agony of suffering imposed by the State in its corporate capacity is considered the political counterpart of individual retribution. Learned philosopher Sir James Stephen once stated:

“Criminal procedure is to resentment what marriage is to affection: namely, the legal provision for an inevitable impulse of human beings.”

American psychologist John Dewey argued that we are not relieved of the responsibility of the consequences of our procedure by the fact that the offender is guilty.[11] It is believed that if a criminal is not punished appropriately, then one of the two consequences may follow: the victim may seek individual revenge or the victim may refuse to lodge a complaint or give testimony for the state which could cause a hindrance in the justice delivery system.

Punishment as a Deterrent

There are certain individuals who advocate punishment because it acts as an instrument of social utility, while others also are of the belief that infliction of pain on the criminal who has been convicted, acts as a deterrent for other criminals, even if certain cold blooded offenders are not deterred. The concept of punishment reduces crime is based on the hedonistic assumption that people regulate their behaviour by calculating the outcome of pain and pleasure resulting from their acts. American professor Dewey stated the fallacy in the following statement:

“Deliberation no more resembles the casting-up of accounts of profit and loss, pleasures and pains, than an actor engaged in a drama resemble a clerk recording debit and credit items in his ledger.”[12]

It is somewhere true that many prisoners have confessed that hardly the punishment has acted as a deterrent in their mind before committing the offence, since generally there is a high probability that they are governed by high emotions before they execute a criminal act. In a broader perspective, criminal law and its application by the judiciary have great impacts on public morality. It is true that specific severe punishments may have little immediate effect on the criminals, but the existence of a criminal procedure code and penal sanctions attached to it have a long run deterrent effect upon the development of criminal ideologies.[13] Deterrence has been the motive for punishment and therefore it has been carried out in the most brutal manner, be it witness the ducking stool or public hangings or gibbeting the body so that it stays in the minds of the public.

Punishment as a means of Reformation:

In general theory of criminal law, it is accepted that punishments have reformed criminals. This purpose is achieved by putting a fear of repetition of punishment, also by creating a belief that crime does not pay and if there is a prolonged period of imprisonment then it leaves the criminal with no possibility of developing any such criminal habit over a period of time. Objective tests have been carried out in order to measure how punishment can reform a criminal. Psychologist Lucille Chase concluded that the number of studies which showed that punishment was more effective than reward was greater than the number of studies that showed the opposite.[14] It is evident that the effect of punishment on reformation depends very much on the situation in which the punishment is inflicted.[15] The social institutions in which punishments for crime are inflicted are much more complicated and involve elements which are lacking in school punishments or experimental laboratory setups.[16]

Punishment and Social Solidarity

An interesting aspect of criminal procedure and its application on the society is that the respect for law grows mainly out of those who violate it, meaning, the public hates criminals and this hatred is expressed in the form of punishment. There may be a possibility that hatred towards the criminal may stimulate crime further but it is already asserted before that punishment acts as a deterrent and it also reaffirms law abiding ideals in the society. A.V. Lundstedt maintained that fear of punishment is not the significant value in punishment but rather the legal conscience, legal sentiments or moral feeling which have been administered to the public because of the operation of criminal law.[17]

Testing the Effectiveness of Punishment: Cases of Death Penalty

Death penalty has always been a debate in the media. The standards applied while giving a death sentence are variable. India was one of the 39 countries who voted against a UN Draft Resolution which called for abolishing death penalty. Some 110 nations voted in favour of doing away with death penalty. Countries like Iraq, Iran, Japan, Libya and Pakistan were also among those who did not want to do away with death penalty.[18] The most popular arguments given in favour of death penalty are (a) it is important to protect the criminal from getting lynched by the public, that is to say the criminal’s human rights should not be violated, (b) it is probably the most effective deterrent to punish grave offences like murder and rape, (c) it ensures that the murderer gets executed for certain because many such offenders obtain pardon and finally (d) commuting death sentence is rather more economical for the state than maintaining a convict for life in prison.[19]

DEATH PENALTY

INTRODUCTION

The Procedure: If death sentence is closely examined, then it has to be first confirmed by the High Court. There is a scope for an appeal to the Supreme Court. There also remains a scope for a mercy petition to the President which essentially has to be granted on consultation with the Government which also reflects political will. Even after a mercy petition is rejected there remains a scope for limited judicial review. The challenges are that justice is inevitably delayed. Besides that, it allows criminals to escape with lesser punishment, it also reflects political ambition of the ruling parties in order to garner votes and most importantly, it shows a very sorry example of justice to the society.

Unanswered questions: The victims, the citizens and now the counsels of the offenders continue to wonder why this excessive delay in deciding mercy petitions. If we solely talk about the procedure, then Afzal Guru’s petition has undergone an appeal, a review and a rectification and yet it has been sent back for reconsideration by President Pranab Mukherjee.  It is only recent that his execution has been carried out. The voice of the ruling party is sharply reflected in its reluctance to forward mercy petitions to the Executive. Therefore what can be the possible reasons why this delay occurs and at times worse happens when mercy petitions are upheld and the offender is reprieved. Once in a while when a death sentence is executed in the country, such academic debates seem to flourish every forum. Therefore there is a need to critically evaluate why the Indian government comes down lot less harsh than countries in the middle-east when it comes to executing death sentences. With heinous crimes against humanity and the State being committed, Kasab’s execution is only second quickest in India’s history after Ramachandra. This convict appealed before the then President Shankar Dayal Sharma and was executed on March 19, 1996 within six days of the petition reaching and being rejected the President.[20] It is only the second execution carried out since Dhananjoy Chatterjee’s execution in 2004 whose mercy petition was then rejected by President Kalam.

SOCIETY’S REACTION TO DEATH PENALTY

Pardon may assist helping an innocent person who has been convicted in order to prevent miscarriage of justice. This also gives a chance to the convict to repent his mistakes in prison. It needs to be considered that the President’s pardoning power is indeed a remedy after the trial courts and Supreme Court has convicted the offender beyond reasonable doubt. So therefore a mercy petition should be decided not the nature of the crime but on the basis of the fact that the convict has a chance of improving his character by confining him to a prison. The fact is that judicial standards should be equal and not judge centric or based on the arbitrary will of the Executive in remitting a death sentence. Government cannot grant mass remissions[21].

Death penalty has always been a debate in the media. The standards applied while giving a death sentence are variable. India was one of the 39 countries who voted against a UN Draft Resolution which called for abolishing death penalty. Some 110 nations voted in favour of doing away with death penalty. Countries like Iraq, Iran, Japan, Libya and Pakistan were also among those who did not want to do away with death penalty. The problem faced by the Indian judiciary is a little tricky. The interpretation of the term “rarest-of-rare”[22] cases has been harmoniously interpreted by the judges from time to time. The additional protection of a Presidential Pardon under Article 72 (1)[23] also grants a chance to the criminals. Article 72 gives the President of India the power to grant mercy to convicts with death sentence. Article 161 grants the Governor with similar powers of granting mercy but they are limited in scope in contrast to those of the President’s powers.

In a few months of assuming office, President Pranab Mukherjee has sent more people to the gallows than most of his predecessors. The sudden rush in death sentences being executed, with four former associates of the deceased sandalwood smuggler Veerappan now set to face the gallows, the death penalty seems to be an instrument that is unlikely to be sparingly used by the Indian government. Given that the current president has rejected six mercy petitions, the pressure will remain on the current government and the next to retain its iron fist in dealing with cases.[24]

Statistics proves that death penalty is not a deterrent in modern times. It only helps the offender escape suffering in the form of punishment. As a matter of fact today 100 countries have completely abolished death penalty and only 40 countries retain it as conducted in the latest United Nations Resolution. India. We also should recognise that in India death penalty has not changed the crime rate and to testify figures, we have the National Crime Bureau for help. We all know this for sure and if we have doubt we can check the records of National Crime Bureau. The rationale behind every punishment is to rectify a person and not to kill a person. Punishment should serve as a deterrent to the society therefore.[25]

POLITICISING THE EXECUTIONS

Politics is one of the basic determinants for major policy decisions and it is very much evident in the Afzal Guru’s case. There was no action taken on the mercy plea of Guru for eight years since the Supreme Court sentenced him to death, and with the upcoming elections and the United Progressive Alliance (UPA) well aware of the Commonwealth scam, 2G scam followed by the Adarsh scam and also the VVIP Chopper Scandal recently, it is believed that the UPA Government is doing the “cleaning up” act. Another reason why the government is resorting to death sentence executions could be because of the fact that the civil society is looking upto the government for stricter punishments after the Delhi Gangrape case, LokPal Bill and the AFSPA.[26]

Secret Executions Carried Out: The government has been highly criticised for the secret executions that have been carried out. As much as it makes sense by not involving the media, because of avoiding violent societal reactions, it is imperative that the government inform the family or the lawyer of the convict well in advance before the execution is carried out.

In the recent execution of Ajmal Amir Kasab, separate judicial standards were applied. The lawyer of Kasab or the family of Kasab was not informed before carrying out the execution. According to the Amnesty International, this amounts to violation of global standards with respect to use of death sentence. The organization called this as a step backwards as India joined the minority of the countries of the world who still carry out death sentence.

The right to legal aid is every convict’s right. Human rights defenders have ridiculed the execution because Ajmal Kasab was not provided with legal assistance in the drafting of his mercy petition, in fact, only a solitary sentence was sent by the jail authorities in September as Kasab’s mercy petition to the President. Such an incident occurred in spite of Advocate Yug Chaudhary sending a letter to the National Human Rights Commission and Maharashtra Government so that Kasab is provided with proper legal assistance. Also, that Kasab was denied a final appeal against the mercy petition. This shows that there definitely lies a discrepancy in the procedure.[27]

It was a shock and surprise for the entire nation when on 9th February, 2013, news channels flashed that Afzal Guru, one of the convicts in the Parliament attacks of 2001, was hanged in Tihar jail and his last rites was performed in jail without the knowledge of his family. All of this happened including the rejection of the mercy plea, without his family being informed of the execution. There was excessive criticism of the government when the postmaster in Jammu & Kashmir informed that the letter had only reached Guru’s family after the execution was carried out. Thus, basic civil rights were ignored. The family of the deceased still is in search for answers as to why the rejection of the mercy plea was not informed to them.

Death sentence is a more concrete method to set an example than life imprisonment:

Social and Economic Costs involved: With Ajmal Kasab and Afzal Guru enjoying high protection and therefore extreme care in prison, it is only fair that the government should avoid maintaining death row convicts. Such convicts are continuously under media attention, and as much as the country wants death penalty to be abolished, there is constant media pressure as to why the execution is pending in most cases.

Therefore death sentences need not be politicised. With the crime rate being pretty high, it only makes fair sense that hardcore offenders like serial killers and rapists go to the gallows which could ensure fairness to the victim, his/her family and to the society at large. It is being portrayed by the media that because of the upcoming general elections in 2014, an attempt is being made by the ruling government to win over the confidence of the masses but it is also true, that there can be no political motive in punishing convicts with death sentences who have been a threat to the country for a long while.

Political analysts view these executions, two in the past three months, as an attempt by the United Progressive Alliance (UPA) government to change the image that it is soft on terror. This political one-upmanship is harming the cause of peace in Jammu and Kashmir and chokes the liberal voice in the valley. Crying for the death penalty means deviating from the Gandhian philosophy of nonviolence. Some analysts believe that the government aims to send a strong message of zero tolerance for terrorism. In reality, Guru’s hanging has also sparked debate about the use of the death penalty to satisfy public anger at the cost of ignoring the root causes of anger and dissent.

CONCLUSION

The paper tries to analyse the societal reactions to punitive policies. The society tends to come easy on the offender on the grounds of human rights violation though the victim and his family always are of the opinion of obtaining the strictest or maximum punishment prescribed under the law. Death penalty is debated once in a while when such executions take place. In the recent past, two executions have been carried out secretly. The society has viewed it as a political move by the ruling government before the General Elections. This may be the case in hindsight but the general society would also believe that there would make no sense funding a death row convict like Ajmal Kasab when more than 40 percent of the country’s population is below the poverty line. It remains a debatable issue whether death sentence should be executed or not. The UN Draft Resolution had India on the side of those who support death penalties. The question is not about the execution. It is the consequences after the execution. Interestingly, the reasons why the media and political analysts have clung onto this issue is because of the reason that these executions were carried out secretly. While Kasab’s lawyer was not informed of the execution, Guru’s family was not informed about the mercy plea being rejected. This of course was a gross violation of human rights. Though there is no reason to believe that there was a political motive behind carrying out such executions. Sociologists would be of the opinion that life imprisonment is a form of mental punishment that a convict endures till he dies. The question is can India financially afford prisoners who are their political responsibilities whereas they continue to ignore those tax payers and many malnourished citizens of the country who elect them. The question in the days to come is how well the government shall handle such executions and punitive policies in rectifying the society.

By: Sourish Saha

REFERENCES

[1] Ernest W. Putthamer, Administration of Criminal Law (Chicago: University of Chicago Press), 1953, pp. 16-18.

[2] George Dalzell, Benefit of Clergy (Winston-Salem: Blair, 1955).

[3] Jerome Hall, Theft, Law and Society, Second Edition (Indianapolis: Bobbs-Merrill), 1952, pp. 110-118, 356-363.

[4] Article 72, The Constitution of India, 1950 (India).

[5] Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750 (New York: Macmillan, 1948) Volume I, pp. 143-164.

[6] Jeremy Bentham, “Principles of Penal Law,” in John Bowring, Editor, The Works of Jeremy Bentham (Edinburgh, W. Tait, 1843) p. 550.

[7] Otto Pollak, The Criminality of Women (Philadelphia: University of Pennsylvania Press, 1950), pp. 4-5.

[8] Edwin H. Sutherland, White Collar Crime (New York: Dryden, 1949)

[9] George H. Mead, “The Psychology of Punitive Justice,” American Journal of Sociology, 23 : 577-602, March, 1918.

[10] W.I. Thomas and F. Znaniecki, The Polish Peasant in Europe and America (Chicago: University of Chicago Press, 1927), Vol. II, pp. 1254-1255.

[11] John Dewey, Human Nature and Conduct (New York: Henry Holt, 1930), pp. 18-19.

[12] Supra n. 9.

[13] E. A. Ross, Social Control (New York: Macmillan, 1916), p. 125.

[14] Lucille Chase, “Motivation of Young Children,” University of Iowa Studies in Child Welfare, Vol. V, No. 3, March, 1932.

[15] Johs Andenaes, “General Prevention- Illusion or Reality?” Journal of Criminal Law, Criminology and Police Sciences, 43: 176-178, July-August 1952.

[16] For an analysis of the complexities in the effects of punishment see Laurence Sears, Responsibility: Its Development Through Punishment and Reward (New York: Columbia University Press, 1932), Part III, Chapter I.

[17] A. V. Lundstedt, Superstition or Rationality in Action for Peace?, (London: Longmans, Green, 1925), pp. 47-49, 190-192.

[18] Manoj Mitta, ‘Die Another Day’, available at http://articles.timesofindia.indiatimes.com/2011-09-04/special-report/30112491_1_mercy-petitions-mahendra-nath-das-parliament-attack-convict (Visited on 14 January 2012)

[19] Hugo A. Bedau, “A Survey of the Debate on Capital Punishment in Canada, England, and the United States, 1948-1958”, Prison Journal, 38: 35-45, October, 1958.

[20] Himanshi Dhawan, ‘Kasab execution second-quickest in India’s history’, The Times of India, Nov. 22, 2012.

[21] Meaning: Complete or partial cancellation of the penalty of a crime, whilst still being considered guilty of said crime (i.e., reduced penalty)

[22] Coined in the case of Bachan Singh v. State of Punjab AIR 1980 SC 898

[23] The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The Constitution of India, 1950 (India).

[24]Arun George, ‘From Afzal Guru to Veerappan aides: India must put death penalty on hold’, available at: http://www.firstpost.com/india/from-afzal-guru-to-veerappan-aides-india-must-put-death-penalty-on-hold-625116.html (Visited on 21 February, 2013)

[25] Dhananjay, ‘The Case of Afzal Guru: Time to say No to Death Penalty’, available at: http://www.pragoti.in/node/4906 (Visited on 21 February, 2013)

[26] Ibid.

[27] Manoj Mitta, Killer denied final appeal, The Times of India, Nov. 22, 2012.