Deterrent Therapy

Shri. Nagendar Sharma, in Hindustan Times of 13^th Sept 2013, has written a small but good piece on the verdict in the Delhi gang-rape case. He writes that the country has some isolated islands of dissent in the general euphoria over the death penalty awarded to the convicts of the case. We have a class that is opposed to the death sentence as a matter of principle. They see the tendency to award death penalty as a way of looking for quick-fix solutions. It serves more to pacify the public anger instead of acting as deterrent. The safety and empowerment of women cannot be achieved by these fast food means, they argue. To an extent, the argument does make sense.

Veteran Human Rights Lawyer ND Panchouli has advocated for keeping the convicts in jail throughout their lives. In the same vein, he has also made a somewhat funny argument. “The prosecution repeatedly stressed that the juvenile was the most brutal among all the accused. Then how can it ever be justified that he will remain alive and four others will hang?”

Supreme Court lawyer Kamini Jaiswal has another argument. "I have no problem with the court holding the accused guilty, but I fail to understand why only the poor get death sentence in India? Is there a single case of a rich person being hanged?" she asked. Another lawyer, Smt. Karuna Nandy, on the other hand gave a much more sensible reaction. “Eliminating these men will not eliminate the culture of rape,” she said. Former Delhi high court chief justice Rajinder Sachar is also “not sure whether the death sentence acts as a deterrent against heinous crimes.”

 Reaction of the Asian Centre for Human Rights said that the death penalty could be counter-productive since the possibility of victims being murdered by criminals in order to destroy evidence must not be overlooked.

On going through the reactions, one wonders whether it’s the lawyers who are the weakest of all in logic and arguments. N D Panchouli’s reaction, for example, makes a mockery of the process of law-making. It has been said time and again, particularly in reference to this case, that the juvenile has got a very very lenient sentence, purely because of the weakness of law. In fact, one of the fallouts of this case is that the laws dealing with juvenile crimes are being revisited. If Shri. Panchouli wants to put weakness of one law as the strength of the other one, he should lawfully be outlawed. There seems nothing that one can do about it.

Similar is the case of Smt. Jaiswal. Instead of thinking of the effectiveness of the law, she is worried about the starting point. What she should have done instead is to bring similar cases where rich people are involved, before the judicial system by means of PIL or any other means she thinks right. One wonders what she meant by that reaction. If law has failed to convict a rich criminal, should it fail in case of one poor criminal also, to maintain equity? Its people like these that have made a nonsense of not only themselves but also of the cause they have taken up. I think the cause will be served better if these ‘lawyers’ keep quiet than make a fool of themselves and make more harm to the serious issue of Human Rights.

Ms. Nandy’s comments are, in contrast, serious; and so are those of Shri. Sachar. They both are right. The sentence will not serve the deterrent the society is looking at. But the reason lies elsewhere. I think the single most important reason for the failure of law, the legal process and its ability to act as a deterrent is the extremely low rate of conviction. And it’s not the police to be blamed in this case; make no mistake about it. The law, as a person, should also accept its share of the blame. No one is complete in the human world. But the law expects that the police should be complete when they put up a case in the court. The onus of proof and the extent of need of proof are one of the reasons for this low conviction rate. Somebody has said in some other reference that in human world, if something can be misused, rest assured it will be misused. Somebody or the other will misuse it. On the same lines probably, I feel many times the law is making for its own failure. The aim of judiciary is no innocent should be punished, though ten criminals go scot-free in the process. We can safely presume that on an average, ten out of eleven criminals are being let free.

Kautilya, in his Arthsastra, has pointed out before two and a half millennia, that the crimes reduce not when the punishments are harsh, but when the rate of convictions and punishments being awarded is high. If society has a feeling that no crime will be covered for long enough and no criminal will be spared, it’s this feel that acts as the deterrent. With the kind of conviction rate that we have, no punishment can ever act as a deterrent. So sporadic convictions and jocular comments is what we are in for, in the foreseeable future also. Or shall we pray for the Jaiswals and Panchoulis among us by saying “Oh Lord, please forgive them for they know not what they are talking. Amen”