This is a period when opinions against the death penalty are being disseminated all around the world. Since the birth of the 20th century, Western thinkers have formulated arguments against capital punishment. Among them, Arthur Koestler (1905-1983), a Hungarian writer, is particularly important. He was subject to imprisonment under the dictatorship of a fascist regime.
During the Spanish Civil War, he was taken prisoner under sentence of death. He experienced the many brutalities of an authoritarian regime during his lifetime. Through his novel, Darkness at Noon, he exposed the dictatorial nature of Stalin’s regime for the world to see. It must be said that Arthur Koestler was the first person to plant thoughts against the death penalty deep in the minds of writers across the world.
In India, Mahatma Gandhi and Jayaprakash Narayanan were important figures in engendering opinions against the death penalty among writers. Humanity is the underlying value that forms the basis of a writer’s creative vision. Therefore, it is none too surprising that writers in India and the rest of the world have been captivated by considerations against the death penalty.
Even if we hold great affinity towards a particular thought, we need some sort of a crisis to be able to act in relation to it, and explain the effect of that action to society at large. At this juncture, Indian writers, particularly Tamil writers, are faced with a critical period to strengthen the reasoning against capital punishment.
After the assassination of Rajiv Gandhi, four of the accused: Nalini, Murugan, Perarivalan and Santhan, have been pushed towards the state of being hanged. There are many reasons to commute their death sentence to life imprisonment. I will put forth a few of them here.
In the case of the Rajiv Gandhi’s assassination, the Central Bureau of Investigation recorded 41 people as suspects in the crime. Twelve suspects, who were considered crucial to the commission of the crime, died before the investigation. Two of them had died during the blast itself. Another 10, anticipating the torture ahead of them, committed suicide. Three others were proclaimed criminals; they could not be arrested.
The remaining 26 suspects were arrested and presented for investigation. All of them were given death sentences by the special TADA court. The Supreme Court freed 19 of those 26. It commuted the death sentences of three of the remaining seven to life imprisonment. The death sentences of the other four were upheld.
These four people did not play a major role in the commission of the crime. According to the report on Rajiv Gandhi’s assassination, they played only supporting roles. That does not mean we consider them innocent. We are not asking that they be released either. They need to be punished in proportion to their crime. But when we look at the small part they played, the question of whether they need to face the death penalty for it arises in our minds.
Had the main perpetrators of the crime – Sivarasan, Suba and others – been apprehended and investigated, there is basis to assume that the four currently facing the death penalty would not have been awarded the same. The case was conducted under the provisions of TADA and other similar laws.
TADA, which was introduced in 1985, was strongly condemned by compassionate scholars and legal experts. In Parliament as well, the majority opposed it. The central government washed its hands of it in 1999. It would be more accurate to say that it slipped it off its hands.
TADA contains many cruel features. I will not list all of them here. Let me mention only one feature. It states that a confession received by a senior police officer from a suspect can be administered as evidence. Legal scholars have pointed this out as the most perilous feature of the Act.
There cannot be anyone in this country who is unaware that the use of violence to extract confessions from suspects in an investigation is part of the culture of the police department. If the Supreme Court had been a little sceptical towards the confessions of the accused, it would have mitigated their situation.
It is surprising that the judges of the Supreme Court have declared the verdict without casting any doubt. At this point, we must also take into account that the 10 suspects who killed themselves did so because they were afraid of this very police culture.
They have not been presented to us as people whose socio-economic backgrounds could have allowed them the capacity to create such a big conspiracy. There are reasons to believe that they were people who, owing to bitterness and frustration stemming from the conditions of their life, went down the wrong path. Since the case was registered, they have spent eight years in prison. I believe that it would be easy for imaginative writers to comprehend the suffering that they would have experienced in these eight years.
We, as writers, should protest that no matter how severe their crime, all convicts facing the death penalty in India must have their sentences commuted to life imprisonment. That four people are on the verge of being hanged presents a crisis for us. By foregrounding them, we are striving to make a great change in the law.
Our aim is to expunge all provisions for a death sentence from our statutes. It is an obscene law. I believe that it would not be incorrect to call it barbaric.
Writers can never be stagnant in outdated modes of thinking. They are the ones who need to know the intricacies of contemporary society and represent them. Only if we grasp the contemporary thinking on social structure, crime and criminology can we fully comprehend the nuances of our complicated society. Additionally, we must be knowledgeable about the relationship between punishment and humans, as well as the relationship between punishment and community. The dark thoughts that lurk in the human mind, hidden from sight, must also be known to us.
There has never been a permanent law or punishment in history. No law is sacred. The respectability of a law depends on how well it protects the welfare of a society. Over the years, various societies have imposed severe punishments for extremely minor offences. Death penalties have been enforced for crimes like theft, arson and robbery. Criminals have been whipped, crushed, boiled in oil, skinned, crucified, stoned and impaled.
The punishment that one person receives for a crime acts as a deterrent against other people committing that crime – this is the foundational principle of criminal law. This in itself is outdated thinking.
If one looks at the history of criminal law, it becomes evident that the kind of beneficial community that is sought to be established has never materialised. A system of law which does not assimilate the empathetic considerations that changing times generate becomes an evil of society. We live in such a society, where the law is outmoded.
It is not possible to separate the mind that commits a crime from the fabric of society. To what extent is the community that we have created principled enough to produce individuals who do not commit crimes? What assurances are there that a person will receive the bare minimum of physical and emotional nourishment that every human needs?
Countless Tamil films have been made based on the hostile notion of revenge. These films instil the worst of violent thoughts in the minds of viewers. The government looks forward to the entertainment tax from these films that preach violence. Only people who maintain physical and mental welfare can function with stability in society.
It is by selling alcohol – which undermines a person’s stability, degenerates body and mind, places women in unrelenting misery – that our government sustains itself. Most of our politicians reap profits through the functioning of anti-social activities. A man seeking to lead an honourable life ends up constantly wondering if he is a fool. We live in a society with people who operate under the belief that their wealth, authority, caste capital and political strength will allow them to commit any crime whatsoever and emerge unscathed.
According to contemporary thinking, those who commit crimes are like diseased people, requiring psychological and physical treatment. It is to obtain this treatment that they are isolated from society for a stipulated period of time. This is like the quarantining of a sick person. There is strong hope among today’s intellectuals that there can be treatment methods, based on current research, that would allow the majority of convicts to become productive members of society.
Callous people – without compassion, without any knowledge of contemporary thinking, uninfluenced by poetic tradition, mythological tradition and religious thought, welcoming thoughts of vengeance, relishing in displaying cruelties on fellow humans – cannot reform any criminal.
The people overseeing criminals today only make them degenerate into even worse criminals. They are also inclined to justify such degeneration. In fact, the ones who should oversee criminals are the scholars, psychologists and psychiatrists who are aware of the current modes of thinking.
Their combined thinking will impart the necessary physical and mental nourishment for convicts and reform them into people who add value to society. Writers must work accordingly to foster such a day. I request all the writers gathered here to take the first step towards that resolution and immerse themselves in the commendable work of abolishing the death penalty.
Presented to the Conference of Writers Against Death Penalty, Chennai, November 27, 1999. Published in Dinamani, November 30, 1999.
Translated from the Tamil by S Mukundan. The translator is a 21-year-old graduate of English, Political Science and History, currently preparing for a Masters in Cultural Studies.