A Rape, A Murder, and An Execution

Brutal gangrape and murder in Hyderabad on November 26,2019 have led to major protests in Telangana and other parts of the country. The protestors raised issues including an end to violence against women, utilization of Nirbhaya fund, need for structural changes in the society, and justice for the victim. Any attempt by the government at meeting most of these demands would cost money.

The four accused in the case of rape and murder of the female veterinarian were killed by the Telangana police on the early morning of December 6, 2019, at Chatanpally of Shadnagar, 50 km from Hyderabad.

The fact that the culprits were not provided with a fair trial is a matter of concern for certain sections of the population. On the other hand, the arbitrariness with which such execution of culprits was carried out is striking. A concept of justice demand equality before the law. The worthy question is will the police execute all the rape accused in such a manner, will the police execute rape and murder accused who possess the money and political power to resist such actions? The answer is no. Does police execute all the rape and murder accused who do not possess money and political power? The answer again is no. When an action is evidently arbitrary it cannot claim to be justice, but then again features that the culprits and victim must exhibit for police to take such drastic measures is worthy of investigation.

The best way to comprehend any police action is through the perspective of maintenance of order. The protests and demands that emerged due to the gangrape and murder were threatening the mandate of maintaining order, the demands raised by different protesting groups to address the issues of violence against women including structural changes would have been a charge on the State finances. Even if the police do arrest the culprits, protests can carry on for a longer period under the banner of justice while also raising the demand for the structural changes to end the violence against women. Such acts would have put pressure both on the police force and the state treasury. Irrespective of whether it will reduce the crime against women or not, summary execution of the culprits was indeed the cheap and quick measure that the administration could have taken, to end the protests and to weaken the demand for widespread structural changes.

On Human Rights & Capital Punishment

Substantial number of countries all over the world as of now does not have capital punishment as part of their legal system, the highest punishment for any crimes committed in these countries is determined to be life imprisonment. A fact that was able to provide different movements and organisation all around the world confidence to demand the cessation of capital punishment at a global level. Such movements at international and national levels were able to gather popularity and support enough to make themselves heard in the political sphere of the countries which still uphold capital punishment. India is one such country that still maintains capital punishment as part of its legal system, even though courts are being directed by the supreme court to pronounce such punishment in 'rarest of the rare' case. To the surprise of many, the phrase 'rarest of the rare' which can take a human life is not defined adequately. Debates and deliberation in-order to bring forward an adequate understanding of 'rarest of the rare' are raging in India along with the movements which ask for the total ban on capital punishment. Arguments are being formulated and presented in the public sphere by different actors both for and against these positions.

One of the oft used argument in support of 'right to life' points towards the possibility of fault with the evidence available with the courts of law while passing judgements and emergence of certain unknown aspects later, which might prove the convict to be innocent or to a realization that his/her part in the incident is not as large as believed to be earlier. When such a scenario emerges if the court wants to rethink its judgement it would not be possible if the death penalty has been implemented. Even though this position does require adequate consideration this particular note does not attempt to engage with it. Rather attempt here is to enunciate the relationship between the concept of human rights and capital punishment.

Human rights can be understood as those inalienable rights which every human individual possess by the virtue of being a member of human species. As human rights are inalienable, under no circumstance can it be violated. It stands different in nature from privileged rights (such as the rights emerging from citizenship) which requires the individuals to perform certain function or to occupy certain status in order to be able to avail them. Right to life and individual sovereignty over one's own life stand at the centre of liberal values. Right to life finds itself as most prominent among human rights. Article 3 of 1948 Universal Declaration of Human Rights, adopted by the United Nations General Assembly declares that everyone has the 'right to life'. If we subscribe to the conception of human rights which include 'right to life' then we have to encounter an obvious contradiction that stares at us, the fact of existence of the death penalty in a number of countries in the world (including India).

These being said it becomes imperative to make an attempt to understand the principle on which a justification for capital punishment is made possible. One way to conceptualize it is through an understanding of retributive justice system. In a retributive justice system, those who commit a certain set of crimes can be given capital punishment. Such a framework takes away from the 'right to life' the status of being a human right and reduces it to a privilege. The merit of this principle rest with the relief that it provides. It is capable of satisfying those who want certain rights to be recognized as a human right but still want to maintain capital punishment. It leads to the establishment a conception of human right without 'right to life' being part of it.

Another possibility would be to bring in a socially constructed definition of human being, that is, to deny and de-legitimize the identification of a human being as such just by the virtue of belonging to the human species but to bring in other considerations (such as not committing certain actions which society see as inhuman). Unlike the former position where social understanding of the human being is same as the biological one, here the very idea of being human stripped off its biological notion. Thus it makes it impossible to have any human rights as defined at the beginning of this note.

The conclusion that can be derived from the discussion above would be that at a conceptual level those countries which still maintain capital punishment as a part of their justice system does not conceptually recognize 'right to life' as human right. At this juncture, doubt can be raised about the existence of the human rights itself but let us not forget there is one right which even the most cruel tyrant of our time will claim to have provided to even his most hated enemy, that is, the right to fair trial. There is not even a single country in this world that would not argue that it provided everyone within its jurisdiction with a fair trail. Thus even though there is no consensus among the countries of the world with respect to the 'right to life' as a human right, the fair trail as an ideal concept which requires to be implemented globally is accepted. Making it probably the only human right that no one dares to question.