A nation built on dharma, yet paralysed by doubt. Why?

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In the cradle of one of the world's oldest civilisations, where ‘dharma' was once the heartbeat of society, why do we falter when asked to pass the ultimate judgment?

This is the land of the Mahabharata and Ramayana - stories that didn't just entertain, but taught us the essence of justice, fairness, and the courage to stand by what's right. Once upon a time, our rulers held themselves accountable to the highest moral standards.

Justice wasn't just a word; it was a duty etched into the soul of this nation. And yet today, when the gravest of crimes shock our collective conscience, we hesitate. We fumble. We turn away from the harsh decisions that justice sometimes demands.

Yes, this is about the Kolkata rape-murder case that shook the country's conscience.

On August 9, a bright 31-year-old postgraduate trainee practising at Kolkata's RG Kar Hospital had just finished her duty at and taken a break at the seminar hall. A civic volunteer working for Kolkata Police enters the hall, brutally rapes her and murders her after the sexual assault.

Less than six months after the brutal crime - which triggered a number of protests, especially by the medical fraternity, in Kolkata and across the country - the court found Sanjoy Roy guilty and handed him life in jail till death.

This decision has sparked a wave of debate, with many questioning the integrity of our judicial system, which failed to deliver the ultimate form of justice.

Is the ‘rarest of rare' clause a hindrance?

The Supreme Court's doctrine of "rarest of the rare" cases, formulated after the Bachan Singh case in 1980, was meant to create a clear boundary for when the death penalty should be applied.

The case ruled that the death penalty is constitutional in India but should only be given in the "rarest of rare" cases, with careful consideration of all factors. The reasoning behind it was simple: death must be reserved for those crimes that are not just shocking, but beyond redemption.

What is the "rarest of the rare" clause? And who is empowered to determine what falls into this exclusive category? We're left to wonder if justice is becoming a lottery, with every heinous crime being filtered through the hazy lens of judicial interpretation. Does a brutal terrorist attack qualify? A child's brutal murder? Or is it just another statistic in a long line of violent acts that fail to pass the illusory threshold set by the courts?

Capital punishment is not just another law - it is the final, irreversible act of the state.

Every time a sentence of death is passed, it sends shockwaves through the system, but also through society, begging the question: why is it so hard for our courts to call a spade a spade?

Advocate TrivanKumar Karnani explains that the hesitation in imposing the death penalty, even in extreme cases, is rooted in the discretionary powers of judges who apply their judicial conscience after presiding over a trial, reviewing the evidence, and considering societal implications. "The decision to impose life imprisonment over the death penalty in cases such as the RG Kar Medical College case reflects the careful balance judges must strike," he says.

"Courts in India must evaluate numerous factors, including the criminal antecedents of the accused, the gravity of the offense, the circumstances under which the crime was committed, and the possibility of rehabilitation. The 'rarest of the rare' doctrine requires careful consideration of these elements," he explains further.

According to Karnani, India's legal framework, particularly regarding crimes against women, has evolved significantly, but it still upholds the principle that sentencing should not be merely about retribution or vengeance, but should include a focus on reformation and rehabilitation. "The judiciary is keenly aware of the need to safeguard against miscarriages of justice," he says.

The hesitation to execute the death penalty has become a disturbing pattern.

Whether it is a horrific terrorist act, the brutal rape and murder of an innocent woman, or a senseless mass killing: many of these criminals escape the ultimate punishment. The courts, citing the "rarest of the rare" criteria, fail to deliver closure to families who live every day in the shadows of their loved ones' brutal deaths.

‘Capital punishment needed but how do we trust system's integrity?'

Clinical psychologist Shreshtha Dutta offers a powerful psychological perspective on this issue, particularly in relation to Roy's case.

Dutta feels that the punishment for Roy's crime is insufficient. From a societal perspective, she believes the justice system should be based on logic and science, and there's a need to assess the environment in which an individual is raised.

In Roy's case, she mentions that his lack of character and basic civic sense may stem from a flawed upbringing or personality formation, which could involve childhood issues and a distorted psyche.

However, she points out that society is not investing enough resources in rehabilitating such individuals, and the environment is crucial for personal growth. "Without providing proper rehabilitation opportunities, life imprisonment is meaningless because it doesn't offer the chance for change," Dutta stresses.

She also brings up the nature versus nurture debate, highlighting how even individuals with good backgrounds and upbringing can commit heinous crimes, as their personality formation could be influenced by various unknown variables.

She points out that trauma, lack of moral obligation, or psychopathological issues could drive someone to commit such crimes.

"Trauma or psychological disturbances can lead to such heinous acts. We cannot ignore that mental health plays a significant role in how these individuals develop," she adds.

While she leans towards capital punishment in extreme cases, Dutta is concerned about the system's integrity. She stresses that capital punishment must be carefully considered, ensuring that it is only applied to the right person. "The risks of innocent people being wrongly sentenced are significant, and we must approach this with utmost caution," she adds, emphasising the need for a serious, unbiased approach in decision-making, especially when the stakes are as high as life and death.

‘High-ranking individuals escape accountability'

Women's rights activist Dr Lata Pratibha Madhukar, who has had a first-hand experience of the failures of the legal system, offers a critical analysis of India's approach to justice in the cases of rape. Drawing on significant legal battles, Madhukar references the landmark Mathura custodial rape case, wherein In 1972, a tribal girl, was allegedly raped by two policemen at a Maharashtra police station.

Their acquittal by the Supreme Court sparked protests, leading to the Criminal Law Amendment Act of 1983 and ignited the women's movement in India. "The movement, led by individuals such as Upendra Bakshi and Lotika Sarkar, demanded progressive judgments, particularly the shift in the onus of proof in custodial rape cases," she explains.

The case brought forth the essential idea that the onus of proof in custodial rape cases should fall on the witness, not the accused.

Madhukar sharply criticises the judiciary's tendency to release rapists, highlighting cases like that of Bhauri Devi, where high-ranking individuals escaped accountability.

A civilisational dilemma

India, with all its philosophies on karma, reincarnation, and the concept of ‘ahimsa (non-violence),' finds itself in a deep moral struggle when it comes to punishment.

While we revere the teachings of Buddha, who advocated for mercy, we hold sacred the principles of justice as seen in the epic tales of our civilisation. Our judicial system's struggle with capital punishment reflects this civilisational tug-of-war - a struggle between compassion and justice, between the need for fairness and the reality of moral outrage.

But what happens when the scales of justice tip too far in favour of mercy? What happens when the law's hesitation creates more pain, more chaos, and more despair for those left behind? Can a society that is reluctant to impose capital punishment truly be fair to the victims? Can we claim to uphold justice when murderers and rapists, whose crimes have torn apart innocent lives, are left to live on, in the name of "human rights"?

Advocate Karnani adds, "A more comprehensive approach, including preventive measures, education, empowerment of women, and speedy trials leading to timely justice, is necessary to truly deter such crimes in the long term. The law must address not only the crime but also the social and systemic factors that perpetuate such violence."

This brings us to the most pertinent question: who truly deserves to live in a society that has suffered the agony of violent crime? Should we turn a blind eye to the suffering of families who have been robbed of their loved ones?

The death penalty is not just a punishment; it is a statement, a statement that certain crimes are so vile, so inhumane, that they warrant the severest of consequences.

The real travesty lies not in the cases where the death penalty is imposed, but in the cases where justice is delayed, diluted, or denied altogether. The question remains: can we afford to be so hesitant when so much is at stake?