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From Homines Sacri to Homo Sacer: Punishing the Immanent Sinister Inside

By Subhendra Bhowmick 

The question I wish to raise here is how death penalty is made possible, and particularly in the present Indian context. Is it not a very odd kind of death? Firstly, it is a form of death which is ‘optional’ in the sense that it could have been avoided. And, it is sanctioned and executed – in double sense—by the state itself, which is supposed to be there not for killing us, but for keeping us alive! Finally, the death is pronounced or ‘sentenced’ to be ‘installed’ by the judiciary not in haste, but upon, if necessary, years of thinking and deliberation, and in the solemnest possible manner, as if to hide the most obvious explanation for this sentencing: vengefulness  following the old principle of the ‘tallion law’ and sometimes mixing things up with symbolisms shading over the religious— the theme of sacrifice entwined with capitation, blood-shedding etc.—while living in (but not living up to?) a secularised legal-political domain. And for the judge himself, or for the executioner, or for someone who— despite being seated in the highest office— has to deny the appeal for clemency, should not the death of the convicted loom much larger? But they are ‘normal’ individuals, and, actually, ‘civilians’!

The load of justification is really high at present and the withdrawal of this penal provision from the majority of states today, the world over, and the wide criticisms of this lethal instrument in others wherein this practice is still operative, points to some uneasy contradiction.

Prima facie, we find three parties are involved in a death penalty event: the ‘guilty’/ punished himself, the authorised agency of the sovereign state executing the order of execution and the people who make for the sovereign. These three parties ideally constitute a single plank partially modelling on the ritual of sacrifice, the victims now replacing the sacrificed persona or homines sacri, while the authority issuing the penalty takes the place of ‘sacrificer’, and the sovereign state of the people stands for the deity. However, I will try to argue that the latter two sections actually merge only to make the impossibility of the death penalty possible.

With the apparent backtracking of the divine per se producing something covertly theological-political, the venerability of the sacred content of the sacrificed has transmuted into the ignominy of the homo sacer. Thus in some timeless fashion, inspired by a long tradition of scholarship in religion we may argue that, the sacred encompasses the mundane multitude from two disparate directions: one, affirmative and the other, negative (Agamben 1998). Apropos sacrifice, we are told by Henry Hubert and Marcel Mauss, it is the procedure of the ritual which remains behind the ‘unity’ of the phenomenon of sacrifice (Hubert and Mauss 1964); and we wonder whether the continuity between homines sacri and homo sacer is related not only to the thematic of sacrifice, but to their procedural identity too, the traces of which could be discerned in having the ‘victim’ bathed before offering him to the divine-turned-sovereign at the secularised ‘altar’ or the hangman’s platform, wherein the caput of the victim would be ‘taken’ by winding the noose around his neck, while evading the gory show of the old-fashioned capitation.  Agamben has shown us that every one of us is a potential homo sacer having a ‘bare life’ (Murray 2010) that could arguably be put to destruction to propitiate the sovereign. This idea of destruction further alludes to the participation in the thematic of sacrifice (Hubert and Mauss op cit); for, what else would be the purpose of useless destruction other than to ingratiate someone who stands beyond the world of the profane uses— i.e. the sacred—be Him the divine or something modelled on Him, for example, the sovereign state? Is it not tempting to liken this to the fable of the lion-king who protects his subject animals from the wrath and greed of the predators including him, but exclusively on the tyrannical and cruel condition of His Majesty’s receiving daily one and only one animal to devour?

While this is more reasonable on the part of the lion-king, the subject animals would do better if they revolt. But what if they are themselves somehow obliged to offer this tribute? Often death penalty draws justifications through some kind of immanent ‘guilt’-consciousness of the people, when taken one at a time. Even though we partially doubt the veracity of the Freudian thesis founding the ‘originary’ guilt incurred by the double sin of parricide and maternal incest (Freud 1938: de Ville 2011), particularly outside the context of the Viennese middle class whence Freud hailed, could we not see that it is indeed difficult not to feel always already ‘guilty’ of destroying multiform life by the sheer necessity of surviving (and there are so many other sins that we always commit, or think to commit, or think not not  to commit etc.)? The naïveté of the last statement would perhaps be tolerated if we agree to think in terms of Karma which is relentless in always bringing us in its fold, as the Jain philosophers were never tired of to tell us. And many of the ancient Indian philosophers— including Buddhists and Hindus of various schools of thought— have always concerned themselves to search for Nirvana/renunciation or freedom from the cycles of birth (Basham 1989). Then, am I not paying for the wrongs we have done in my previous birth, rendering me always already guilty? But this has ramifications for my present birth too, and this is more serious!

Am I not ‘culpable’ myself (as I recall the headline of a reputed English daily published from Kolkata on the day after the death of Damini, the fictitious name of the young lady who had to suffer her tragic death after being ravaged in the most horrific gang-rape and brutal murder by the rapists) (Datta 2012) as many a sin I am always perpetrating on my fellow beings? Should I not search for a scapegoat then, within the reach of this very birth, to condone myself of at least some of my offences? Now what is the harm if occasionally I find someone to wear a noose, forcefully indeed, by the diktat rendered by the arm of the law alias the hand of the God? The logic of such yearning for eternal death is to be posed alongside the guilt-consciousness that we earn throughout my living. Thus one part of me belongs to the sovereign in the capacity of the punisher, but the other is the dark side of me and should always be punished.

This is how we fail to live up to our death falling much short of the ‘being-toward-death’ who ‘cares’ for his future course of actions once he knows that his being is limited in time, as Heidegger tells us (Mulhall 2005; Audi 1999). On the contrary, we ‘die’ to wish to die before our death with every death of those who are convicted to death penalty after having waded through the ordeal of trial in the court of law even before ‘the judgment day’! But this lacuna of responsibility of ‘being there’ in this world propels us not to ask for forgiveness for the sinners, for, in that case, we have to face, within the span of our present life, the consequences of our own sins, as there would be none in the order of a scapegoat to fall back upon! Our entrenchment in ‘everydayness’ occludes our faculty of seeing through the truth of the impossibility of punishing the very person that has committed the crime. For, he is now in a contrapuntal position whence he could see how every possible ‘rarity’ (we are referring here to the clause added by the Supreme Court of India: “the rarest of the rare”) of his felony is now being re-worded in legal terms—a language ever ready to render itself to ‘read’ crime in the text of a ‘sinful’ act but always falsify itself by moving away—differing and deferring , as Derrida taught us(Norris 1991)—from the context and the ‘lived experience’ of the sinner as well as the victim, thereby causing a variance over the nature, quantum and participation in the ‘crime’ (e.g. the rape victim herself often  feels ‘faulted’ and even sort-of-incriminated during legal procedures). With the vengeful ‘tallion law’ in place one can find a fine arrangement of moral economy settling the score between the criminal and the others and the punishment loses much of its (es)sense.

Theatricals of the law court notwithstanding, we must genuflect before the court of our conscience. One cannot escape being flabbergasted by noticing how the Indians belonging to all possible cross-sections are supporting, and sometimes clamouring, for death penalty— either as a policy or as the due to be paid by some notorious wrongdoer. Nowadays it is common knowledge that, historically, as a deterrent, death penalty fared poorly enough! Durkheim wisely thought that this ‘repressive law’ could only satisfy the ‘collective conscience’—the totality of the values and beliefs commonly held by an average member of a community (Durkheim 1984). However, we sympathise more with the mature Durkheim who wished to delve deeper into the mental world of the people to find the seat of the ‘collective conscience’ in the symbolic world of the ‘sacred’— ‘things set apart and forbidden’ to be used in the secular domain (Durkheim 1961). But to understand the Indian situation, particularly, this symbolism has to be searched inside us too in a more complicated sense. We ferret out our offending part-self and extrapolate it only to superimpose the same onto some unfortunate soul who went only too far and thus could help project himself as the ‘sink’ of every sin and ‘thought-crime’ we commit and serve our ever guilty souls. And, then, to exonerate ourselves of all possible and impossible-turned-possible sins ever (to be) committed by us, we proceed to kill ‘Him’ collectively by walking the ‘non’-violent and ‘disciplined’ candle-lit processions, as if in complicity, kindling the flames of unkind candles, holding fast to their ‘softness’ (Patra 2013) in a hardened and strangling grip in our individual (right) hands, and keeping our ‘sinister’ (left) hands identified with the ‘sinner’!

Pic-credit: Here 

Subhendra Bhowmick is Assistant Professor, Department of Sociology, SKB University, Purulia, West Bengal, India. He can be reached at

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