DEATH PENALTY IN INDIA: A DECONSTRUCTION
By: Harsh Panwar* & Nishi Bhamkar^ |
Stringent laws find a place in society because it is believed that, the more stringent law is, the more is its deterrent effect. The death penalty, an epitome of stringency in law, found a renewed acceptance after the execution of Nirbhaya convicts. It has been viewed by supporters as the most effective punishment in this regard. There are currently 18 central legislations having 59 provisions that warrant Death Penalty.
The article tries to analyze the relationship between the stringency of laws and deterrence in crime via death penalty by deciphering whether the deterrence it creates is adequate enough to justify it. The article first examines the effectiveness of the death penalty as a deterrent. Then, it discusses how stringent punishment results in adverse socio-legal consequences. Further, it deals with the ultimate moral question of ‘whether death as a punishment is justified’. Lastly, the article concludes by proving its stance and also providing a viable alternative to capital punishment.
Death Penalty, an effective deterrent?
The proponents of the death penalty emphasize mostly upon the deterrent effect caused by the fear of death amongst potential wrongdoers. It is a general belief that every individual fears death and therefore the instinct of self-preservation will overcome the desire to cause an act that entails death as a penal consequence. These beliefs rest upon many assumptions, the first being that potential offenders know about the offences which warrant capital punishment and second that they are rational individuals capable of conducting a cost-benefit analysis before committing a crime. However, these assumptions are largely invalid in light of the fact that there is ample evidence to show that both the general public and potential offenders have a little or no knowledge of the penalties which they can be subjected to for committing a particular crime. Moreover, it is also observed that most individuals committing such crimes are usually not rational beings, as such crimes are often committed in a fit of rage, or when the offender is clinically depressed, or is motivated out of strong emotions such as revenge or lust. Empirical evidence does not lend much credibility to the effectiveness of capital punishment either. Studies conducted in the UK revealed that homicide rates after the reintroduction of capital punishment remained virtually the same. In addition to this, The UN Human Rights Commission has also noted that there has been no conclusive evidence to have a direct link between deterrence and death penalty.
It must also be considered that apart from the death penalty, there lies a multitude of other measures that may do a better job at deterring a particular crime. For example, considering aggravated sexual offences, if we rank various deterrents like stricter policing, mandatory self-defence training for women, better street lighting and other infrastructure, along with death penalty, it would be quite logical to place these factors higher in ranks compared to the death penalty, as these measures have a direct effect on the criminal act concerned. A similar analysis can be done for other offences warranting death penalty. A good deterrent is one which has a direct and substantive correlation with the offence concerned. Renowned American criminologist Daniel S. Nagin, in his 2013 essay succinctly summarised that it is the certainty and swiftness of punishment which produces more deterrence than the severity of punishment because it is certain that superior law and order enforcement will produce lesser crime rates and hence deter future offenders from committing crimes. Considering the above arguments, the death penalty should not be retained on account of deterrence.
The Socio-legal aspects of Death Penalty
The relationship between stringency and deterrence captures a socio-legal dimension as well. In 1969, the Supreme Court in the case of Ram Chandra v. State of Rajasthan (Ravji case) made a statement that paved the way out to all the confusion that could ever exist in the procedural law on the award of the death penalty by holding that “the nature and gravity of the crime and not the criminal, should decide what an appropriate punishment in a criminal trial could be.” It implied that the law will turn a deaf ear to the criminal and his circumstantial odds irrespective of the social, economic, or moral circumstances that compel a person to commit a crime, and punish him for what meets the eye. This precedent is wrongfully set as different situations demand different justice.
It then did not seem that big of a mess and fortunately in Bachan Singh v. State of Punjab, the SC gave the best possible framework on the award of the death penalty. Firstly the court said that, “both the aggravating and the mitigating factors must be taken into consideration while determining the adequate punishment for a crime”. Then, it laid down “the rarest of rare doctrine”. Both these frameworks have been the bulwark of legal processes centred around capital punishment in India. But this master judgement didn’t make much of a difference, as by then, the precedent which was set in the Ravji case had already been used to convict many. At least 15 criminals had been sentenced to death as a result of it, and for some of them, the SC’s realization of its mistake was too late. Finally, in 2009 the SC in Santosh Kumar Bariyar v. State of Maharashtra declared the Ravji judgement per incuriam and upheld Bachan Singh's ruling.
The bench in Bachan Singh did not involve itself in defining what cases specifically constituted “rarest of rare”, but the one in Machhi Singh v. State of Punjab tried to peg down the same using some pointers and examples. Ironically, though it was supposed to be an annexure to the Bachan Singh framework, it ended up being crime-centric with considerations like: “manner of commission of murder”, “motive for commission of murder”, “anti-social or abhorrent nature of the crime” and the “personality of the victim”. All these pointers focused only on the crime and not on the criminal, going against the very substance of the Bachan Singh judgment, which talked about considering both the crime and the circumstantial differences of the criminals that made them commit the same.
Both these judgments set up totally diverging precedents for the courts to follow even though they ran on the same line of thought initially. This ingrained a confused sense of arbitrariness in India’s death penalty jurisprudence. Flaws of Machhi Singh judgment were pointed out in Swami Shraddananda v. State of Karnataka and also in the Bariyar judgment. Justice Aftab Alam, writing on behalf of a three-judge bench, ruled that categories framed in Machhi Singh might be useful, but could not be taken as “inflexible, absolute or immutable.”Later in the Bariyar judgment, Justice Sinha highlighted that Machhi Singh had bred a particular incoherence that gave rise to a state of uncertainty in capital sentencing law, clearly in foul of constitutional due process. But even after that, it still remains a judge centric law and the judges ironically have a choice as to the kind of application of the rarest of rare doctrine.
Gurvail Singh v. State of Punjab favoured that both, the crime and the criminal tests are important. But Justice Radhakrishna’s opinion in Shankar Kisanrao Khade v. State of Maharashtra further vexed up the situation when he held in his comment that the rarest of rare test is distinct from the one which takes into account the socio-economic circumstances of the criminal. He first ruled that there should be no mitigating circumstances favouring the criminal to award the death penalty and then in the very same case, concluded that another rarest of rare test, nonetheless ought to be conducted to see whether society’s abhorrence demands the award of the death penalty, contradicting his own stand in the same comment.
In essense, the legal framework around death penalty in India became nothing but a jumble of contradicting precedents, and when the most stringent punishment is clubbed with the arbitrariness of 'rarest of rare', it undoubtedly creates a scope for terrible miscarriage of justice. However, the complexity does not end here and the sociological problems worsen the situation.
The stringency of capital punishment becomes a hindrance rather than a solution in trials where the rapist himself is family to the victim. Facing the guilt of sending a known person to the gallows, the victim and her family are not likely to report the incident. Furthermore, the excruciating delays in the criminal justice system and the uncertainty of punishment take a huge toll on the mental health of the victim.
The procedure for a criminal trial is even harsher for the accused. The rhetoric of strengthening rights of victims by sacrificing crucial rights of accused found great favour among judges and politicians. This results in wrongful convictions with the real perpetrators never being responsible. Prisoners facing death row have been subjected to unfair trials, routine torture and frequent or excessive solitary confinement. The most poignant consequence among these is that the burden of the death penalty is always imposed on the poor and marginalized as they are unable to afford legal representation. This goes on to prove that our criminal justice system is severely broken at both ends.
The social perception of judicial and extrajudicial killings displays a terrible hypocrisy. The society confuses morality with sentimentality when they conceive murder as loathsome and then end up justifying the extrajudicial killing of rapists. Death of rapists, for example, is morally wrong but sentimentally correct for them as it stems from vengeance for the victim and her family. In this very sentimentality, many fail to observe it as another extremum. This tendency of the society can be witnessed in the Nirbhaya case: Mukesh & others v. State (NCT Delhi).
Instead of being an effective deterrent, death penalty gives birth to more sociological problems like altruistic suicidal tendencies and cases of odd criminals not afraid of death, ready to kill and get killed for the ‘greater good’. Therefore, the stringency of the laws, instead of producing deterrence, results in complex social and legal issues.
The Ethical Question on Capital Punishment
At this point, one may be prompted to think whether the most stringent punishment be warranted had there been a fair system to administer it? It has been fairly established that overcoming all the procedural obstacles to reach a 'fair' system to justify the death penalty is merely a logical possibility, which would entail an enormous societal transformation. However, for the purpose of this article, it is still necessary to dive into the ethical question of “should the law take one’s life?”
The basic premise of the death penalty is stemmed in vengeance. This implies that if a person has killed someone, then it's only appropriate that such a person must be killed as a response to it. This justification for punishment is reminiscent of a historical era and does not yield much significance in the modern legal system. We do not follow a tit-for-tat logic of punishment. A person convicted for arson does not get punished by having his/her house set on fire, rather they are fined or sent to prison. There remains no reason for the last vestiges of this logic to be retained in the form of the death penalty. However, there is another fundamental argument which involves understanding who is actually responsible for a crime. It is important to acknowledge that no individual is solely responsible for a crime. There is always a social reality which impels one to commit certain criminal acts. Every individual is a product of his/her circumstances which means that the social surroundings of an individual have a huge bearing in shaping their notions of morality. Hence, the process of socialization contributes to individual thinking that he can kill certain people or rape them. Crimes then become a product of social failure and not an individual’s will. Death penalty solely holds the individual responsible for their acts and therefore cannot be said to gain ethical acceptance. The Lok Sabha attempted to question the claim of the immorality of capital punishment by quoting that “keeping one person alive at the cost of the lives of numerous members or potential victims in the society is unbelievable and in fact, that is morally wrong”. As proven above, it is even more morally incorrect to assume that persons put to death row are inherently bad and that society plays no role in moulding them to commit life-threatening acts. It may also be that in many cases, victims would not want to push for the death sentence as shown in the previous section.
It can be concluded that there is no direct link between the stringency of punishment and the deterrence in crime for death sentences. The arguments provided above show that deterrence is dependent on various other factors. Only by making the law more stringent, the state cannot deter crimes. In fact with such stringent laws, like the death penalty, the state does more harm than good to its people. The death penalty though seems like an easy solution, is not the correct one. The same has been proved by considering the various socio-legal and ethical dimensions of the death penalty. In these circumstances, this article calls for the abolition of the Death Penalty from India.
Talking about the viable alternatives of the same, the most popular alternative among abolitionists is life imprisonment without parole. It can be justified both on accounts of the victim and the offender. On account of the offender, it does not hold a person fully accountable to his crime and gives him a chance for reformation. Most importantly, it can avoid killing convicts that turn out to be innocent. On account of the victim, it saves them from the agony of the uncertainty of the offenders receiving the death sentence and allows scope for reconciliation through mediation.
* Student at National Law University, Delhi.
^ Student at National Law Institute University, Bhopal.
 Shubhi Kanga, We Villianise Rapists To Exonerate Ourselves, <https://caravanmagazine.in/law/death-penalty-execution-delhi-gang-rape-anup-surendranath>  Death Penalty India Report, Project 39A, 2016 (Vol 1)  Law Commission of India, 35th Report, 1967 <https://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf>  ibid  David Anderson, The Deterrence Hypothesis and Picking Pockets at the Pick Pockets Hanging, Amer. Law &Econ. Rev. (2002)  Law commission of India, 262nd report, 2015, <http://lawcommissionofindia.nic.in/reports/Report262.pdf>  Report of UK Royal Commission on the Death Penalty, 1953.  Moving away from the Death Penalty: Lessons from South-East Asia, UNHRC (2014).  Nagin, Daniel S., "Deterrence in the Twenty-First Century," in Crime and Justice in America: 1975-2025, ed. M. Tonry, Chicago, Ill.: University of Chicago Press, 2013: 199-264  (1996) 2 SCC 275  AIR 1980 SC 898  Law Commission Report on 'Death Penalty': A Chance to Overcome Incoherence in Indian Jurisprudence? Author(s): SUHRITH PARTHASARATHY Source: Economic and Political Weekly, Vol. 49, No. 29 (JULY 19, 2014), pp. 15-18  (2009) 6 SCC 498  Supra note 9  (1983) 3 SCC 470  Supra note 9  (2008) 13 SCC 767  (2013) 2 SCC 713  (2013) 5 SCC 546  Anup Surendranath, India’s broken criminal justice system cannot support death penalty, <https://www.project39a.com/blog/2019/3/13/indias-broken-criminal-justice-system-cannot-support-the-death-penalty>  (2017) 3 SCC 719  Supra note 7  Anup Surendranath, Should we do away with capital punishment, available at <https://www.project39a.com/blog/2018/2/20/should-we-do-away-with-capital-punishment>  Capital Punishment In India, Reference Note, No. 27/RN/Ref./October/2015  Sentencing Alternatives, DPIC, available at <https://deathpenaltyinfo.org/policy-issues/sentencing-alternatives>