This article has been written by Prateek Giri Goswami.

Introduction

The term ‘Justice’ has various connotations in the society, It has been construed in every colourful manner befitting an individual’s conscience. Punishment and justice are entwined in ways to maintain order in society. When a wrongdoer goes unpunished, the possibility of any kind justice ceases to exist, Justice cannot be served without the necessary concomitant of punishment. Hence, it can be said without exaggeration that punishment is the fulcrum in securing justice. Under this very context of punishment, comes the death penalty which is also infamously called capital punishment. Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial. Execution of person for some particular crime is not a new notion, its provenance can be traced back to time immemorial, it has its roots in various religious texts and it has been embraced in almost every community in the past but it has become the most controversial type of punishment in the modern times with the contention that sanctity of human life outweighs securing of justice through capital punishment and the belief in the rehabilitation of a person led to the condemnation of capital punishment. In India capital punishment is awarded only for heinous crimes, In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty[1], again in November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to end the institution of capital punishment globally[2], the very existence of capital punishment in the legal system of India since independence shows the entrenched stance of government favouring it and it also represents the will of people of the society. This article will emphasize the importance and need for the existence of capital punishment and the researcher has researched the juxtaposition of capital punishment and other restorative forms of punishment.

The stigma attached to capital punishment

The capital punishment is often condemned with the contention that it infringes the most embraced fundamental right bestowed in the constitution of India which is right to life. It is been contended that every human life is valuable and the sanctity of human life is sacrosanct that even the state has no right to take a life of human being regardless of whatever a person has done, but let’s not carry on with the idea that the notion of capital punishment offends the sanctity of life, it has roots in ancient texts like Capital punishment is allowed under Hindu tradition. Lord Rama is the embodiment of dharma, yet he killed King Bali, who had stolen his own brother’s wife[3]. In Bhagwad Gita it is supported that a murderer should be condemned to death so that in his next life he will not have to suffer for the great sin he has committed[4]. Also in the Vishnu Smriti, an ancient law book of the Hindus[5], It is stated that “Great criminals should all be put to death… Let the king put to death those who forge royal edicts”. Also in Islam to it is stated that the Qur’an mandates that everyone has a right to life unless a court of law demands to kill: “Nor take life which Allah has made sacred – except for just cause.”[6]

Further in the  dimension  of jurisprudence, there are two theories which bolster the validity of capital punishment they are:

• Retributive theory of punishment: The most classic form of retributivism is derived in the Code of Hammurabi’s lex talionis, which stands for ‘an eye for an eye and a tooth for a tooth’. Though this notion is not stringently followed anywhere in the world anymore the particular concept somewhat gives justification for the validity of capital punishment.

Hegel gave his theory in the early nineteenth century that the idea of punishment is to restore balance in the world by punishing the offender in the same way[7]. According to him, the criminal disregards the victim’s rights and his value of life, while committing a crime. If we leave the crime unpunished, a wrong and injustice will spread in society. But by punishing the criminal, the status quo ante crime is restored. The following view was supported by  Hampton who said that by the very act of commission of a crime, the criminal fails to respect the victim’s value as a human being. Retributive punishment vindicates “the value of victim denied by the wrongdoer’s action through the construction of an event that not only repudiates the action’s message of superiority over the victim but does so in a way that confirms them as equal.”[8]

In the views of H.L.A Hart, punishment should not be for the sake of denunciation only but an appropriate or deserved punishment does serve as a denunciation. He further elaborated that, we do not live in a society in order to condemn though we may condemn it in order to live. Morris opined that by punishing wrongdoers every individual gets the education about the particular significance of the evil underlying offences and the degree of seriousness and understands what are actions that are off-limits. Hampton gave his views that punishment represents the suffering and agony inflicted upon the victim and hence by giving equal punishment to the offender sets an example about the immorality of the action.

The Supreme Court in the Dhananjoy Chatterjee[9] the case held that appropriate punishment is the manner in which the courts respond to society’s cry for justice and that justice demands the imposition of punishment befitting the crime to reflect public abhorrence.

Hence it can be said with the increasing crime rates in India with the increase in the magnitude of brutality of crimes, it is high time for the legislators to make punishment which severe enough to discourage criminal minds, for example, while considering the increase in rapes and sexual misconduct with women especially there is upheaval in the rapes of minors, the state of Madhya Pradesh has included the option of giving death penalty in cases of rape of minor child. Given the current crime rate in the currently certainly now is not the right time to scrap off capital punishment.

• Deterrent Theory of punishment: Deterrent theory of punishment basically states that when a crime is committed, punishment must be adequate enough given nature of crime but sometimes the justice speaks in ways to send strong message to the society that some actions are prohibited and if a person commits it while discarding the law of the land the repercussions can be devastating. Basically, the deterrent theory states that punishment should be of a type that can create deterrence in the society regarding the commission of that particular prohibited act of crime. It can be said that capital punishment also fulfils the purpose of creating deterrence in society.

Legal Aspect of capital punishment

As been discussed above the validity of capital punishment faces the biggest challenge that it is in violation of the right to life, the very fulmination against capital punishment begins with this contention. But if we scrupulously examine article 21 of constitution of India or any other fundamental rights bestowed in the constitution it can be undoubtedly concluded that not a single fundamental right is absolute, everything in the current world is so co-related to each other that no right can be independent and absolute, they are subjected to the law of the land and the will of the state which serves the greater purpose of maintaining order in the society. Now article 21 of the constitution of India states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” So technically it can be said if capital punishment is part of our legislation and our justice system then it comes under the purview of procedure established by law, hence technically there is no violation of article 21 by the existence of capital punishment.

Judiciary has also reiterated  the need for having capital punishment as an option, In Jagmohan Singh vs. State of Uttar Pradesh[10], the five-judge bench of the Supreme Court, by a unanimous verdict, upheld the constitutional validity of the death penalty held that capital punishment is not violative of Articles 14, 19 and 21 and. In this case, the validity of the death sentence was challenged on the ground that it was violative of Articles 19 and 21 because it did not provide any procedure. The Supreme Court held that the choice of death sentence is done in accordance with the procedure established by law. It was observed that the judge makes the choice between a capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during a trial.

The question was again considered in Bachan Singh vs. State of Punjab[11] in which by a majority of 4 to 1 (Bhagwati J.dissenting). It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases.

Hence the supreme court though limited and confined the principle of capital punishment but it never ordered a blanket ban on its practice and the rationale behind keeping capital punishment in the legal system is been very well explained in the above two judgments of the supreme court of India. The Judges are always very pedantic before awarding capital punishment. Even the highest court of India agrees with the fact that some acts are so wicked that capital punishment becomes worth giving. 

In the Indian penal code, a death sentence can be awarded in various offenses like criminal conspiracy, murder, waging war against the government, abetment of mutiny, dacoity with murder, and anti-terrorism.

Besides the Indian Penal Code, a series of other legislation was also enacted by the Parliament of India that has provisions for the death penalty. Like in Sati’s practice in which the bride used to get burned after the demise of her husband. That particular practice was epidemic in a particular community of India once upon a time. The Commission of Sati (Prevention) Act, 1987 Part. II, Section 4(1), if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death[12].

In recent years, the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities[13].On 3 February 2013, after witnessing the massive public outcry over a brutal gang rape in Delhi, the Government of India passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a “persistent vegetative state”[14].The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013

One of the remedies against capital punishment is given under Articles 72 and 161 of the Constitution of India, the President, and Governors, have the power “to grant pardons, reprieves, respites or remissions of capital punishment”. There are many mercy petitions filed by the offenders for their offense to the president or governor. That is known as the pardoning power of the president or governor.

Need and importance of capital Punishment

The researcher seeks to establish the fact that there is a need to keep capital punishment in the legal system because its benefits outweigh its criticizing contentions. There are various reasons to keep capital punishment in the justice system like:-

• Deterrence Factor: From time to time this assertion has become a matter of debate, some analyst believe that capital punishment does discourage a person from committing a vile act like Michael Summers, Ph.D., MBA, Professor of Management Science at Pepperdine University, wrote in his report:

“Our recent research shows that each execution carried out is correlated with about 74 fewer murders the following year. The study examined the relationship between the number of executions and the number of murders in the U.S. for the 26-year period from 1979 to 2004, using data from publicly available FBI sources. There seems to be an obvious negative correlation in that when executions increase, murders decrease, and when executions decrease, murders increase”[15].

Similarly, Paul H. Rubin, Ph.D., Professor of Economics at Emory University, wrote in his report[16] that there is a relation between capital punishment and homicide and he also approved the fact that capital punishment does have a deterrent effect on society.

while some assert that capital punishment has no effect over the malice intent of a person whatsoever.

Nevertheless the fact that the death penalty discourages people is not a scientifically proven fact but one cannot also emphatically disregard the possibility of the death penalty’s deterrence effect. If a person intends to kill, not out of some degree of temporary insanity or driven by extreme emotion, nothing is a deterrent, but in other circumstances, there is the possibility that fear of death might change a person’s mind. One of the reasons behind it is that if we look into the human instincts and psychology it is confirmed that the fear of death is in our human nature, it can encourage a person to do something while it can refrain a person’s conscience too from committing any act. It can be said undoubtedly that fear of death is one of the most powerful impulses in the human body.

• Prevention of Recidivism: Some people are beyond repair due to there innate sense of wickedness. Recidivism is the most dangerous form of criminal activity. Repeated offenses indicate a reluctance to face socially useful lives. When a person commits a crime it becomes the duty of the state not only to bring justice to the victim but also to eliminate the factors which are a potential threat to the society. And it should also be noted that criminals with demented personalities can influence or brainwash other inmates in the jail certainly they are no good to the society.

Further, the threat is not only to the external society from the vicious criminals but a person with high profile criminal background who is looking 20,30 years to life has nothing to lose, Now a deranged person who has an appetite and proclivity for killing is a threat to other inmates too and are numbers of incidents of contract killing inside jails, mostly some under trail criminal who can reveal the identity of others also by paying to criminals who are facing life sentences. So the criminals who are facing a lifetime in jail becomes a medium to spread crime inside jails, no good can come out some human beings to society.

• Help to the police: Plea bargaining is used in most countries. It’s the process through which a criminal gets a reduced sentence in exchange for providing help to the police. It is one of the most effective methods to glean information and gathering evidence for other co-offenders. Where the possible sentence is death, the prisoner has the strongest possible incentive to try to get their sentence reduced, even to life imprisonment without the possibility of parole, and it’s argued that capital punishment, therefore, gives a useful tool to the police. So we can say the fear of death due to the probability of capital punishment is can help in such ways. This is a very feeble justification for capital punishment and is rather similar to arguments that torture is justified because it would be a useful policy tool.

Restorative reforms

Restorative reform is a new concept in the justice system, It is a brainchild based on rehabilitation of the offender as well as the victim together. Restorative reforms emphasize the process of mediation between the offender and victim In this system, instead of any punishment being served to the offender. The victim, offender, and the community participate together in a process of restitution. The offender takes responsibility for his offense and he gets encouraged by the community to overcome the damage inflicted by him upon the victim. Hence, the idea of punishment is completely discarded and is thus opposite to the idea of retributivists. Now such a system becomes redundant when there is a murder or bigger heinous crimes in which there is victim left for any rehabilitation and restitution.

It must be noted that the theory of retribution cannot be applied in all cases. The notion of proportionality in the retributive system of justice has some pros and cons. However, in many cases like when a juvenile is an offender, the gravity of punishment must be considered assiduously. Hence, a lenient and reformative system of punishment should be observed in such cases.

Hence it can be ascertained that the application of restorative reforms and application of capital punishments are mutually exclusive, one cannot apply restorative reforms in crimes which leads to the possibility of capital punishment and vice versa.

Conclusion

India is a country with a colossal population and there is not much indication of abatement in the crime rate. Given the current scenario of Indian society we are witnessing the audacity of mobs killing in the name of cow protection and other trivial reasons, In villages, adults get beheaded in the name of honor killing, Rapes and other crimes of passion are becoming epidemic and what not. The research wants to assert the fact that though the restorative reforms are an effective way of rehabilitation, it is no replacement of capital punishment and the purpose which is fulfilled by keeping capital punishment in the justice system. Also, the judges who order the capital punishment are very pedantic and scrupulous while observing the circumstances and other factors regarding a crime, the courts seldom give capital punish to a convict and further we have a long justice system to seek vindication with several appellate courts the possibility of an innocent being executed gets negated.

To quote  John McAdams[17]: “If we execute murderers and there is, in fact, no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would, in fact, have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.”

Capital punishment plays a vital role in delivering justice and it can also be considered as a proactive measure in mitigating the crime rate of the country. We often see in a number of movies in which the protagonist seeks revenge upon the villain by killing to avenge his family or friend and all of us embrace that moment without anyone’s objection towards it because it reflects as a society who we are it feels like justice. And it is the accepted notion in the society of India that if a person commits a vile, despicable act he has to bear the brunt of it and face the consequences of it. The axiom that Human life is precious and valuable undoubtedly correct but there is a certain exception too.

Endnotes

[1] General Assembly GA/10678 Sixty-second General Assembly Plenary 76th & 77th Meetings”. ANNEX VI. Retrieved 30 July 2013

[2] General Assembly GA/11331, Sixty-seventh General Assembly Plenary 60th Meeting”. 20 December 2012. ANNEX XIII. Retrieved 30 July 2013

[3] Parmatmananda Saraswati, Co-ordinator of the Hindu Dharma Acharya Sabha, in an Oct./Nov./Dec. 2006 article “Capital Punishment: Time to Abandon It?” published in Hinduism Today

[4] Srila Prabhupada, founder of the International Society for Krishna Consciousness (ISKCON), also known as the Hare Krishna Movement, in his 1968 book Bhagavad-Gita

[5] translated by Julius Jolly and printed in 1880 as the seventh volume of the Sacred Books of the East collection

[6] ABDULLAH YUSUF ‘AL1, THE MEANING OF THE HOLY QUR’AN 17:33 ( 1 1 1ed. 2004) (1425

A.H.).

[7] Hegel, Philosophy of Right (1st, Dyde, 1952) 100

[8] Hampton 1992: 1677

[9] Dhananjoy Chatterjee v State of West Bengal 1994 SCR (1) 37

[10] Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947

[11] Bachan Singh vs. State of Punjab, A.I.R. 1980, S.C 898.

[12] “The Commission of Sati (Prevention) Act, 1987”. PART II, Punishment for offenses relating to Sati. Archived from the original on 25 August 2013. Retrieved 30 July 2013

[13] Majumder, Sanjoy. “India and the death penalty.” BBC News 4 August 2005

[14] “BBC News – India president approves tough rape laws”. Bbc.co.uk. 4 February 2013. Retrieved 23 April 2013.

[15] Nov. 2, 2007 article “Capital Punishment Works” in the Wall Street Journal

[16] Feb. 1, 2006 testimony “Statistical Evidence on Capital Punishment and the Deterrence of Homicide” before the US Senate Judiciary Committee on the Constitution, Civil Rights, and Property Rights.

[17] Marquette University, Department of Political Science

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