This article is written by Varun Ranganathan studying at Government Law College, Coimbatore, pursuing a Paralegal Associate Diploma at Lawsikho. This article has been edited by Ojuswi (Associate, Lawsikho).
This article has been published by Sneha Mahawar.
The Judiciary in pursuance to maintain law and order in the state and enforcing the law of the land adopts the penal provisions. Capital Punishment is the highest and most controversial among the other penal provisions prescribed by the law. In India, capital punishment is still prevalent though is granted particularly to certain heinous offences and brutal crimes, yet paves the way to a long-standing, frequently debated question regarding its justification.
Human beings are the greatest achievement of the evolution process so far. Similar to the evolution of human beings, the laws invented by them are also being evolved along with them over time. So, whether to deprive the life of the ‘greatest achievement’ is justifiable simply because it is permissible by law which in itself is subject to change?
The object of this article is:
● To comprehensively analyse the death penalty.
● To critically advocate against the death penalty for its inconsistency with the principles of morality and laws of human rights.
Meaning and definition of capital punishment
The term “Capital Punishment” stands for the most severe form of punishment. It is the punishment that is to be awarded for the most heinous, grievous and detestable crimes against humanity. While the definition and extent of such crimes vary from country to country, state to state and age to age, the implication of capital punishment has always been the death sentence. By common usage in jurisprudence, criminology and penology, a capital sentence means a sentence of death.
The Britannica Dictionary defines “Capital Punishment” as:
punishment by death;
the practice of killing people as punishment for serious crimes.
Historical background of capital punishment in India
The practice of sanctioning of death sentence has been a part of the Indian justice system and has a history since time immemorial. However, the references to practice can be traced back to the texts of The Manusmriti, an ancient source of law wherein:
“The capital punishment was sanctioned for theft of more than 10 Khumbhas”
– Manu 8, verse 320
The death penalty is also referenced in the ancient epic of Mahabharata when the Pandavas decided that the death sentence was too kind for the heinous massacre committed by Ashwatthama. In Tamil Nadu, During the reign of Cholas, the king Ellalan who is portrayed as the symbol of unprejudiced justice was awarded the title of “Manu Nidhi Cholan” (The Chola who follows justice) for executing his own son to grant justice to a cow. Only after the establishment of prison systems capital punishment was considered to be an alternative form of punishment.
The long history of capital punishment has undergone several changes throughout the course of history from being the primary penalty to a punishment granted particularly for the rarest of rare cases. The paradigm has slowly shifted towards liberalizing its usage. Now, it is high time to do away with its existence.
The Intention behind the death penalty – justifiable?
The intents to penalize with death are three folded:
Preventive approach wherein the offender is punished to death so that crimes can be prevented from occurring any further
The intent of such a preventive approach may be genuine but that does not justify the method in which it is approached. Crimes ought not to be prevented by executing the offenders but rather by obliterating the root cause which is the intention to cause such crime.
Deterrent approach, which imposes severe penalties to create a deterrent over other subjects
The fear-causing intent might have been well suited during the times of monarchy but in recent years, democracy is the form of government that prevails. This approach contravenes the very principles of democracy as much as it contravenes morality. In other words, people are the ultimate authority in a democratic nation; they should not be controlled with a deterrent effect.
Retributive approach, which inflicts the wrongdoer the pain which is similar to his crime.
The approach perse is vindictive in nature. This approach instead of paving the way to harmony in society leads to an autocratic state tormenting its subjects.
Capital punishment in India – The doctrine of “rarest of rare cases”
The sentence of death is provided for various offences under distinct sections, nevertheless, the convention of sanctioning death as a punishment is not applied as a general rule but only to “the rarest of rare cases”.
The Doctrine of “rarest of rare case” was first proposed in the case of Bachan Singh V State of Punjab, the supreme court held that the death penalty should be awarded only in the rarest of rare cases. This perspective of the Supreme Court was welcomed as it aimed at decreasing the use of Capital Punishment. Although this doctrine has significantly restricted the usage of the death sentence, the complication in this doctrine is the term “rarest of rare case” is not defined by the legislation or The Supreme court. The definition of a rule of law removes the ambiguity and constructs it with certainty, which becomes inevitable in matters relating to literally the grave punishment as it is certainly not revocable and such a definition is almost unachievable and impractical.
Nations across the world are leaning toward the leniency of sanctioning the death penalty for at least the last decade. At the end of 2014, 98 countries abrogated the death penalty; 35 countries abolished such practices and unexpectedly 58 countries that retain the penalty of death have not granted it in the recent past.
The International Non- Governmental Organisation Amnesty International holds that the death penalty breaches human rights, in particular the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment which are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948.
The second optional protocol to the international covenant on civil and political rights is aiming to abolish the death penalty “believing that abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights.”
The member states of the Council of Europe by virtue of ratifying the protocol to the convention for the protection of Human Rights and Fundamental freedoms have agreed to the abolition of the death penalty.
Arguments against capital punishment
The opposition against capital punishment can be categorized on moral, practical and constitutional grounds:
Value of human life
Human Life deserves to be esteemed. Human life takes around 9 months merely to be created and many more years to attain complete growth. Such life ought not to be taken away within moments, such an act is nothing but a disregard for the value of the precious life. In fact, Human Life is extremely valuable even if the offender with the worst conduct does not deserve to be deprived of his life for all or any crime that he has committed.
Retribution is immoral
Retribution is not an ideal way of punishing an offender and is purely a sanitised form of vengeance. The concept of retribution obliterates the object of establishing justice by exactly doing the act of killing through the law which is not supposed to be done because it is prohibited by law. Following retribution as a part of a nation’s justice system sows the seeds of revenge in the minds of the subjects and further leads to more harm than good by increasing the number of crimes committed.
Cruel and inhumane
Capital punishment regardless deserving or not causes enormous pain and is a cruel, inhumane and tormenting act that not only inflicts pain on the offender but also on the near and dear ones of the offender.
The most obvious and common argument against the death penalty is its irreversible nature. Every other punishment, if it comes to light that such punishment was granted out by mistake, can be reversed and/or at least compensated for any damages suffered. Though the advanced Justice system would strive towards not letting such an event occur, there exists a possibility of executing an innocent person which cannot and must not be ruled out.
The principle of the state is to comply with its obligations in the least invasive and harmful way possible. Capital punishment is more often associated with an act of violence. The justice system involving capital punishment as a remedy for preventing criminal violence ultimately makes the law dependent on grounds of violence which is unacceptable.
Capital punishment is not the exclusive form of punishment available to establish an orderly society. In fact, it can be substituted with other effective punishments such as life imprisonment, rigorous imprisonment, etc.
Right to Life
The Right to Life under the constitution must be provided unconditionally and absolutely and must not be restricted by procedures established by law because the right to life is not merely a constitutional right vested by the sovereign over its subject but it is an inherent and inalienable right vested to all humans irrespective of their conduct.
Justice. V. R. Krishna Iyer in the case of Rajendra Prasad vs State of Uttar Pradesh states that:
“The special reason must relate, not to the crime but to the criminal. The crime may be shocking and yet the criminal may not deserve the Death Penalty”.
Deterrence is not consistent with the ideology of democracy
The notion of controlling the subjects of a state from committing a crime by way of causing a deterrent effect in a democratic state is self-contradictory as in a democratic state the people are the ultimate authority and the idea to achieve a crimeless society by threatening the authority is not ideal. This ideology impairs the relationship between the state and its subjects.
“Power is of two kinds. One is obtained by the fear of punishment and the other by acts of love. Power based on love is a thousand times more effective and permanent than the one derived from fear of punishment.”
– Mahatma Gandhi.
The deterrent and retributive approach must be replaced with a reformative approach. The sanctions of punishment besides being based on crime must also be based on the reformation of an offender. Life imprisonment and rigorous imprisonment are two of the common substitutes which can be used in lieu of the death penalty for heinous offences. Community service punishment which is to force the offender to work for the public good must be regularised in addition to other forms of punishment. The offender must work for community service during a part of his sentence. The offender must be made aware to realise the consequences of his criminal act instead of making him feel the same pain and suffering for his criminal act as a consequence.
Laws are enacted for the well-being of humans and to improve their quality of life and not to take them away. The belief and practice of “an eye for an eye” theory might have prevented us from visualizing the cruel and inhumane side of capital punishment in the past. But presently, Nations across the world are realizing the ill effects of the death penalty and are abolishing it considering its detrimental effect on humanity. Now it is for us to fight tooth and nail against the concept of “tooth for a tooth” and abolish the condemning act of condemning to death for a better future.
- Subash C Gupta, Capital Punishment In India (1986)
- C K Thakker ‘Takwani’ and M C Thakker, Criminal Procedure (4th Edition, 2014)
- K N Chandrasekharan Pillai, Criminal Procedure (7th Edition, 2021)
- Navin Kumar, Criminal Psychology (1st edition, 2015)
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