This essay was written as part of a course I took on Political Philosophy at IIT Kanpur. Here, I examine whether death penalty is justified as a mode of punishment or not, specifically in the Indian context.
Capital punishment (or death penalty) has been a matter of debate for over centuries now. As of November 2015, 140 i.e nearly two-thirds of the countries around the world have abolished the death penalty in law or practice. India is not one of them. The execution of Yakub Memon on July 30 2015, convicted for his role in 1993 Mumbai blasts has spurred the debate yet again. After the hanging of Dhananjay Chatterjee in 2004, the watchman who was convicted of rape and murder of a teenager, India maintained an informal moratorium for eight years. It was lifted with the hanging of Ajmal Kasab in 2012 — the lone surviving terrorist from the 2008 Mumbai Attacks. Following it was execution of Afzal Guru and then, Yakub Memon. According to data compiled by the NGO Amnesty International, Indian courts handed down at least 64 death sentences in 2014, but no executions took place.
Under the Indian Penal Code, grave offences such as murder, rape with injuries (that may lead to death of victim), repeat offender, waging war against the state, indulging in terrorist activities causing death are some of the major crimes punishable with death. India prescribes the “rarest of the rare” principle in handing out death penalty, following the ruling in its 1980 Bachan Singh vs State of Punjab case. However, there are no clear guidelines on what constitutes ‘rarest of the rare’ and is subject to the court’s discretion, which as argued, could lead to arbitrariness of the decision.
India needs to reconsider its stance on death penalty and question if it should join the abolitionist movement, which we have rejected in the past. In this paper, we examine whether death penalty is justified as a mode of punishment or not, specifically in the Indian context.
2. The purpose of punishment
Philosophical reflection brings about five major purposes to punish a criminal. First, incapacitation, which positively prevents a future offence by imprisoning the person and physically alienating the offender from the society. Second, deterrence, which aims to curb crime by threatening the potential offender by fear of punishment. Third, restitution, which requires the offender to take some action to at least partially return the victim to the state which was so before harm was incurred upon. Fourth, retribution, which states that the society is entitled to proportionately harm the person who harms the society in first place. Fifth, rehabilitation, where punishment serves the purpose to transform and change the offender to become a better citizen.
Though it is arguable, in principle, we do agree that the guilty deserves to be punished. The degree and mode of punishment, for grave offences, is the bone of contention here. This raises two questions: One, whether death penalty is in itself justified as a form of punishment or not. Second, if death penalty serves the purpose of punishment better than other forms, say life imprisonment.
For the first question, abolitionists respond by claiming that every citizen has an inalienable right to life and the state can’t revoke it, under any circumstances whatsoever. The answer to this is subjective to moral conscience of the society at large, which is difficult to quantify at any given point in time. So we focus on the second question, though we do revisit morality of the punishment when considering retributive arguments.
3. Retribution and Deterrence
Capital punishment rules out the possibility of rehabilitation and restitution. It clearly satisfies incapacitation, for execution of the individual leaves no space for the offender to commit a crime again. But so does life imprisonment, which in fact, also has space for rehabilitation. Essentially, the debate on abolishment, in terms of the purpose of punishment, centers around the remaining two aspects: retribution and deterrence. Deterrence is “consequentialist”, as it views the punishment to be justified if it achieves the desired end goal — here, to reduce crime in general and homicide in particular. Retribution is “deontological”, where the justification is not based on consequences, but on the intrinsic moral worth of the action.
The retributive theory stems in the principle — “an eye for an eye”. For the most heinous crimes, the offender deserves the worst form of punishment, which in existing legal framework, is death penalty. The wrongdoer should pay a price equivalent to the harm committed, in order to maintain balance of the social order. Immanuel Kant states — “A society that is not willing to demand a life of somebody who has taken somebody else’s life is simply immoral.” However, we believe that standards of a mature society demands a more measured response, which is not purely based on emotion. Killing the offender would continue the cycle of violence. The system should lead us to higher faculties, where we value and respect the value of human life, irrespective of crime committed by the person. In light of these arguments, though retribution has an important role to play in punishment, we don’t think that retributive arguments should form the basis of capital punishment; and should not be reduced to ‘vengeance’.
Does capital punishment lead to deterrence? As Sir James Fitzjames Stephen puts it: “Some men, probably, abstain from murder because they fear that if they committed murder they would be hanged. Hundreds of thousands abstain from it because they regard it with horror. One great reason why they regard it with horror is that murderers are hanged.” Well, we have to regard the statement as a mere assumption for the question of deterrence is empirical in nature. In 1973, Isaac Ehrlich employed an economic analysis to conclude that on an average, each execution deterred eight murders. However, the approach has been discredited over time. On the other hand, some abolitionists state, with numbers, that homicide rate has fallen in countries with no death penalty. This information is inappropriate for the rate could have been even lower with death penalty — so no conclusions should be drawn from this data. Well, it is widely accepted that there is no conclusive study to show that capital punishment is a deterrent. This does call for a large scale empirical study for some conclusive results — either to establish or disestablish the claim. But for now, we have to agree that deterrence doesn’t stand as a justified argument in favor of death penalty.
In line with arguments stated above, death penalty seems no better than life imprisonment to serve the purpose of punishment, given that we are disregarding retribution as the primary motive. We agree with what the American Civil Liberties Union stated: “The facts prove that life in prison without the possibility of parole is swift, severe, and certain punishment. The death penalty costs more, delivers less, and puts innocent lives at risk. Life without parole provides justice to survivors of murder victims and allows more resources to be invested into solving other murders and preventing violence. Sentencing people to die in prison is the sensible alternative for public safety and murder victims’ families.”
4. Problems with the legal system
Numerous committee reports as well as judgments of the Supreme Court have recognized that the administration of criminal justice in the country is in deep crisis. The 262nd report of the Law Commission mentions lack of resources, outdated modes of investigation, overstretched police force, ineffective prosecution, and poor legal aid as some of the problems besetting the system. The third report of the National Police Commission, suggested that, by and large, nearly 60 per cent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 per cent of the expenditure of the jails. Data collected by the Centre on the Death Penalty at the National Law University, Delhi, shows that in last 15 years, trial courts in India sentenced 1800 people to death — despite the “rarest of the rare” doctrine — but only 5% were confirmed by the Supreme Court. Surprisingly, a third of them were acquitted as the legal proceedings went on. These statistics pose questions on the legal system itself — whether it is capable enough to discharge death penalty or not. It doesn’t seem so.
Adrain Zuckerman writes: “The willingness of the public to accept the authority of the criminal court as a dispenser of punishment depends on the extent to which public believes in the moral legitimacy of the system. The morality or fairness of a system of adjudication hinges on many factors, such as the impartiality and incorruptibility of the judiciary. Amongst these must also be numbered a publicly acceptable judicial attitude towards breaches of law. A judicial community that is seen to condone, or even encourage violations of the law can hardly demand compliance of its own edict.”
Further, the observations made by Justice P N Bhagwati in his dissent of the Bachan Singh’s case should be noted. Firstly, he states, that it is impossible to eliminate the chance of judicial error. Secondly, that the death penalty strikes mostly against the poor and deprived sections of society. For death penalty is irrevocable, the first argument calls for serious attention. In an appeal to the President of India — Pranab Mukherjee — thirteen former judges mentioned that two prisoners who had been wrongly sentenced to death — Ravji Rao and Surja Ram — had been executed on May 4, 1996, and April 7, 1997, respectively, due to flawed judgments. Professor Ernest van den Haag argues, that despite precautions, nearly all human activities, such as trucking, lighting, or construction, cost the lives of some innocent bystanders. But for we do not give up these activities — because the advantages, moral or material, outweigh the unintended losses — and so should be the case for capital punishment. We disagree with the claim for wrongful executions are a preventable risk. Substituting death penalty with life imprisonment, not only meets the purpose of punishment, but also prevents the society from committing the crime of executing the innocent.
As for the second argument of Justice Bhagwati, a study by students of the National Law University, Delhi, the first of its kind, based on interviews with 373 convicts on death row, reveals that 75% of them are economically poor, dalits and backward castes or religious minorities. Well, we must take note of Professor Haag’s argument here, which aptly mentions that maldistribution of any punishment among those who deserve it is irrelevant to its justice or morality. Whether or not others who deserved the same punishment, irrespective of the social group they belong to, have avoided execution, is irrelevant. However, the question here is not about equality being more important than justice or vice versa — a debate that would follow with Haag’s argument; but that those from deprived sections do not have appropriate resources and means to mount a defence against the death penalty — which perhaps might lead to a faulty sentence.
We support the abolishment of death penalty not only on moral grounds, but because of the inconsistencies in the political economy of crime and punishment. Even though there are cases where the crime of the offender is well established, and as some may say, is deemed enough to be hanged, death penalty should be abolished in practice to ensure that the innocent or a reformed offender is not executed. Death penalty serves no better than life imprisonment as a mode of punishment; rather it completely does away with the restorative and rehabilitative aspects of justice. Need of the hour is to focus on problems that have crippled the justice system such as poor investigation and prevention of crime. Mr. Shashi Tharoor, Member of Parliament, in an interview, makes an important statement: “It is important that we identify alternative forms of punishment and develop a suitable system for rehabilitating hardened criminals and ensuring that they reintegrate into society as responsible citizens. This, of course, puts a greater onus on the government and lawmakers. But let us not take the easy way out by silencing the criminal forever.” The Law Commission of India, in its 262nd report, recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war. We hope that India soon joins the abolitionist nations and does away with death penalty in interest of the society.
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- Anand, Utkarsh. “Explained: In the Supreme Court, Some Questions of Life and Death.” Indian Express 27 May 2015: n. pag. Web. 20 Oct. 2015.
- S., Rukmini. “Trial Courts Give Death Freely, but Just 5% Confirmed.” The Hindu 20 July 2015: n. pag. Web. 5 Nov. 2015.
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Originally published at samarthbansal.com on February 19, 2016.