Death Penalty Is it ever Justified?

By: Shobhit Batta | October 6, 2014

Every saint has a past and every sinner a future, never write off the man wearing the
criminal attire but remove the dangerous degeneracy in him, restore his retarded human
potential by holistic healing of his fevered, fatigued or frustrated inside and by repairing the
repressive, though hidden, injustice of the social order which is vicariously guilty of the
criminal behaviour of many innocent convicts. Law must rise with life and jurisprudence
responds to humanism.

Krishna Iyer, J.

Ever since there has been crime, there is punishment. It follows that crime is as old as human
kind and justice is as old as civilized society. In primitive societies, when a wrong was done
against an individual he had to resort to self-help and retaliate with vengeance. This was
jungle law which means an eye for an eye and a tooth for a tooth.
Punishment has been a subject of debate among judges, philosophers, academicians, jurists
and advocates for centuries. The recent gangrape of a 23-year old victim in Delhi and the
widespread protests that followed garnered much attention over the issue of Death Penalty.
One of the most contentious legal issues to have arisen in question is in relation to repeated
call for the provision of death penalty in anti-rape laws. After the execution of Ajmal Kasab
and just before the execution of Afzal Guru, respectively the third and fourth executions in
India since 1995, this incident fuelled the debate concerning the sustainability of death
penalty in a democratic state, especially in an era of flooding human rights.

Author is of the view that the objective of punishment should be to bring about moral reform
of the offender. Even if offender commits a crime, he does not cease to be a human being. It
is to be taken into account that he may have committed a crime under circumstances which
might never occur again. A possible objection is that it extends far beyond the field of capital
punishment to many other areas of social life where it may yield results. For example, if
capital punishment is immoral when societal injustices cause murder, the same could be said
of the entire criminal justice system. It can plausibly be argued that the crime in general or at
least certain types of crime are by-products of social injustice.

Death Penalty in India and rarest of rare Doctrine

In India, culpable homicide amounting to murder is at present a crime for which death
penalty may be invoked. Though civilized and restricted in its application, death penalty is
very much alive in India. The capital punishment in India is limited by rarest of rare
doctrine, where the application of the death penalty is restricted to cases wherein the
alternative option is unquestionably foreclosed. The rationale behind the decision is a real
and abiding concern for the dignity of human life postulates resistance to taking a life through
laws instrumentality.

A leading supreme courts judgement which has given birth to the rarest of the rare
doctrine as a major criterion for imposing capital punishment in India is Bachan Singh v.
State of Punjab. With innumerable interpretations and deliberations on various jurisprudential
aspects in the recent past, the provision of capital punishment could be invoked only when
alternative punishment of life imprisonment is unquestionably foreclosed. Although the
sole reason behind the incorporation of this doctrine which designated death penalty as a
punishment for such cases is deterrence of recurrence of such extreme crimes, there have
been no statistical records which show improvements in the rate of such heinous crimes
committed. One cannot appreciate how the concept the most serious offences was chosen
without recalling the situation as regards the extent of abolition of capital punishment at the
time the decision was given. What took the time was the thornier question of whether the
judges should include under the right to life the complete abolition of capital punishment.

Dhannajay Chaterjees execution till date ignites fire as far as the correctness of the
judgement is concerned. The major drawback of death penalty is the irrevocability of the
decision once rendered incorrect. The ramifications caused by it are evident from the case
of Santosh Kumar Satishbhushan Bariyar v. state of Maharashtra in 2009 where Supreme
court has most invariably opined that in order to conceive the appropriateness of applying
capital punishment the terms of (relative) lenient or severe punishment should not be over
looked but should strictly adhered to. Moreover, the social stigma that is attached with the
accused who is granted the death penalty does not leave the world with his last breath but it
still haunts the poor family of the accused long after he has gone. Vindication of the image of
the near ones in the family of the accused is impossible as a result the society never accepts
them and they have to carry on with their cursed lives. Even if the experts are capable of
assessing accurately the possibility of reformation, it does not guarantee the wiping out of
arbitrariness in sentencing, because in the past there have been cases where the court has
disregarded expert opinion and given judgments based on its whims and fancies. This is
because it once again boils down to the personal predilection of the judges who constitute the
bench. This might again lead to the judge-centric sentencing approach, which this Court so
vehemently condemns.

This judgment in Bariyar can be considered as yet another significant step which takes us
closer to the abolition of death penalty. This judgment is a welcome step, which significantly
tries to restrict the sentencing power of the courts, thereby attempting to bend the arc further
towards abolition of death penalty. It does not lay down something very innovative, but
interprets Bachan Singh in a distinct manner- different from the way in which it has been
interpreted by the courts so far. The case of Bariyar is an important step towards the concept
of abolition of death penalty, or at least the minimal use of the same. It divides the test of the
rarest of rare category into two parts, indicating that the prosecution has to first prove that
the case belongs to the rarest of rare category, after which they will also have to provide
clear evidence as to why the accused is not fit for any kind of reformatory and rehabilitation
scheme, thereby showing that the alternative option is foreclosed. In other words, the
prosecution must show that rehabilitation is impossible.
The ultimate victims of the death sentence are not the actual perpetrators of the crime but are
the ones who are economically socially backward, minorities and the weak. The Rajiv
Gandhi assassination case would concretise this view point as after the pronouncement of the
death sentence of Perarivalam who played as the battery for suicide bomber was assaulted
and ill treated so as to make him confess his own crime. The poor languished souls usually
fall prey to such inhuman and utterly ruthless acts of the police and accept the crime which
they have never committed. Not to forget the arbitrary political gurus who have made the
practice of scape goating highly prevalent where the lives of innocent people are sacrificed
in order to safe guard the interests of majority. These politically and socially sickening
policies have made the punishment of death penalty their breeding ground.

The death sentencing policy that is followed by our nation is fatally flawed. This policy is
nothing but a defence kit for the murders committed on behalf of the ruling party in India
who plays a pivotal and the only role in encouraging the heinous and arbitrary death
encounters and extra judicial killings executed by the police. In reaching judgements about
what would be an acceptable use of the death penalty reference would need to be made not
only to changes in the practices of nations as they affected the norms that defined acceptable
forms and levels of state punishments, but also to the development of the concept of human
rights itself. Just as an almost universally agreed norm has developed that juveniles should be
exempted from capital punishment other norms are in process of being established-for
example that where death penalty is enforced it should never be mandatory, allowing
discretion for the circumstances of the case to be considered.

India needs to stand and walk on the two legs of growth and equity and abolish capital
punishment. Our nations death penalty policy enactors undoubtedly need a political will
more than they need anything else. The strongest argument that holds water against granting
of capital punishment is the irreparable consequence of an error in the process of granting
justice. The Indian legal system works on the presumption of innocence in such a scenario
even the thought of executing an innocent person by mistake may override any consideration
in favour of such a punishment. While only four Asian states (Nepal, Bhutan, Cambodia and
Philippines) have so far completely abolished the death penalty, five (Brunei, Laos, Maldives,
Myanmar and Sri Lanka) are now abolitionist de facto. Where abolition has not been
achieved there has been a movement to restrict the number of crimes for which the penalty is
death, to make it discretionary than mandatory, and generally to restrict the number of people
actually executed.
Death penalty, perfectly legal as it may be under Indias laws, even if only in a prescriptive
sense, runs counter to the core objectives of the criminal justice system. Equally, its
application in the rarest of rare cases- as mandated by the Supreme Court-speaks to a
larger, underlying incoherence in Indias penology. Hang the murderers and the rapists and
we will deter all future crime, seems to be the attitude. If the offenders are awarded death
sentence, it would become a model for the country such desperate demands for guillotine
shifts the focus from the far more important considerations: the maintenance of law and order
through better policing, efficient prosecutorial conduct and most important of all the need to
reform the nations prisoners. It has been a daily affair in the legal scenario where the
innocent people are hanged just to give a smooth course to the overeager prosecution who
fabricates charges against these poor victims to buttress their case.

Conclusion

Nearly 138 countries have now abolished or stopped the practice of awarding the death
penalty. In 2007, the United Nations General Assembly adopted a resolution calling upon the
government still practising capital punishment to institute a moratorium. It is high time for
our nation to join the group and put an end to death penalty. Today, we however observe a
worldwide trend towards the abolition of the death penalty: 73 have ratified the Second
Optional Protocol to the International Covenant on Civil and Political Rights aiming at the
abolition of the death penalty and 109 have voted in favour of the third United Nations
Resolution adopted on December 21 2010, calling on states to establish a moratorium on
executions with a view to abolishing the death penalty. At this point it would be an open
question whether capital punishment is needed to deter murder.

The retention of death penalty, even when we stand in the 21st century, is contrary to the trend
in the rest of the world. There has been a growing realization among the international
community regarding the abolition of death penalty. These sentiments were echoed by United
Nations (hereinafter UN) Secretary-General Ban Ki-Moon in 2007 when he stated, I
recognize the growing trend in international law and in national practice towards a phasing
out of the death penalty.

The upshot of the arguments posed in this article is that it is still undecided whether death
penalty given for the crimes works as a deterrence for serious crimes or not. One who is
against it would undoubtedly believe that it serves absolutely no purpose for the hardened
criminals who are remotely afraid of being caught. Death Penalty is nothing but a judicially
and politically influenced assassination committed for the purpose everything other than the
betterment of the society. Death penalty crushes the only indisputable human solidarity- our
solidarity against death. We Indians need to show more solidarity towards life by completing
wiping of the capital punishment.
Topics:Bachan Singh v. State of Punjab Death Penalty Death Penalty in India Justice V.R.Krishna Iyer rarest of rare
Doctrine Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra

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Urvashi Medhakar says:

October 6, 2014 at 11:40 pm

Death sentence is rather a reprieve for the convicts because it is too hard to undergo
life imprisonment till last breath. Of what avail shall be the life behind bars when one
sees no end to his miseries? It is way better to hang him asap than to keep him alive
which is more draconian and heinous. Dont compare your prison system with those
of developed countries. The biggest flaw with Indians is that they try to imitate the
west in all matters without using their own head. What do you give to a convict in
India? What is the period within which the trail is concluded? Here in US, trial ends
in a few weeks or a few months; all convicts are given every facility which is
available to every citizen outside jail. Every day menu for meal is given to every
convict twice a day to choose the branded/packed food! Our homeland security
personnel are not corrupt unlike your police personnel; hence here false convictions
dont take place. No one can influence the judiciary here whereas in your country
judiciary too is corrupt even if you do not like to discuss about it and prefer to keep
your eyes shut!

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