Capital Punishment: Should it be retained or abolished

Recent death penalty to all the four accused in the 16^th December 2012 gang rape case has again raised the debate about the death penalty. Amnesty International, in its press release on 13^th September 2013, while condemning the crime committed by these people stated that death penalty is not the answer. It further stated that death penalty is not a solution of the problem but only short term revenge and also that death penalty is not a deterrent for any crime. The present article tries to present an analysis of the subject.

            Punishment can be defined as suffering, loss, pain or penalty inflicted upon an individual by a legal authority, as a consequence of certain acts of commission and omission. Punishment has two aspects. First is ‘utilitarian’ in which punishment is used as a tool for increasing happiness of the society by pointing out to the criminal the wrongfulness of his crime as well presenting the punishment as a deterrent to both the criminal and the society for not repeating the crime. Second aspect is ‘retributive’ which serves as a consolation to the aggrieved or his kin that the criminal has been adequately punished.  Capital punishment is the ultimate punishment in which life of a criminal is taken away by a legal authority under a process established by the law.

International Scenario

            Although, UN “Universal Declaration of Human Rights” does not say anything explicitly about death penalty, Article 5 of the said declaration prohibits torture or cruel, inhuman or degrading treatment or punishment.  Activists have been arguing that death penalty is cruel and inhuman and hence covered under this article. The Second Optional Protocol to the International Covenant on Civil and Political Rights, adopted by the UN General Assembly in 1989, provides for the total abolition of the death penalty except in times of war or imminent threat of war. Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms ["European Convention on Human Rights"] 1982 and The Protocol to the American Convention on Human Rights to Abolish the Death Penalty, 1990 provide for abolishing death penalties except in times of war.  Protocol No. 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 2002, provides for the abolition of the death penalty in all circumstances, including time of war or of imminent threat of war. As per report of Amnesty International for year 2012, 97 countries have abolished capital punishment completely, while 8 have retained it only in exceptional circumstances such as military law and wartime crimes. 35 countries have abolished it in practice as they are believed to have a policy or practice of not executing people. 58 countries have retained the penalty for certain crimes like murder.

Indian Legal position

Article 21 of the Constitution of India provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Thus, power to award capital punishment is inherent in the Constitution. However, judicial pronouncements state that the penalty has to be imposed only in special circumstances. In Bachan Singh Vs. State of Punjab, the Supreme Court held that punishment was to be only in the “rarest of rare” cases. However, defining ‘rarest of rare’ has been left to the discretion of the Court though some guidelines were set which included consideration of both the aggravating and mitigating factors leading to the crime. In Machchi Singh vs. State of Punjab, the Apex Court, while accepting that the death penalty can be imposed in some cases, has opined that it should not be so in every case but only in exceptional circumstances. However, the definition of the ‘rarest of rare’ has differed from case to case.

Arguments for abolition

       Arguments for abolition of death penalty have centred on human rights and wrongful executions i.e. those cases in which there had been an error in handing out this punishment. Following arguments have been put forward for abolishing death penalty:

• Capital punishment is the ultimate denial of human rights and right to life.
• It is cruel, inhuman and degrading punishment in whatever form it is given. Like torture, it is extreme physical and mental assault on an individual and cannot be justified.
• The penalty is discriminatory and is used disproportionately against deprived and marginalized sections of the society as well as for eliminating political opponents.
• The penalty cannot be reversed. As there is always a possibility of error in the judicial process, there is always a possibility of execution of an innocent.
• It denies the criminal an opportunity to amend himself and also denies possibility of rehabilitation and reconciliation.
• It is a symptom of culture of violence and not a solution to it.
• There are no clear-cut evidences showing that death penalty acts as a deterrent.  Most of the murders are committed either in a state of rage or under the belief that the criminal would escape from the law and the thought of deterrent does not come to the mind of criminal while committing the murder.  

Arguments for retention

• Arguments for abolishing death have questioned the state’s authority to take the life of the person; right of the State has being the primary target of such activism. However, most of the crimes are against individuals which due to legal procedure are taken up by the State. The demand for abolition of death penalty ignores the hardships and suffering of the victim.
• Death penalty, in no way means denying a fair trial to any accused, which is a must in every judicial system.
• Right to life in respect of a criminal has to be balanced with the right of the victim to get appropriate justice.
• In most of the cases of death penalty, the life of victim has been taken away by the criminal. In a number of cases, this is without any provocation or excuse. Protecting the life of a criminal in such cases would place him at an advantageous position as compared to the victim. It would appear that the state or the law, while failing to save an innocent citizen is saving the criminal.
• Since ancient ages   punishment has been used as a deterrent for crime. Conclusive studies are lacking because such studies centre on the criminals who have committed the crime. The studies do not consider those people who have deterred from crime due to fear of punishment.
• An important reason for the death penalty not being a sufficient deterrent is that it is used very sparingly. In India, Ajmal Kasaab was executed in 2012 and and Afzal Guru 2013. Before them execution the last person to be executed was Dhananjoy Chaterjee in 2004 who was convicted in Hetal Parekh rape and murder case. There were no executions in the years in between although combined number of heinous crimes during these years was in lakhs. In 2012 alone there were more than 34000 murders but total number of death penalties awarded during the year was about 78. These penalties are awarded by trial courts which slowly get diluted as the convict appeals in higher courts. Actual execution during the year was only one that of Ajmal Kasaab on 21^st November 2012.  The number of actual executions is too miniscule to act as a potential deterrent.
• It has been criticized as a symptom of violence but it comes only into play after an act of extreme violence by the criminal which should justifiably be punished.
• Abolition of death penalty has an inherent danger of compassion taking a leading role in the entire criminal justice. This would tilt the balance in favour of the criminal. While on one hand this dilutes the deterrent aspect of criminal justice, on the other, the victim or his relatives may resort to punishing the criminal themselves by taking the law into their own hands.

Should India retain or abolish capital punishment?

            Continuation or retention of death penalty in a country depends on the circumstances of the country. As per data available with National Crime Records Bureau, number of total crimes registered under IPC has increased from 6, 01,964 in 1953 to 23,87,188 in 2012, thereby showing an increase of about 296%. Similarly, number of murders has increased from 9802 in 1953 to 34,434 in 2012 and showing an increase of about 251%. However, highest increase has been in the cases of rape. NCRB started collecting data about this crime since 1971 when the number was 2487. In 2012, the figure is 24, 293, thereby showing an increase of 902%.

One reason that has often been attributed to the spiraling crime is that our law is soft on criminals. The stress has been more on the reforming the criminal rather than punishing the criminal. This aspect adversely affects the deterrent effect of the punishment. The data from National Crime Record Bureau does not make out a case for abolition of death penalty. On contrary, it reflects the need to be stricter in awarding the penalty as well as considering the option of making more crimes punishable by death. First right to a life of dignity must go to a law abiding citizen and right to life of the innocent must take precedence over the right to life of a criminal. If otherwise, it would render the state useless and would give rise to Vigilante justice in which individuals would themselves take upon the responsibility of dispensing criminal justice.