Justice A.P. Shah in an interview with TOI in 2012 said, “India should join the Nations abolishing Death Sentence.” Since then through various legislations India has seen the condition for awarding death penalty in the ‘rarest of the rare’ cases, as established by Supreme Court judgment in the Bachan Singh vs the State of Punjab (1980) expand over a range of crimes; terror activities, murder, rioting with murder, sexual offenses, rape with murder, large scale narcotics trafficking and kidnapping with murder.
Especially the reforms after the brutal gangrape in Delhi, in 2012, leading to the Criminal Law (Amendment Act), 2013 which pacified the demand for harsher punishment and brought offenses such as an acid attack, stalking, and sexual harassment under its purview. In August 2019 the Protection of Children from Sexual Offences Act, 2012 was amended, to allow for the death penalty in case of rape of children younger than 12 years.
When over two-third of the Nation-States have abolished capital punishment either in law or in practice, India not only voted against the United Nations General Assembly draft resolution on the use of the death penalty but also had the highest number of death sentences imposed in the last two decades in 2018. 162 new death penalties were imposed, of which 45 were convicted for murder and 58 for murder involving sexual violence as per the Research by National Law University Delhi, this marked a 50 percent hike from the previous year.
The rise in the figures of the death penalty imposed by the court makes a strong case to analyze the very basic need and purpose of the theory on which Capital Punishment finds its premise and acceptance in society. Capital Punishment is often justified for its consequentialist nature which will ensure deterrence in the future and set a standard against criminal behavior, best simplified through the analogy- one learns not to put their finger in the fire, as the instant consequence is pain. Such a notion of justice is heavily borrowed from Jeremy Bentham’s conceptualization of the maximum good of the maximum number.
Capital Punishment intends to create fear in the minds of the potential criminals, but the sine qua non-being that the individual fears death and values life more than anything else. However, deterrence might not be the outcome in a case where the perpetrator is willing to die in order to amplify their purpose as their ideas are not only validated through their execution but it also plants a seed of revenge in similar minds. This is applicable especially in cases of terrorism and fundamentalist ideas that fuel riots.
This utilitarian argument fails to make a justification empirically as well. A comparative study by M.K. Mangalam on the statistics of homicide established that there is no positive correlation between the death penalty and a lower rate of homicide, his work was based on a comparison between the period between 1945-50 when capital punishment was not legal in Travancore and Kochi and the period between 1951-56 when it was reintroduced.
Justice J.S. Verma Committee which was set up post the horrifying gangrape case of ‘Nirbhaya,’ after analyzing the existing set of laws and penal codes in India, the committee recommended that it is ‘not inclined to recommend the death penalty’ and concluded that capital punishment is a regressive step and may not ensure deterrence. The Law Commission also in its 262 Report recognized that the death penalty doesn’t serve the penological goal of deterrence any more than life imprisonment.
Another argument proposed as an apology for the death sentence is categorical in nature, it draws strength from the retributive theories of justice largely reflected in Kantian ethics. Here, justice is not concerned with the deliverance of certain consequences, rather the focus is on the “intrinsic moral worth” of the act itself. That is, those who commit crimes or engage in wrongful acts need to suffer punishment from a moral standpoint. In the retributionist frame of reference, some punishments are rejected, for its regard for human dignity, however, Kant makes an exception for homicide. Thus, the retributionist framework offers two distinct criteria for punishment; exact and proportional.
For instance, punishment for theft and crimes alike is proportional but in a case of murder, the murderer should be met with the same fate according to Kant. An oversimplified understanding of exact retribution is ‘eye for an eye’ which goes against the premise of categorical justice and is discredited.
However, the retributionist framework itself offers an alternative to the death penalty in the sense that one can address cases with rarest of the rare crimes through the proportional retribution method, where the most severe punishment for the most heinous crime is life imprisonment.
A study by IndiaSpend reported in August 2019, suggested that the stringent reforms in the penal code and constitutional amendments to incorporate death penalty in case of rape and sexual violence has a rather sad story to narrate. The conviction rate for rape cases in India remains abysmally low, it has been on a decline since 2007 and witnessed a dramatic low of 18.9 percent in 2016.
According to the National Crime Record Bureau in a daunting 94.6 percent of cases of sexual violence and rape in 2016, the accused is known to the victim. Thus, the victim feels the pressure to withdraw the case due to familial pressure as the consequences for the perpetrator is dead. Also, the severity of the punishment will have a contradictory effect wherein the offenders might even take conscious efforts to kill the victim in an attempt to distort evidence.
Countries that also award the death penalty in case of rape, and sexual violence with murder like Pakistan, Bangladesh, Saudi Arabia, and Afghanistan are often promoted in the public consciousness as countries with a smaller number of cases. However, Zainab Malik from a Lahore based legal rights firm Justice Project Pakistan revealed in an interview with BBC that though by law rape is treated on par with terror, there has been an increase in the number of cases while the conviction rate remains low.
A similar trend is also witnessed in Bangladesh, where the Oppression of Women and Children (Special Provisions) Act was enacted by the parliament in 1995 to facilitate stringent punishments including death sentence for crimes like rape, trafficking of children, and acid attack. Ironically, this led to more accused being set free due to the lack of evidence and there was no other less harsh alternative for these crimes. It was only in 2015 when the Supreme Court of Bangladesh ruled that the death sentence will remain as an option alongside life imprisonment and is subjective to the gravity of the crime.
Mohammad Musa Mahmodi, executive director of Afghanistan independent Human Rights Commission, also said based on his conclusive understanding of rape laws in the country that the death penalty on its own is not enough to deter rape or encourage women to seek a judicial remedy.
The retributive framework also operates with the risk of reducing a criminal to the crime, which goes against the distinction Kant makes between the person with absolute value and a thing or an event.
The landmark Supreme Court judgment in the Bachan Singh vs the State of Punjab (1980), which set the tone for awarding the death penalty in India established the need to weigh the circumstances relating to the crime as well as the criminal while deliberating a case for the death penalty.
Between 2000 and 2015, as per a research by Project 39A, 30 percent of death penalties imposed by trial courts ended in acquittals, a whopping 65 percent of the cases saw that the death sentences were commuted when the case was appealed in higher courts. This gives out a clear sign of the existing inconsistencies between the judges and the lack of common consciousness about capital punishment.
In 2012, former SC judge P.B. Sawant along with 14 retired judges signed up letters to the then President Pranab Mukherjee, with an appeal to convince the President to commute death sentences of 13 convicts in seven cases citing Supreme Court’s own admission while deciding the three recent cases of Santosh Kumar Bariyar vs State of Maharashtra(2009), Dilip Tiwari vs State of Maharashtra(2010) and Rajesh Kumar vs State (2011), that seven of its judgments awarding death sentence to 9 convicts were rendered per incuriam and contrary to the binding the Bachan Singh vs State of Punjab (1980) judgment.
This judgment was violated for the first time in 1995 in Ravji Ram Chandra vs State of Rajasthan, where the two-judge bench ruled that “the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial.” This approach served as a precedent for at least six judgments. The death of Ravji and Surja Raj is a clear erosion of the rarest of the rare doctrine and is a miscarriage of justice.
This reinforces Justice V. R. Krishna Iyer’s recommendation that a legal policy pertaining to life or death cannot be left to ad hoc mood or individual predilections. The overarching power given to the judge fails to take into cognizance that it is subjective discretion of the judge that eventually decides the nature of the punishment which is arbitrary and can be fatal, selective, and discriminatory.
The judicial jurisprudence by and large, and also in cases involving the death penalty is heavily skewed against the weaker sections. Justice P.N. Bhagwati pointed this out when he said, “death penalty in its actual operation is discriminatory for it strikes mostly against the poor and deprived.”
The Death Penalty India Report 2016 (DPIR) published by the National Law University Delhi, found that nearly 75 percent of all prisoners sentenced to death in India belong to a socio-economically marginalized community. DPIR also found that 62 percent of the prisoners sentenced to death have not completed their secondary education and 23 percent of them have never been to school even for a single day, whereas 75 percent of them had never met their lawyer outside the courtroom. The poor background of these individuals fails to provide them access to quality judicial assistance and redressal mechanisms. These figures highlight the daunting reality of the criminal justice system in the country which is far from Rational and just.
The vindication of the rights of the victim is often misunderstood to be attained through ‘revenge’ or ‘exact punishment’ but the transgression of the rights of the victim isn’t rectified through the same.
The public outcry often influences these cases, the retributive effect is based on a deluge of emotions and often anger and vengeance. For severe crimes, the mob doesn’t wait for the due process of law to be followed rather demand strict actions immediately. The notion that only the death of the criminal will bring justice and reaffirm the rights of the victim nullifies the possibility of potential reform and rehabilitation of the criminal, ad oculos.
The government in an attempt to create strong and stable perception support this public outrage and push for quick and stringent punishment to deter crime, but cases which make an appeal to the conscience of the majority of the population are very few and selective, and doesn’t aid victims otherwise as they have low conviction rate and other legal obstacles due to the severity of the death sentence.
The case of Jyoti Singh was indeed horrifying and called for a nation-wide protest demanding immediate redressal but the Khairlanji case is just another rape story when two women of the Bhotmange family were raped and were made to walk naked in the village followed by the murder of the mother and daughter and the two sons of the family. Little media interest was shown when the incident happened and since then it has been meager to none. The lone survivor of the Schedule caste family massacre, Bhaiyyalal Bhotmage passed away in 2017 due to cardiac attack, after over two decades of attempts to get his family to justice.
In 1972 a young Adivasi girl named Mathura was raped by policemen in Desia Gunj police station in Maharashtra, in the trial session court concluded that she did have sexual intercourse while at the police station but rape had not been proved as she was a habituated to intercourse, and there was no mark of injury found. This controversial statement led to a wave of protest and culminated in the Criminal Law (Second Amendment) Act of 1983. In June 2020 the Karnataka High court in the case noted that it was “unbecoming of Indian women” to sleep after she was ravished as a reason from granting bail to the accused. This is indicative of the society’s faulty construction of an ideal woman, and the patriarchal and misogynist modes of thinking.
Though our legal frameworks appear to have come a long way and incorporated severe punishments and expanded the purview of capital punishment. Empirically it fails to have conclusive data supporting the deterrence it claims to create in the minds of the people.
Prison abolitionist movement has been gaining momentum in the United States for decades where activists like Ruth William Gilmore and Angela Davis are making a case against Prison as an institution itself as it ends up promoting the ‘problems’ it intends to counter. In countries like Spain where the punishment for murder is imprisonment for seven years have seen to record very low cases of murder, and an increase in regard for human dignity and peaceful co-existence.
India needs to end its spree of expanding the purview of capital punishment for political gains and as a shortcut to pacify public outrage and adhere to the Constitution in letter and spirit to lay the basis for a just and equitable society.
Shruti Sinha | Wilson College, Mumbai, Maharashtra
 The Draft Resolution was approved with a recorded vote of 123 in favor, 36 against and 30 abstentions. This was followed by a proposed amendment to the draft by Singapore on behalf of 34 countries which emphasized the sovereignty of the Nation-State to determine its law and thereby the legal penalties and develop their legal systems. This amendment was passed by a recorded vote of 96 in favor, 73 against and 14 abstentions. India voted in favor of this amendment.
 Source: “On the Question of Capital Punishment” published in Vol 30, No 52 of the Economic and Political Weekly, Nishad Patnaik.
 Source: After Nirbhaya, More Crimes Against Women Reported, But Justice Falters published on 3rd August 2019, IndiaSpend, Alison Saldanha.
 A lethal Lottery- Study of Death Penalty in India, Amnesty International.
 Dalit, OBC, SC, ST, and, religious minorities.
 Of the six accused in Nirbhaya case 4 were hanged to death, one died in prison and other who was a juvenile when the crime was done, was released in 2015 after serving three years in a reform facility.