For the first time in the history of independent India, capital punishment was meted out to four convicts simultaneously, in a seven-year-old case of gangrape and murder of a young medical student of Delhi. This has sparked several debates regarding the constitutional validity and application of death penalty in India.
In this post, I argue that the practice of capital punishment in India and elsewhere must be discontinued. Despite having a low execution rate and a high threshold for death sentences in India, the country requires a paradigm shift as its jurisprudence on this matter is far from consistent.
A Misguided Notion of Deterrence
Common sense seems to dictate that if we raise the cost of doing something, fewer people would choose to do it, or so it would seem. This web of belief is the premise on which the proponents of the death penalty base their arguments. We are yet to see concrete data showing the inverse correlation between the death penalty and the occurrence of criminal activities. In many a case, the reverse has been proven to be true. Though this factual contradiction is quite hard to explain, it certainly reduces the credibility of the retentionist theory.
Deterrence is a claim that is made often, and rightly so. It is, however, impossible to have empirical evidence or statistical data that reveals the number of crimes that have not taken place because we are not aware of those who have been deterred; we know only about those who have not been deterred, and who have committed heinous crimes. Although this argument seems viable to some extent, I do not accept the proposition as a whole, because the extremity and irrevocability of the punishment, effectively ceases an individual’s right to have rights. This leads to a situation where both possibilities for judicial error and arbitrariness cannot be excluded. Therefore, the argument’s basis cannot be a mere speculation of the effect of the death penalty as a deterrent.
A Case of Inherent Arbitrariness
Furthermore, this invidious and unconscionable exercise is carried out with a large degree of arbitrariness, making the whole process highly flawed. One must not forget that this inclination towards discretion over predictability comes at the cost of objectivity. To use the procedural aspect of the law and to arrogate to itself the right to take away the life of the person is a worrying facet of the contemporary legal jurisprudence, which in a way cheapens the value of human life.
The Indian Supreme Court held mandatory death penalty to be unconstitutional in Mithu v. State of Punjab due to the disproportionate legislative authority over the matter. However, what one is witnessing today is the excessive discretionary power vested in the hands of the judiciary which could lead to the application of a vague interpretive principle, thereby causing an unjust sentencing of the convict. This broad legal inefficiency that we see today, has predictably resulted in the rise of the culture of extrajudicial killings by state agents, as seen in recent events.
India, relying upon the ‘worst of the worst’ doctrine of Furman vs Georgia, in Bachan Singh vs State of Punjab formulated its ‘rarest of rarest’ doctrine, which is the expression of the country’s restrictionist model to reduce the occurrence of capital punishments. Despite its best intentions, this doctrine is full of gaping, methodological flaws. In spite of the existence of multiple cases that qualify for the death penalty, only a few are imposed, while hundreds of equally or more culpable offenders escape being sentenced to death altogether. This lottery system, as one may call it, which is highly subjective, is dependent on the mental makeup of the judge and, therefore, goes against the basic tenets of the Indian Constitution by undermining its equality jurisprudence. It must be noted that the Indian Parliament has been continuously and comfortably expanding the scope of capital punishment by including new offences within its contours, despite some glaring conceptual problems in it.
In Bachan Singh, the condition that was laid out to the State for meting out capital punishment was that the State should prove that the accused is beyond the scope of rehabilitation and reformation. While the argument usually ends there, the larger issue which the State often conveniently sidetracks is the social and institutional failure and the abdication of the State’s responsibility that has led to the perpetration of the crime. With the collapse of the criminal justice system, which is the result of the State’s failure to address and redress some of the fundamental problems that consequently affect the deliverance of justice, it is the individual who has to pay the price by being subjected to extraordinarily harsh punishments, for the sake of satisfying the public conscience, whatever that is.
If one were to go by the comparative constitutional and international arguments, we would observe that they only further my proposition. The death penalty is violative of Article 7 of the International Covenant on Civil and Political Rights (hereinafter, “ICCPR”)_ Of course, many would disagree with me on a broader level as a few clauses under Article 6 of the ICCPR do provide for the death sentence under strict controls. However, a contextual interpretation to Article 6(6) of the ICCPR, that reads “[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant” quite clearly indicates that though it tolerates capital punishment, in no way is its use legitimized.
Pursuant to this, even the South African Constitutional Court, in the case of The State v Makwanyane had struck down capital punishment, terming it as “cruel”, “inhuman” and “degrading punishment”.
Proponents of the death penalty are right to object that the perpetrators of heinous crimes should not be dealt with lightly, as it would then damage the public confidence in the law. But they exaggerate when they claim that the punishment must fit the crime, as there is no legal requirement that such punishments must be identical, but only commensurate to a certain degree with the offence committed. This could be well achieved with rigorous life imprisonment, as it would save the life of an individual along with all other personal rights vested in him.
Thus, the current discussion calls for a refinement in the existing legal system, where a more liberal and expansionist construction is required. A compelling case has been made out, to strike down death penalty whereby instead of randomly killing a few selected criminals, they are kept in prisons, which empirically speaking have the same deterrence as capital punishment, thus enabling the justice system to reach the desired end through a much less damaging means, while retaining at least the absolute natural rights of the individual.
 The Wire Staff, ‘Nirbhaya Convicts Hanged in Tihar Jail’, The Wire (20 March 2020) <https://thewire.in/law/nirbhaya-convicts-hanged-2?>.
 ‘A Clear Scientific Consensus That The Death Penalty Does Not Deter’, Amnesty International, <https://www.amnestyusa.org/a-clear-scientific-consensus-that-the-death-penalty-does-not-deter/>.
 Mithu v. State of Punjab, 1983 SCR (2) 690 (India).
 ‘Hyderabad case: Police kill suspects in rape and murder of Indian vet’, BBC News (6 December 2019) <https://www.bbc.com/news/world-asia-india-50682262>.
 Furman v. Georgia, 408 U.S. 238 (1972).
 Bachan Singh v. State of Punjab, 1980 (2) SCC 684 (India).
 International Covenant on Civil & Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
 The State v. Makwanyane, 1995 (6) BCLR 665 (South Africa).
The author is a student at NUALS, Kochi
Image: Global Press Journal