The Hangman's Noose

The Death Penalty in India

Does the death penalty work ? Or is it an anachronism which is long past its “use by” date but still continues to remain in use ? According to Amnesty International,  there are 106 countries where use of the death penalty is not allowed by law and 8 countries which permit the death penalty only for serious crimes in exceptional circumstances, such as those committed during times of war. Further, 28 countries have death penalty laws but haven't executed anyone for at least 10 years, with a policy or more formal commitment not to execute. Then there are 56 countries which retain death penalty laws and either carry out executions or the authorities have not made an official declaration not to execute.  The counties actively using the death penalty as of  2019 were  China, Ira, Saudi Arabia, Iraq and  Egypt. The data was released by Amnesty International.

I recently had to opportunity to visit an initiative called Project 39 A under the National LawUniversity of Delhi which has some fascinating  research projects. Among them is one where they are actively campaigning to have the death penalty taken off the statute books in India. Theirs is not a shrill and emotion driven campaign, they are advocating based on the premise that deterrence or at least certain extreme forms of deterrence does not prevent crime and this they are trying to prove through carefully gathered data. Of course, the decision to take or keep the death penalty is ultimately a political one eventually. But the question. Is still worth asking; does death penalty make a difference at all?

In India, death sentences being carried out is relatively rare, although trial courts may keep awarding them. But there are numerous steps before it can be actually carried out and  most of the time, the sentence is converted to life imprisonment  at one or the other stage. Four men accused of raping a girl in New Delhi (Nirbhaya Case) were hanged in 2o20. Before that, the last death sentence was the 2015 execution of Yakub Memon, who was convicted of the 1993 Mumbai bomb blasts. Ajmal Kasab, one of the men involved in the 26/11 attacks, was hanged in 2012.  However ,as on December 31, 2020, a total of 404 prisoners are on death row in Uttar Pradesh has the most number of such prisoners at 59, followed by Maharashtra at 45 and Madhya Pradesh at 37. In recent years, due to public anger, trial courts have tended to impose the death penalty on those convicted of sexual offenses, particularly rape. As can be seen from the examples cited, the cases where the sentences were being carried out were those where the incidents had got so polarised that the normal brakes could not work.

Prior to the Criminal Procedure (Amendment) Act of 1955,, the death penalty was the rule in India  and life imprisonment an exception in capital offences as per the provisions of the old Cr.PC (1898). Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences. After the amendment of 1955 courts were at liberty to grant either death or life imprisonment. Now as per Section 354 (3) of the Cr.PC, 1973 the situation has been reversed and a life sentence is the rule and death penalty an exception in capital offences. Further, the courts are required to state reasons in writing for awarding the maximum penalty.

Peace activists have for long been demanding abolition of the death penalty in our country. The ethics of the death penalty is especially debatable not only because of moral or religious considerations but also because the death penalty is irreversible and no amends can be made even if a subsequent investigation turns in evidence to indicate that the executed person was innocent.  However ,a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 34th report.

Historically, the death penalty used to be enforced across the world, cutting across  cultures and religions, for most serious crimes such as murder, and sometimes also for more trivial ones. For more than two centuries, it has been a matter of intense philosophical and ethical controversy as to whether it should be preserved or abolished. Arguments have focused on delivering appropriate retribution and deterring other criminals, among other things.  The tide started turning after the end of the Second World War.  The Universal  Declaration of Human Rights driven by increased public awareness about the value of life and the right to life, the dignity of human beings, the risk of judicial errors and the fact that execution involves cruelty and undermines the dignity of the convict.

Deterrence is probably the most commonly expressed rationale for the death penalty. The essence of the theory is that the threat of being executed in the future will be sufficient to cause a significant number of people to refrain from committing a heinous crime they had otherwise planned. Deterrence should not be considered in a vacuum. The critical question is not whether potential criminals will be dissuaded from killing because they would face the death penalty rather than no punishment at all. Other punishments such as life without parole might provide equal deterrence at far less costs and without the attendant risk of executing an innocent person. The European Union has abolished the death penalty in all it member states replacing it other forms of deterrence or longer prison sentences. Arguably, Europe has a far lower level of crime than say the United States where 27 states have still retained the death penalty and shootings and acts of random violence still pop up in the news.

It is impossible to view crime as something that only criminally inclined  people  commit. Similarly the view that the task of the justice system is to take away such people and put them away for good is not viable. The oft quoted statement  that we are all products of our circumstances has much to offer here. This is not to suggest the absolute lack of individual choice in the acts we do but rather to reason that the reasons why we do the things we do is influenced by a lot more than just individual will. Crimes are as much about the failure of the state and society as they are about individual choice . Arguments on deterrence assume that crimes are individual problems, imagined and carried out only because of individual will. The principle that human life is inviolable indeed is violated through wars and murders, but it still remains the norm. Breaking a law does not invalidate it. ‘

Ultimately it appears as though the call for the death penalty is more  based  on momentary anger and  rage than of serious reflection. Governments that want to look like they are ‘tough on crime’ are quick to respond to these  calls. This anger is easier to assuage then to study and mitigate the social circumstances  that catalyse and encourage crime. After all social change is a slow and long drawn process but  elections have to be contested  every 5 years. If hanging a person or persons who are currently the symbols of national anger and disgust can bring in extra votes , then why not ? Isn’t power politics worth a few expendable lives ?