By Preety Sahu*
The Law Commission of India submitted its 262nd report on August 31, 2015, ‘The Death Penalty’ in India. The report says, “…the Commission feels that time has come for India to move towards abolition of the death penalty… The Commission accordingly recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war… Sincerely hopes that the movement towards absolute abolition will be swift and irreversible.”
However, for several key reasons it seems early to think of abolishing death sentencing in the country. Although the Commission has justly pointed out that the abolition of capital punishment should be swift, its remark that time has come for India to abolish death penalty does not seem agreeable. The societal conditions, upbringing, norms etc. in the country are yet to become progressive. The ever-escalating atrocious and scandalous crimes in the Indian society refute the Commission’s belief that “Development in India (Social & Economic Conditions) are vastly different now”. Crimes against women, socially and economically backward sections and children bring both individual and societal injuries that are widespread and do not demonstrate significant social development in India. Also it is objectionable that only terrorism-related offences should be worthy of sentence to death. Murders, not committed in self defence, and rape are as grave as terrorism in nature; because their impact and the harm caused is vast.
The very essence of the justice system is that guilty people must be punished in proportion to the severity of their crime. Justice requires offenders to suffer for their doing, in a way appropriate to their offence. And imposition of appropriate punishment is the manner in which a welfare state should respond to the society’s cry for justice. Abolishing death penalty absolutely may endanger the very essence of justice. Because limiting its paradigms on whatever grounds may raise doubts on its impartial character. The Commission’s argument for prohibiting death penalty because of “judicial developments on the arbitrary and subjective application of the death penalty” can also be nullified on the ground that prohibiting death penalty is not an appropriate step to meet this challenge. Moreover, courts in India are already becoming averse to death penalty. Although a large number of convicts are routinely awarded death penalty, but the cases of actual executions are rare.
There are more profound reasons to support relevance of death penalty for the time being. Providing capital punishment for grave offences provides some kind of deterrence to the society against potential crimes and criminals i.e., by creating fear of death penalty among potential criminals. It is argued that such deterrence does not work. In fact the Law Commission has provided a gist of the same view in its recent report. The report says, “Death Penalty as a Deterrent is a Myth.” However, it is necessary to point out that statistical evidence doesn’t confirm that deterrence works, but it doesn’t show that deterrence doesn’t work either. And there is a reason why such deterrence is not very effective in India. Deterrence is most effective when the punishment happens soon after the crime. To make an analogy; a child learns not to put his or her finger in the fire, because the consequence is instant pain. The more the legal process distances the punishment from the crime – either by time, or certainty – the less effective a deterrent will the punishment be.
In India, the investigation and trial system is so slow that it minimizes the deterrence of death penalty and other punishments. Again, in cases of rape and assassination, providing life sentence instead of capital punishment creates an unwilling situation for the whole society, as the public funds are used in maintenance and protection of the guilty till their natural death; which also adds to the dilemma of the victims, their family and friends, and society as a whole.
Of course capital punishment doesn’t rehabilitate the prisoner and return them to society. Yet in some cases persons condemned to death repent, express remorse, and very often experience profound spiritual rehabilitation before their execution. It may be discarded as an argument in favor of capital punishment, but it demonstrates that death penalty can lead to some form of rehabilitation. Also life imprisonment does not protect society without parole. The offender may no longer be a danger to the public, but the burden of maintaining them, their protection, and preventing them from escaping the cell is perennial. Executions eradicate that danger. It is irrefutable that those who are executed cannot commit further crimes. Again, ‘plea bargaining’ is used in many cases of life sentence for severe offences. It is a process through which a criminal gets a reduced sentence. This may deprive the victim from due justice.
The Supreme Court most notably adopted the ‘rarest of the rare’ guideline in some death penalty related cases. Those crimes that arouse collective shock and social wrath are categorized as ‘rarest of the rare’. This may remove alleged arbitrariness from death penalty. However, the ‘rarest of the rare’ guideline should be more inclusive in its scope. Capital punishment must be due for offences like heinous rapes and assassination, vicious assassination, multiple killings that pose deep indignation to human life. Also, it is important to be considerate about the victim too. In some cases a punishment less than commutation of death may take away the faith of the victim in the judiciary itself. Therefore, at the present juncture, it is inappropriate to risk the abolition of death penalty completely. Of course, sufficient measures should be taken to avoid the loopholes to ensure an appropriate verdict system in the country.
To conclude, if death verdict is to be replaced in the near future, it has to be replaced with a uniformly serious punishment. So there should be no question of prohibiting capital punishment before a compatible alternative is found.
*Preety Sahu is Research Scholar, Jawaharlal Nehru University, New Delhi. She can be reached at [email protected]