SHOULD CAPITAL PUNISHMENT BE JUSTIFIED?

Author: Kkanika Sharma, a student at the Army Institute of Law

Abstract

This article examines the controversial subject of the death penalty within the framework of the Indian criminal justice system. In particular, the concepts of retribution and deterrence are highlighted as conflicting viewpoints on the effectiveness and morality of the death penalty. When evaluating whether capital punishment is justified, the Indian judicial system emphasizes a reformative approach and takes into several variables including socioeconomic background, education, age, and the likelihood of rehabilitation. Analyzing several significant instances, such as Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab, offers insight into the standards used to classify crimes that fall into the “rarest of rare” category, where capital punishment may be administered. 

The article additionally examines developments in the Indian Law Commission’s position on capital punishment, ranging from a previous fruitless inclination towards abolition to a more recent stance to keep it only for offenses related to terrorism. It also looks at how crucial it is to take into account the gravity and severity of the crime, the offender’s capacity for reform, and the potential implications for society when deciding whether the death penalty is justified. Lastly, it examines the ongoing Shahbad Dairy Murder Case to demonstrate the complex decision-making process of imposing a sentence. The article’s conclusion contends that while capital punishment ought to be restricted to irredeemable criminals who pose an exceptional threat to society, the primary objective should be to incite fear in potential offenders and uphold the notions of justice and deterrence. 

Keywords: capital punishment, deterrence, rehabilitation, rarest of rare, Indian Law Commission, reformative approach, Shahbad Dairy Murder Case, hardened criminal

“Revenge is an act of passion; vengeance of justice. Injuries are revenged; crimes are avenged.”

~ Samuel Johnson

Back when man first learned to pick up a gavel and beat the song of justice, the only law he knew was “eye for an eye”. He used this ruling principle to develop the concept of capital punishment. In contrast, some contemporary studies show that the death penalty does not decrease crime rates in a State. It only acts as a savage form of punishment in a civilised society. As Gandhi once said, “An eye for an eye will turn the whole world blind”.

Regardless, the Indian social machinery has not advanced enough to be able to prevent villainous crimes. Where there exist barbaric crimes, there must also be barbaric punishments. The doctrines of retribution and deterrence manage to provide an objectively fair outlook on the issue at hand. They preach that if a person commits a heinous, gravest of the grave crime, he must bear retribution for the same. 

Yet, looking through the lens of morality, it is clear that deterrence should be the real purpose behind awarding capital punishment. The aim should be to discourage others from committing heinous crimes by demonstrating its harsh consequences. 

The use of capital punishment in many States, including India, has been tightly controlled. India’s criminal justice system follows a reformative approach. When there is even an inkling of hope, it pushes for rehabilitating criminals. In doing so, it keeps in mind the criminal’s antecedents, including his socio-economic background, education, age, good conduct in custody, emotional and mental condition, and the possibility of reform. The system does not banish anyone less than a hardened criminal, with no scope whatsoever, to death row. 

In the case of Digamber Vaishnav v. State of Chhattisgarh two persons were convicted of murdering five women and were sentenced to death in 2014 (Parthasarathy, 2019). However, the key testimony belonged to a child of nine years of age who was not even an eyewitness to the crime. Thus, the Supreme Court (‘the Court’) overruled the death punishment, stating that the conviction was based on surmise and conjecture.

In contrast to this case is that of Khushwinder Singh v. State of Punjab, where the convict murdered six family members including two children in cold blood for financial gains. The Court held that the murders were “diabolical and dastardly” and called the case one of the rarest of rare cases. Thus, in a case where “there is no alternative punishment suitable, except the death sentence”, the convict was sentenced to capital punishment. The “rarest of rare” doctrine originates from Bachan Singh v. State of Punjab, where the court limited the scope of capital punishment under Section 302 of the Indian Penal Code while upholding its constitutionality. 

Three years after Bachan Singh, in the case law of Machhi Singh v. State of Punjab, seventeen people – including women and children – were shot to death by Macchi Singh and Mohinder Singh with rifles (Dixit, 2022). The Court gave certain guidelines as to the determination of whether a case is eligible for the “rarest of rare” title, as below mentioned: – (Rajkumari, 2022)

1. It should be a case of extreme conviction.
2. Circumstances of the offender should be considered.
3. This only applied in cases where life imprisonment is not an option at all due to insufficiency of punishment.
4. A balance sheet for all stimulating and mitigating conditions should be prepared.
5. Manner and motive of committing murder should be considered- whether it is a case of extreme cruelty, or inhumane or diabolical nature to arouse intense outrage in the community.
6. The magnitude and social nature of the crime should be considered.
7. The personality and position of the victim should be considered.

The series of judgements that came henceforth added new considerations to the list, vis:-

1. Criminal record, socio-economic background, and good conduct during custody of the criminal
2. Criminal’s mental condition and his scope for reformation
3. Conclusive nature of evidence, leaving no room for surmise or conjecture
4. No alternate punishment

Justice Palekar via his judgment in Jagmohan Singh v. State of UP upheld the constitutionality of the same and said that the death penalty can be given where the murder was diabolical in conception and brutal in its execution, or was of a person of high status thereby shaking society.

The 35th Law Commission Report on Capital Punishment (1967) had extensively undertaken to abolish capital punishment from the available criminal legal remedies (Fourth Law Commission of India, 1967). However, ultimately the socio-economic-cultural condition of India and its impact on the crime rate, along with the lack of empirical research in India for the same led to the general consensus that capital punishment should be retained.

The recommendations are as follows (Fourth Law Commission of India, 1967) (Twentieth Law Commission, 2015):

“It is difficult to rule out the validity of, or the strength behind, many of the arguments for abolition. Nor does the Commission treat lightly the argument of the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment, and the strong feelings shown by certain sections of public opinion, in stressing deeper questions of human values.

Having regard, however, to the conditions in India, the variety of the social upbringing of its inhabitants, the disparity in the level of morality and education in the country, the vastness of its area, the diversity of its population, and the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of the abolition of capital punishment.”

In 2015, the 262nd Law Commission Report on Death Penalty progressed when it observed that the Indian socio-economic-cultural setup had profoundly changed (Twentieth Law Commission, 2015). The Commission now showed a trend towards abolition of the death penalty (The Law Commission of India, 2015). It suggested that the death penalty be retained only for terrorism-related crimes.

Thus, capital punishment is only sought out when the criminal has been established as hardened and incapable of reform or rehabilitation. From the iteration of Kautilya, “Those who seek to achieve things should show no mercy”, as well as the words of Napoleon Bonaparte that read as: “To achieve ultimate victory, you must be ruthless”, it is withdrawn that for total justice to prevail, these irredeemable menaces to society must be completely eradicated.

However, in Khushwinder Singh (2019), such an observation was not made. There was no discourse on his ability to rehabilitate. Instead, it followed the rule given in the 1996 verdict of Ravji v. State of Rajasthan- “it is the nature and gravity of the crime alone that demands consideration” (The Hindu, 2015). This case stands in contrast to that of M.A. Antony v. State of Kerala (2018), which also involved the murder of six relatives for the purpose of usurping their monetary wealth. In this case, however, due to the lack of evidence to establish the convict as a hardened criminal, his death sentence was commuted into a life sentence.

In the recent and ongoing Shahbad Dairy Murder Case of 2023, the murderer Sahil stabbed and bludgeoned his minor girlfriend to death innumerable times. He continued in a cruel, inhumane manner even after she collapsed into a heap. All evidence is still being investigated, however, based on the current chain of circumstances, the case may be of the “gravest of the grave” nature. The defendant is a twenty-year-old who has already confessed. His manner of the crime was diabolical and recorded on tape. He bought a knife fifteen days before stabbing her to death, which shows ample calculation on his part, and the incessant assault points at psychopathy (DNAWebDesk, 2023). However, on the other hand, the magnitude of crime was not exceptional. His motive was jealousy, and his prior conviction record is unknown. In the Indian Criminal Judicial system, where there is even a sliver of doubt or any scope for the criminal’s redemption, the judgement will favour the criminal and not award capital punishment.

Conclusion

From a lens of pure practical objectivity, capital punishment is necessary for the gravest of grave crimes that involve remorseless criminals and psychopaths with no chance of reform. These criminals are better off dead than alive. One single criminal never adds to the crime rate lineally. A famous criminal or convict might become a messiah for many more who will either imitate him or draw inspiration from him. Therefore, it is essential that the judicial system strikes a rightful fear of the law in the hearts of all those deriving indirect tutelage from these felons. As the renowned Chinese saying goes, “when the tree falls, the monkeys scatter”. In the name of reform and rehabilitation, criminals who have committed the most blood-curdling and atrocious acts cannot be left with punishments less severe than their crimes. The following words given by Niccolò Machiavelli should, thus, be heeded:

“Men must either be caressed or else annihilated; they will revenge themselves for smaller injuries, but cannot do so for great ones; the injury therefore that we do to a man must be such that we need not fear his vengeance (Machiavelli, 1532).”

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