Author: Ayush Kumar Gautam, a student at Symbiosis Law School, Pune.
Introduction
The death penalty, also known as judicial execution, is one of the most controversial issues on the face of the earth. It is defined as the lawful execution of a death sentence in retribution for a crime, which is usually reserved for the most heinous acts, such as murder, terrorism, or espionage. Although some view it as an indispensable tool for justice and deterrence, others argue that it violates the fundamental right to life and has no place in a civilized society. The debate centres on two primary issues: its moral justification and its practical effectiveness in discouraging crime. This article examines the pros and cons of the death penalty, investigates its global and Indian scenarios, and challenges its significance in contemporary justice systems.
Historical Background
The death penalty’s existence dates back to ancient cultures, with notable mention going to the Mesopotamian Code of Hammurabi, which instituted “an eye for an eye.” Historically, methods have ranged from hanging and beheading to today’s lethal injection. Originally enacted to sustain social order and deter criminal activity, the intellectual evolution with the Enlightenment provoked thinkers, such as Cesare Beccaria, to pose questions about moral legitimacy. In “On Crimes and Punishments”, he argued it was ineffective and unjustifiable. Today, despite declining global prevalence, the death penalty remains enforced in countries like the U.S., China, Saudi Arabia, and Iran, while many European nations have abolished it.
Arguments in Favor of the Death Penalty
1. Deterrence of Crime: The most common argument for the death penalty is that it has a deterrent effect. It deters crime, say the proponents, because death is a strong disincentive against heinous crimes. The idea is simple: if offenders are afraid of being executed, they are less likely to commit serious offenses. Though there is no conclusive empirical research on deterrence, supporters highlight countries with severe capital punishment laws that report fewer rates of violent crime. These include Saudi Arabia and China, where severe punishments in terms of executions are said to reflect the law and order situation in those countries.
2. Retribution and Justice: This is a principle of retribution because the idea is proportional justice-the more heinous the crime, the worse should be the punishment. Therefore, when it comes to issues such as terrorism, premeditated murder, and child rape, it is only the ultimate penalty that can give justice and closure to the victim’s family. For example, the Nirbhaya case in India, executed the murderers in 2020. It is said to be a very good example in which death penalty was a mode of justice to an unspeakable crime.
3. Prevention of Recidivism: Executing a convicted criminal will ensure that the same crime will never happen again because of the threat to the community. Cases such as prison breaks and further crimes in a life sentence demonstrate this. For example, habitual criminals have committed violent crimes upon their release or even on parole.
4. Public Opinion: Public opinion in many countries overwhelmingly favours capital punishment for gross crimes, with proponents arguing that democratic regimes must reflect citizens’ expectations about justice, the way things are being presented in India.
Arguments Against the Death Penalty
1. Violation of Human Rights: The strongest argument against the death penalty is its violation of the fundamental right to life, as emphasized in constitutions and international laws. Critics assert that state-sponsored executions contradict Article 21 of the Indian Constitution, while organizations like Amnesty International advocate for its global abolition.
2. Risk of Miscarriage of Justice: No judicial system is perfect. Wrongful executions are irreversible. Judicial fallibility has been debated on such occasions where wrongful convictions were upheld. The cases include Shankari Prasad Singh Deo v. Union of India. Worldwide, wrongful convictions have been documented through the process of flawed investigations, coerced confessions, or inadequate legal representation. For example, the Innocence Project has freed many prisoners on death row in the United States with DNA evidence. The Supreme Court of India has admitted the flaws of the system in various cases and insisted that the death sentence be meted out only in the “rarest of rare” cases.
3. Ineffectiveness as a Deterrent: The research has shown that there is no clear correlation between the death penalty and crime deterrence. Nations abolishing it, like Canada and Europe, did not observe any rise in violence; what matters more is poverty and education for prevention.
4. Arbitrariness and Discrimination: It usually represents a systemic bias of the imposition of the death penalty as has been shown in the Machhi Singh v. State of Punjab (1983), which the Supreme Court had provided elaborate explanations about the ‘rarest of rare’ and underlined judicial discretion. Socio-economic status, race, caste, and competent legal representation can have a bearing upon sentencing. The Indian study shows that persons who are not members of society are usually marginalized. They include the Dalit people and also economically impoverished individuals.
5. Economic Costs: Contrary to common belief, the death penalty can exceed life imprisonment costs due to lengthy trials, numerous appeals, and expenses for death row facilities, as seen in U.S. studies.
6. Moral and Ethical Concerns: Opponents of capital punishment argue that the state shouldn’t take lives for justice, supported by teachings emphasizing forgiveness, redemption, and human life sanctity, notably reflected in Gandhi’s principle of non-violence (Ahimsa).
The Global Perspective
The use of the death penalty is becoming a rarity worldwide. In fact, more than 140 countries have officially abolished it in law or in practice. Europe continues to lead the abolitionist region while countries like China, Iran, Saudi Arabia, and the United States continue the executions.
Treaties, for instance, to human rights such as the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) urge countries to ratify abolition of capital punishment. Bodies such as United Nations have constantly urged that their member states adopt punitive alternatives.
The Indian Scenario
In India, the death penalty is legal but is considered only for the “rarest of rare” cases, as laid down by Bachan Singh v. State of Punjab (1980). Capital punishment should be awarded when other punishments are unable to provide justice, as determined by the Supreme Court.
While the courts insist on careful application, issues still linger in delays, arbitrariness, and socio-economic profile in those condemned to death.
Law Commission Recommendations
The 262nd Law Commission Report (2015) recommended abolishing the death penalty for all crimes except terrorism-related offenses. It highlighted the risks of wrongful convictions and the lack of evidence for deterrence.
Conclusion
Debate about the death penalty therefore mirrors deeper questions on issues of justice, morality, and the role of the state. Advocates for the policy have long argued that it prevents crime and brings justice. Its opponents point to the very high moral, practical, and systemic flaws. The growing international trend toward abolition also reveals the increasing recognition of human rights and the fallibility of judicial systems.
In a democratic society like India, the challenge is between justice for victims and human rights and the elimination of systemic biases. Alternatives like life imprisonment without parole, with judicial reforms, could provide a more humane and effective justice system. As societies evolve, the question remains: Can capital punishment coexist with the ideals of human dignity, fairness, and justice?
FAQS
1. What is the ‘rarest of rare’ doctrine in the Indian context?
The ‘rarest of rare’ doctrine, introduced in Bachan Singh v. State of Punjab (1980), stipulates that death penalty is for only the gravest of crimes when life imprisonment would not be adequate enough, thereby preventing arbitrary application of capital punishment.
2. Is the death penalty a proven deterrent to crime?
Studies show mixed results regarding the deterrent effect of the death penalty. Proponents argue that it deters crime, but opponents point out that countries like Canada and European nations abolished it without an increase in violence. The Indian Law Commission’s 262nd report reflects this lack of evidence.
3. How does India ensure fairness in awarding the death penalty?
India has strict safeguards and judicial reviews for death sentences, focusing on the ‘rarest of rare’ principle. Concerns persist regarding process delays, socio-economic disparities, and legal representation quality.
4. Are there alternatives to the death penalty?
Alternatives to execution include life imprisonment without parole, keeping offenders from society while promoting humane treatment and aligning with modern justice and rehabilitation principles.
5. What reforms are needed if the death penalty is retained?
Death penalty retention requires reforms for fairness, including expedited trials, improved legal access for marginalized groups, strict ‘rarest of rare’ adherence, and addressing judiciary biases.
