Author By : Zakiya Khanam / Army Law College Pune
The death penalty, also known as capital punishment, continues to be one of the most controversial and discussed components of criminal justice systems globally, with India being no exception. Its persistent presence in the Indian legal system ignites fervent debates, mainly concerning two core rationales: deterrence and retribution. Supporters claim that the death penalty acts as an effective deterrent against serious crimes, instilling fear in would-be criminals and consequently lowering crime rates. On the other hand, a substantial faction views it mainly as a punitive action, a fair consequence for the most severe crimes, ensuring that offenders face a penalty that matches the seriousness of their deeds. This piece examines the historical backdrop, legal developments, and the continuing philosophical and practical discussions about the death penalty in India, investigating whether its main purpose is genuinely deterrence or if it mainly operates as a mechanism for retribution.
Throughout history, capital punishment has existed within legal systems of different civilizations, frequently acting as a public display to reinforce state authority and maintain social order. In India, the Code of Criminal Procedure from 1898 stipulated the death penalty for specific crimes, allowing courts minimal flexibility. Nonetheless, the introduction of the Code of Criminal Procedure in 1973 brought about a notable change. Section 354(3) of the new code specified that a death sentence should be imposed only for “special reasons,” positioning life imprisonment as the standard and the death penalty as a rarity. This legislative alteration represented a shift towards a more limited enforcement of capital punishment, indicating an acknowledgment of its irreversible character and the necessity for significant caution. The Supreme Court of India has since been pivotal in interpreting and honing the “rarest of rare” doctrine, striving to offer clearer directions for its use.
The reasoning behind deterrence suggests that the threat of execution discourages people from engaging in capital crimes. The reasoning is simple: if the highest penalty is death, logical people will avoid behaviors that might result in this extreme outcome. Advocates frequently highlight the perceived harshness of the death penalty as its distinct deterrent effect, claiming that no alternative punishment can create the same degree of fear. Nevertheless, empirical data backing the deterrent impact of capital punishment is mostly inconclusive and intensely debated worldwide. Research contrasting crime rates in states that have abolished the death penalty with those that retain it frequently does not reveal a notable difference that can be exclusively linked to the existence or lack of capital punishment. Criminologists often contend that offenders, particularly those engaged in crimes of passion or while under the influence of substances, do not thoughtfully consider the implications of their behaviors. Moreover, the assurance of capture and speed of justice are frequently mentioned as more impactful deterrents than the harshness of punishment itself. The lengthy appeals process in India, which may last for years, diminishes any possible deterrent effect, as the connection between the offense and its final punishment weakens with time.
Conversely, the retribution perspective claims that the death penalty is a morally appropriate reaction to offenses that are so atrocious that they strip the criminal of the right to live. It relies on the concept of “an eye for an eye,” highlighting the need for proportionality between the offense committed and the penalty imposed. For victims and their families, retribution frequently provides a sense of resolution and fairness, an impression that the offender has faced severe consequences for their behavior. This viewpoint sees the death penalty not as a method for achieving something (such as deterrence) but as a goal in its own right – a justified punishment. Numerous advocates of capital punishment for retributive reasons argue that specific offenses, like heinous murder, are so ethically offensive that only the death penalty can effectively convey society’s disapproval and maintain the sanctity of human life. This reasoning frequently connects strongly with public feelings, particularly following dreadful offenses.
The Indian judiciary has grappled with these competing philosophies, leading to a nuanced and evolving jurisprudence. The landmark case of Bachan Singh v. State of Punjab (1980) stands as the cornerstone of capital punishment jurisprudence in India. In this ruling, the Supreme Court upheld the constitutionality of the death penalty but established the “rarest of rare” doctrine, mandating its imposition only in exceptional cases where life imprisonment is “unquestionably foreclosed.” The Court emphasized the necessity of a balanced consideration of aggravating and mitigating circumstances related to both the crime and the criminal, reflecting a cautious approach that questions its routine deterrent efficacy and highlights its retributive nature for only the most extreme offenses. Following this, Machhi Singh v. State of Punjab (1983) provided further clarity on applying the “rarest of rare” doctrine by outlining five categories of cases, including the manner and motive of murder, the anti-social nature of the crime, its magnitude, and the victim’s personality, thereby aiming for greater objectivity and consistency in sentencing while reinforcing the retributive aspect for particularly abhorrent acts.
The judiciary’s approach continued to evolve with cases like Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009), where the Supreme Court voiced concerns over the inconsistent application of the “rarest of rare” doctrine, which had led to disparities in sentencing. This judgment underscored the need for a more principled and consistent approach to prevent arbitrary imposition of the death penalty, highlighting the ongoing challenge of balancing retribution with fairness and due process. Procedural safeguards for death row convicts were significantly addressed in Mohd. Arif alias Ashfaq v. The Registrar, Supreme Court of India (2014), where the Supreme Court ruled that review petitions against death sentences must be heard in open court by a bench of at least three judges, a crucial step towards ensuring greater transparency and fairness, given the irreversible nature of the punishment. Finally, Shatrughan Chauhan & Anr. v. Union of India (2014) dealt with the executive power of mercy, with the Supreme Court holding that inordinate delays in deciding mercy petitions could be grounds for commuting a death sentence to life imprisonment. This ruling also laid down guidelines for the disposal of mercy petitions, emphasizing mental health assessments for death row convicts, thereby further restricting the application of the death penalty and introducing a layer of judicial scrutiny that implicitly questions the absolute necessity of retribution in all instances.
The discussion in India is significantly shaped by moral and human rights concerns. Critics of capital punishment contend that it is an inhumane, cruel, and degrading form of punishment, infringing upon the basic right to life. They emphasize the permanent aspect of the punishment, stressing the danger of executing innocent people – a danger that no justice system, no matter how strong, can completely eradicate. The chance of an error, albeit slight, is regarded as too significant a cost to incur. Moreover, detractors claim that capital punishment unfairly targets marginalized groups, the impoverished, and individuals lacking sufficient legal support, highlighting issues of systemic discrimination and disparities. They argue that the emphasis on punishment diverts attention from the essential matters of preventing crime, rehabilitating offenders, and tackling the socio-economic factors that lead to criminal activity.
The worldwide movement is leaning towards elimination, as more than two-thirds of nations have removed the death penalty in legislation or in practice. India, nonetheless, continues to be a retentionist nation, although its use is confined to the “rarest of rare” situations. In its 262nd Report (2015), the Law Commission of India suggested eliminating the death penalty for all crimes, except for those linked to terrorism and waging war, highlighting the absence of a demonstrated deterrent effect and the irreversible consequences of the punishment. This suggestion embodies an increasing belief in legal and academic communities that the death penalty’s effectiveness as a deterrent is debatable, and its retributive elements should be considered alongside basic human rights.
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In summary, the capital punishment in India exists at a complicated crossroads of deterrence, retribution, and human rights. Although the retributive argument resonates with emotional and moral significance for numerous individuals, especially the families of victims, the empirical data supporting its deterrent effect is still unpersuasive. The Indian judiciary has sought to restrict the “rarest of rare” doctrine and related decisions to only the most severe cases, implicitly recognizing its confined role as a general deterrent while highlighting its unique character. The continuing discussion highlights the necessity for a justice system that is both punitive and rehabilitative, emphasizing the importance of tackling the underlying factors of crime while guaranteeing that punishment is equitable, just, and compassionate. As India progresses, the debate over whether the death penalty genuinely prevents crime or simply acts as a means of final punishment will persist as a significant issue, influencing the future of its criminal justice system.
References
Bachan Singh v. State of Punjab, AIR 1980 SC 898.
Law Commission of India. (2015). 262nd Report on The Death Penalty.
Machhi Singh v. State of Punjab, AIR 1983 SC 957.
Mohd. Arif alias Ashfaq v. The Registrar, Supreme Court of India, (2014) 9 SCC 737.
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
Shatrughan Chauhan & Anr. v. Union of India, (2014) 3 SCC 1.
Amnesty International. (Various reports on the death penalty).
Hood, R., & Hoyle, C. (2015). The Death Penalty: A Worldwide Perspective. Oxford University Press.
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