“It is cold at six-forty in the morning on a March day in Paris, and seems even colder when a man is about to be executed by firing squad.”
― Frederick Forsyth,  The Day of the Jackal

 Introduction:

Capital punishment, as it is known, is a topic of universal debate. To put it simply, Capital punishment means death penalty. Any crimes that are punishable with a death penalty are called capital crimes. Capital punishment attracts worldwide attention because of the simple fact that death is violative of the Right to Life[1], as provided in the Constitutions of various countries, including India. Before even getting into the intricacies of the debate it is essential to note that the idea of death penalty is essentially such, that beats the primary objective of the human life, that is existence.

Having said that, the recent Law Commission Report[2] of India has suggested that the death penalty is an action of vengeance and it should be given only to terrorists and persons engaging in war. Now the questions that are pertinent to answer in this article is whether the Death Penalty is in itself unconstitutional and if it is not, how can it be justified only for the terrorists?

To start with, there is a need to closely scrutinize the objectives behind the death penalty. In view of the law makers, there are certain crimes that are of such gruesome and cruel nature in themselves that the accused deserves nothing less than the death penalty for the accused. Also, it is an argument that such death penalties will act as a deterrent and stop other prospective criminals from committing the crime. This explanation is based on “lead by example”. Another reason why death penalty is endorsed for grave crimes is the idea that death penalty is the worst form of punishment.

Why Death Penalty is a bad idea?

The valid reasons as to why death penalty should be done away with completely:

1.Capital Punishment does not deter crime

Based on evidence and scientific studies, it is persistently noted that death penalty consistently fails to demonstrate the very reason it was bought into existence for, that is the vague idea that death penalty deters prospective criminals from committing crimes. The pro – death penalty argue that on seeing a criminal being hanged for a crime, others would fear the same and hence would abstain from committing crimes. This argument is a plain assertion without any reasoning. There have been no statistics or facts to prove the same. The overwhelming conclusion from years of deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of life in prison.[3] A punishment can be proved to be effective only if it is consistent and prompt in implementation. Capital punishment in no case can fit this criterion.

2.Low quality defence

As rare or futile this argument may seem, but it is true to the accounts of many who were subjected to the death penalty. They fell victims to this literally “deadly” punishment only because they failed to get the best defence counsel or attorney. There have been cases where the accused had to be sentenced to death based on the evidences produced by the prosecution, to which the defending attorney had no defence. How can the evidentiary value of the evidence of the prosecution be weighed against “no defence at all”?

3.There are better ways to Justice for the victim

The kith and kin of victims face severe trauma and loss of a dear one which no one can indemnify. Executions in no way do any good to these people. Neither the dead shall return, nor will the pain and suffering of the family of the victim end. It rather creates a similar situation in the family of the accused: a situation of despair and gloom from losing a loved one. Quoting Mahatma Gandhi, “an eye for an eye will make the whole world blind”. The death penalty does not guarantee indemnity, where the execution of the accused shall undo the bad and the loss done to victim or his family. The State, by which I mean, any State, has absolutely no rights whatsoever to regulate life and death of a citizen. There are better ways like compensation for the victim’s family, other assistance depending upon the degree of loss they have suffered etc. Killing a person for death of another person does not make sense in an era where “Human Rights” is the buzz word.

4.Reformation is the aim

The best answer to why no death penalty should exist at all is reformation. In countries like India, where reformatory theory of punishment is followed, there is no justification for such a penalty that is against the theory. The aim of punishment is to change the person, to put him in conditions where he is forced to believe that his acts were wrong. Subjecting the person to death penalty leaves him no chance to a “second chance” towards reformation. Even if the person is incapable of reformation, being a habitual offender, life imprisonment is always an option. To punish him is to make him suffer the consequences of his act, so that he can regret and repent. Justice is not served if he is dead, free of any problems.

Conclusion:

It is imperative to note that the public outcry and protests after events such as the Delhi gang rape case put a pressure on the judiciary to straight away hang the accused following the public demand. But then what distinguishes these learned Judges and the civilian is the Judge’s knowledge of the law. The Supreme Law of our country is the Constitution of India and the Articles 14[4] and Article 21[5] at the bare minimum are violated when an accused is sentenced to death. Also, the jurisprudence of criminal laws of the country is something that requires deep knowledge which is out of the reach of the common man. The number of countries employing the death penalty is declining and it is possible that worldwide opinion and pressure will gradually influence all countries to abandon this practice.[6]

Coming specifically to the terrorists, there are high chances that this will not work well because, it’s highly unlikely a point of general consensus, something that most people can and should agree on (Not that the public opinion is always right). Someone who is a terrorist for me, may be a freedom fighter for you. This one, pretty much depends on the eyes of the beholder. Therefore, the very idea of death penalty should be done away with, for everyone, without any discrimination or exceptions. Death penalty implies death in every sense, for everyone. Terrorist or not, death is a punishment for his family, not the person himself.

[1] Article 21, The Constitution of India

[2] 228th Law Commission Report. Available at http://lawcommissionofindia.nic.in/reports/report228.pdf

[3] Michigan State University and Death Penalty Centre, The Death Penalty

[4] “Right to Equality and Equal Protection of Law : The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”

[5] “Right to Life and Personal Liberty :  No person shall be deprived of his life or personal liberty except according to procedure established by law”

[6] Richard C. Dieter, The Death Penalty and Human Rights: U.S. Death Penalty and International Law. Available at http://www.deathpenaltyinfo.org/Oxfordpaper.pdf

This article is written by Ms. Deepika Bahirwani, a law student at Institute of Law, Nirma University