This article has been written by Bidisha Banerjee, a 2nd year BA LLB student of Jogesh Chandra Chaudhuri Law College, University of Calcutta.

Introduction

Capital Punishment, also known as death penalty, is the practice of killing a person as a punishment for a crime, which is sanctioned by the state. Since the dawn of human civilization, capital punishment has been used as an effective way to execute criminals and dissidents in almost all societies. There are two main goals of this punishment: preventing an incorrigible offender from repeating the crime again, and serving as a warning to those with the same criminal tendencies. 

There has been an ongoing debate regarding the abolition of capital punishment on national as well as international level. The opinion of intellectuals such as Legal Philosophers, Jurists, Judges, and other social scientists stands divided. In many countries, capital punishment is an integral part of the criminal justice system and has been an accepted form of justice through the ages though its form may have been different because of geography, culture, and the passing of time. 

India is among the 55 countries that still retain and implement capital punishment. The framer of Indian Penal Code, Sir James Fitzones Stephen, favoured capital punishment. He observed that the death penalty was more effective in deterring men than any other punishment. Capital punishment is prescribed as one of the punishments in The Indian Penal Code, 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic substance Act, 1985, and The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, 1987, The Air Force Act, 1950, The Army Act, 1950, and The Navy Act, 1957. The Prevention of Terrorism Act, 2002 provides a provision for death penalty for causing death of persons using bombs, dynamite or other explosive substances threatening the unity and integrity of India or striking terror amongst the people. In India, capital punishment is awarded only in the rarest of rare cases, for most nefarious crimes against humanity. Death by hanging is the most common form of execution carried out in India.

This article enumerates some points made against capital punishment, which are as follows.

Arguments against Capital Punishment

1. Retributive theory is one of the theories of punishment that supports capital punishment. It is based on the principle, “an eye for an eye, a tooth for a tooth, a leg for a leg, a life for a life”. This principle itself is said to be barbaric in nature. It does not give any appropriate solution for social and economic offences. Rather, it aggravates the desire for revenge which in turn brings unhealthy situations in society.
   By the principle of morality, “one who cannot give life has no right to take life”. So, capital punishment is said to be against morality and humanism. Everyone should be given a chance to rectify and improve themselves, and regret the crime committed. A person is bereft of those chances if awarded capital punishment.
   
2. The death sentence violates the right to life, most fundamental of all human rights. It also violates the right not to be tortured or subjected to other brutal or degrading treatment or punishment. Every life is sacred and deserves dignity. When one life is devalued, all are devalued.
   The UNGA Resolution 65/206 said that a moratorium on the use of the death penalty can “contribute to respect for human dignity and to the enhancement and progressive development of human rights, and considering that there is no conclusive evidence of the deterrent value of the death penalty.” Rather, an US survey showed that US states without the death sentence saw a decrease in murder rates than the ones with death sentence.
   
3. According to some modern criminologists, crime is a mental disease and a criminal is a patient, who should be given proper treatment. But capital punishment leaves no opportunity for such treatment.
   Sometimes, offences are committed all of a sudden due to emotional outburst or by continuous provocation of any person, otherwise law-abiding and peaceful in nature. So to punish him just like a habitual and cruel offender is unjustified.
   Also, crime is committed under a particular special situation and under some extraordinary psychological stresses. So it cannot be predicted whether a particular criminal will repeat the said crime in future or not.
   
4. Sociologists opine that capital punishment has no useful purpose. Just like a murderer deprives the family of a murdered person of its bread-winner, by awarding the death sentence, also known as “judicial murder”, another family is also deprived of its bread-winner. In no way, help or relief is provided to the family of the murdered as well. Therefore, sociologists suggest that the murderer should be sentenced for life to work and support the family of the murdered person as well as his own. In this way, innocent lives would be saved from suffering, hunger and starvation.
   
5. Our law of evidence and law of procedure are not foolproof. Often, after a death sentence is given to an alleged culprit, the true culprit is caught. There is no way that the mistake could be rectified once the execution is done.
   The Supreme Court laid down the criteria for “rarest of rare” cases in Bachan Singh v. State of Punjab(1980), and capital punishment was only to be issued when the alternative of a life sentence is “unquestionably foreclosed.” The court was given complete discretion in this regard. The Supreme Court also established the notion of balancing, aggravating and mitigating circumstances. To determine whether justice will be served if a sentence other than death were to be imposed, a balance sheet of aggravating and mitigating circumstances in a specific case must be constructed.
   But, the annual “Death Penalty in India: Annual Statistics 2022” report of Project 39A of National Law University (NLU) Delhi says that decision in Manoj vs State of Madhya Pradesh(2022) “recognised the absence of a coherent legal and institutional framework for the collection and presentation of mitigating circumstances”. The report also says, “Through a suo motu writ, the Supreme Court specifically highlighted the lack of uniformity in the death penalty sentencing framework and referred issues in death penalty sentencing to a Constitution Bench towards ensuring ‘real, effective and meaningful’ sentencing hearing for a convict.”
   
6. There is a disproportionate use of capital punishment on the poor, minorities, and members of racial, ethnic, political, and religious communities. According to the National Law University Delhi’s Death Penalty India Report 2016 (DPIR), nearly 75% of all convicts sentenced to death in India are from socio-economically underprivileged categories, such as Dalits, OBCs, and religious minorities.

Conclusion

The capital punishment debate is the most generally relevant debate in the present situation. Capital punishment is an integral part of the Indian criminal justice system. With the growing impetus of the human rights movement in India, many are questioning the morality behind capital punishment.

The Law Commission of India, in its 262nd report said that India should eventually abolish capital punishment, except in cases of terrorism and waging of war against the state to safeguard national security as “times have changed” and “India is in a minority on the death penalty”. Mr. Shashi Tharoor said in an interview, “It is important that we identify alternative forms of punishment and develop a suitable system for rehabilitating hardened criminals and ensuring that they reintegrate into society as responsible citizens. This, of course, puts a greater onus on the government and lawmakers. But let us not take the easy way out by silencing the criminal forever.” 

In India, there are currently 488 prisoners on death row, with most recent executions taking place in March 2020, of four of the perpetrators of 2012 Delhi gang rape and murder case. With current trends in sight, there seems to be no development to completely abolish the system of capital punishment. Only time can tell whether India will retain capital punishment or do away with it anytime soon.

References

1. Political Thought For Law Students by Dr. Bulbul Sircar Roy
2. https://www.legalservicesindia.com/article/1882/Is-Capital-Punishment-Ethical.html
3. https://en.wikipedia.org/wiki/Capital_punishment
4. https://www.legalserviceindia.com/legal/article-4032-death-penalty-in-india
5. https://blog.ipleaders.in/capital-punishment-executions/
6. https://deathpenalty.procon.org/questions/is-the-death-penalty-immoral/
7. https://blog.ipleaders.in/death-penalty-should-be-abolished-an-ongoing-debate/
8. https://thewire.in/law/2022-death-penalty-india-project-39a-report
9. https://documents-dds-ny.un.org/doc/UNDOC/GEN/N10/524/90/PDF/N1052490.pdf?OpenElement
10. https://www.legalserviceindia.com/articles/cap_pp.htm
11. https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/CAPITAL_PUNISHMENT_IN_INDIA.pdf
12. https://sls.pdpu.ac.in/downloads/ExpertsSpeakFinal.pdf
13. https://www.project39a.com/death-penalty
14. https://bansalsamarth.medium.com/should-india-abolish-death-penalty-e0106f1f4a22
15. https://en.wikipedia.org/wiki/Capital_punishment_in_India

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