Is the death penalty serving the deterrent objective of Capital Punishment: A Critical Analysis
Written By: Shreem Thite
“If he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is no equality between the crime and the retribution unless the criminal is judicially condemned and put to death.” -Immanuel Kant
The argument for capital punishment is frequently made that society has a moral obligation to safeguard its citizens’ safety and welfare. Murderers pose a threat to this community’s safety and well-being. Only by executing convicted offenders can society ensure that they do not commit such offence again. Second, proponents of capital punishment argue that society should promote methods that will achieve the greatest balance of good and evil, and capital punishment is one of them. Society benefits from capital punishment because it may curb violent crime.
People who support capital punishment argue that those convicted of heinous murder offences should be punished to death. Justice is primarily concerned with ensuring that everyone is treated fairly. When a criminal intentionally and wrongfully inflicts more costs on others than he or she must suffer, it is unjust. If the losses imposed by society on criminals are less than the losses inflicted by criminals on their innocent victims, society will be supporting criminals, allowing them to avoid suffering costs that their victims had to face.
Justice demands that society punish criminals in the same way that it punishes innocent people. The death sentence secures justice for all by putting those who purposefully inflict harm on others to death.
Jurisprudential aspect with respect to Capital Punishment
There are two theories that support the validity of capital punishment in the realm of jurisprudence
Retributive theory of punishment
In the early nineteenth century, Hegel gave this theory in which he said that the purpose of punishment is to restore global balance by punishing the offender in the same way. While committing a crime, the criminal, according to him, disregards the victim’s rights and the value of his life. If the crime is not prosecuted, wrong and injustice will spread across society. However, by punishing the culprit, the pre-crime status quo is restored.
Deterrent Theory of punishment
The deterrent theory of punishment states that when a crime is committed, the punishment must be adequate given the nature of the crime, but that sometimes justice speaks in ways that send a strong message to the society that certain actions are prohibited, and that if a person commits it while disregarding the law of the land, the consequences can be devastating.
Essentially, the deterrent theory suggests that punishment should be of a sort that can dissuade people from committing the forbidden act of crime in the first place. It is also possible to argue that capital punishment serves as a deterrent in society.
Capital Punishment in India
Prior to the Criminal Procedure (Amendment) Act of 1955, the death penalty was in practice in our country, with life imprisonment as an exception in capital offenses under the old Cr.PC (1898). Furthermore, the courts were required to provide a justification for granting a lesser penalty for capital offenses than death. Following the 1955 amendment, judges were free to sentence someone to death or life in prison. Now, under Section 354 (3) of the Criminal Procedure Code of 1973, a life sentence is the rule and the death penalty is an exception in capital cases. In addition, judges must provide written justifications for granting the maximum sentence.
The death sentence is intended to serve as a deterrent. The Indian Penal Code prescribes ‘death’ as an alternative punishment to which the offenders may be sentenced, for the various offenses under section 121, 132, 302, 303, 305, 307, 376A, 376AB, 376E, 396, etc.
A Constitution Bench of the Supreme Court promulgated the dicta of “rarest of rare cases” in Bachan Singh v. the State of Punjab (AIR 1980 SC 898), according to which the death penalty should only be granted in the rarest of rare circumstances when no other option is absolutely foreclosed. In Jagmohan Singh v. State of Uttar Pradesh (AIR 1973 SC 947), the Supreme Court was required to rule on the legitimacy of the death penalty.
The Supreme Court dismissed the appeal, holding that, under Art 21, deprivation of life is constitutionally permissible if done in accordance with the procedure established by law. As a result, the death penalty was imposed following a trial conducted in conformity with the Cr.PC and the Indian Evidence Act is not unconstitutional under Art. 21. The Supreme Court in Machhi Singh v. State of Punjab (1980 2 SCC 684) outlined some of the basic contours of when the death penalty should be imposed.
Since 2000, India has carried out certain executions, the most recent of which took place in 2020. Mukesh, Akshay Kumar Singh, Vinay Sharma, and Pawan Kumar, death row inmates for the gang rape and murder of Jyoti Singh in December 2012, were executed in March 2020. Yakub Memon was executed in July 2015, who was was convicted guilty of the 1993 Mumbai terrorist bombing that murdered 257 people. Afzal Guru was executed in February 2013, Ajmal Kasab was executed in November 2012 for the 26/11 Mumbai Terrorist attack. India is one of 78 countries that uses the “rarest of the rare cases” principle in capital punishment. According to an Amnesty International study, India sentenced 109 death row inmates to death until 2018.
Global Perspective on Capital Punishment
According to a 2018 report by Amnesty International, a worldwide human rights organization, India is one of 56 countries that retain the death sentence, whereas 142 countries have abolished it in law or practice. Apart from India, notable countries such as the United States of America, Japan, China, Bangladesh, Pakistan, Iran, Saudi Arabia, Iraq, Egypt, and Singapore have retained the death penalty, while others such as the United Kingdom, Canada, New Zealand, Australia, France, Germany, and Nepal have abolished the death penalty for all crimes.
China, Iran, Saudi Arabia, Iraq, and Egypt tend to have the highest number of executions. Because China considers its data to be a state secret, the precise number of executions is unknown, however, Amnesty International estimates that over 1,000 were carried out in 2019.
Nonetheless, while the idea that the death penalty deters people is not a scientifically proved reality, one cannot completely rule out the potential of a deterrent impact. Because of their inherent depravity, some people are irreparably damaged. Recidivism is the most lethal form of criminal behavior. It’s also worth noting that criminals with unstable personalities have the potential to influence or brainwash other inmates in jail, implying that they aren’t good for society and that capital punishment is the best recourse for them.
Capital punishment is an important part of providing justice and can also be seen as a proactive tool to reduce the country’s crime rate. It is a widely held belief in Indian society that if someone performs a heinous, horrible crime, he must bear the brunt of it and suffer the repercussions.
About the Author
Hidayatullah National Law University, Raipur, C.G.