Not only is the death penalty barbaric and immoral and its deterrent effect unproven, it also contradicts the core objectives of the criminal justice system

Advocating for the abolition of the death penalty in the immediate aftermath of the sentencing in the Delhi rape case may appear morally dubious. What rights do people guilty of so heinous a crime lay claim to, and what do they deserve but death, you might be inclined to ask. But when you apply an immoral law to monstrous criminals, it becomes easier to make comparably iniquitous laws for the rest of us. Capital punishment, perfectly legal as it may be under India’s laws, even if only in a prescriptive sense, runs counter to the core objectives of the criminal justice system. Equally, its application in the “rarest of rare cases”— as mandated by the Supreme Court — speaks to a larger, underlying incoherence in India’s penology.

Beccaria’s treatise

Today’s debate over capital punishment has its broad genesis in 1764 when the Italian jurist, Cesare Beccaria, published his treatise, “An Essay on Crimes and Punishments.” In it, Beccaria argued that abolishing the death penalty was crucial to a society’s progress from barbarity to civilised refinement. “Is it not absurd,” he asked, “that the laws, which detect and punish homicide, should, in order to prevent murder, publicly commit murder themselves?”

Beccaria’s thesis was founded on two central arguments. One, that the objectives of punishment were dual: to deter the future commission of crimes, which the death penalty decidedly did not achieve, and to reform the offenders, which the death penalty decidedly cannot achieve. And two, that the state’s right to take the life of a citizen was illusory, and opposed to the social contract from which it derived its sovereignty.

Beccaria’s assertion at the first level, therefore, comes down to whether capital punishment, by a measure above common imprisonment, deters people from committing crime. “Every act of authority of one man over another that does not derive from absolute necessity is tyrannical,” he wrote. “For punishment to be just it must have only that degree of intensity that suffices to deter men from crime.”

After centuries of debate, the answer to Beccaria’s question remains as clear as it did when he published his thesis. There is no empirical evidence evincing the death penalty’s ability to deter crime; if anything, the converse has been shown to be true. In the United States, for instance, death penalty States have far worse homicide rates than abolitionist States. So given that capital punishment does not act as a deterrent, and given that it cannot reform an offender (who will be too dead to be reformed), the only logical argument in its favour is on retributive grounds.

Yet it wasn’t for such objectives that the death penalty was instilled as punishment for some offences (viz. murder and the highest offences against the state) under the Indian Penal Code 1860. In fact, the only reason murder was punishable with death, while rape was punishable with mere imprisonment, was on deterrent grounds. Lord Macaulay, who drafted the code with painstaking precision, wrote in his notes to the statute that “no argument that has been brought to our notice has satisfied us that it would be desirable wholly to dispense with [the death penalty].” But, according to him, while many were of the opinion that gang-robbery and rape were offences that ought to be punishable with death, atrocious as the crimes may be, they cannot be placed on the same class with murder. These offences, he wrote, “are almost always committed under such circumstances that the offender has it in his power to add murder to his guilt.” If the punishment of the crime already committed were the same as the punishment for murder, the offender, said Macaulay, would have no restraining motive. “A law which imprisons for rape and robbery, and hangs for murder,” he wrote, “holds out to ravishers and robbers a strong inducement to spare the lives of those whom they have injured.”

Macaulay’s argument, in spite of its chilling moral nuances, is lucid and logical assuming the death penalty acts as a deterrent. But in the several decades since the Indian Penal Code’s drafting, capital punishment’s deterrent effect remains, at best, unproven. Yet, India continues to retain the punishment. And in doing so, it has muddled a largely rational penology that stood as the basis for its substantive criminal law.

Retaining the death penalty on grounds of retribution alone is flawed at many levels beyond its inherent immorality. In India, while murder is punishable with death, theft is not punishable with a corresponding theft nor is rape punishable with rape. Although retribution does not always envisage an eye for an eye, we see it used as the theoretical basis for the punishment of some offences, while for others the law reverts to deterrence and reformation for justification.

“Rarest of rare” cases

Further widening this penological schism is the Supreme Court’s dictum that the death penalty be applied only in the “rarest of rare cases.” In 1982, a bench of five judges, in Bachan Singh v. State of Punjab, upheld the constitutionality of Section 302 of the IPC, which prescribes the death penalty as punishment for murder. And in so upholding its validity, the court prescribed that the penalty be accorded only in the “rarest of rare cases.” The Court referenced Macaulay, who in drafting the code said capital punishment ought to be sparingly inflicted. But his intentions weren’t to instil in judges discretion in determining which were the “rarest of rare cases.” On the contrary, he was providing a rationale for why the death penalty was restricted only to murder and the highest offences against the state.

Justice Krishna Iyer’s concern, expressed in Ediga Anamma v. State of Andhra Pradesh, that “… it is unfortunate that there are no penological guidelines in the statute for preferring the lesser sentence, it being left to ad-hoc forensic impressionism to decide for life or for death,” went unheeded in Bachan Singh. The “rarest of rare cases” doctrine has, on the other hand, exacerbated the confusion over which cases merit the death sentence. By its fundamental ethos, as Justice P.N. Bhagwati put it in his dissenting opinion, the doctrine is constitutionally flawed. “The question may well be asked,” wrote Bhagwati, “by the accused: Am I to live or die depending upon the way in which the Benches are constituted from time to time? Is that not clearly violative of the fundamental guarantees enshrined in Articles 14 and 21?”

Irrevocability

The strongest, practical argument, however, against capital punishment is its irrevocability. The dangers are most evident from the Supreme Court’s judgment in 2009 in Santosh Kr. Bariar v. State of Maharashtra. Here, a bench comprising Justices S.B. Sinha and Cyriac Joseph ruled that previous judgments of the Court, in which 13 death sentences were validated, were rendered per incuriam, or in other words were rendered in ignorance of the law laid down in Bachan Singh’s case. Out of these 13 convicts, whose sentences were confirmed by a decision that was admittedly incorrect, two have already been hanged. Such episodes are too high a price to pay for a punishment that, all else apart, is ineffectual. What’s more, in a country where an accused’s right to free legal counsel is, at best, a mockery, retaining capital punishment sounds a virtual death knell to the Constitution.

That this debate is still alive in India, however, speaks to an even broader problem: an underlying incoherence in the country’s penology. Hang the murderers and the rapists and we will deter all future crime, seems to be the attitude. “I have raised the demand to award capital punishment to these four convicts,” said the Leader of the Opposition, Sushma Swaraj, after the four men were found guilty in the Delhi case. “If they are awarded the death sentence, it would become a model for the country and effectively curb incidents of rapes.” Such demands for the guillotine shift the focus from far more significant considerations: the maintenance of law and order through better policing, effective, efficient prosecutorial conduct and, most importantly, the need to reform the country’s prisoners. The death penalty is not only barbaric and immoral, it also contradicts the criminal justice system’s core objectives: to reform and rehabilitate offenders while ensuring that the accorded punishment deters others from committing crime.

(The author is an advocate practising in the Madras High Court)