“Life is precious and death is irrevocable”- Yogesh V Nayyar
Capital punishment also referred to the ‘death penalty’ is an institutionalized practice aimed at the deliberate execution of an individual or individuals in response to a definitive or supposed crime committed by the accused. This decision to execute follows a rule-governed procedure to conclude that the person was involved in the crime. Individuals accused of brutal crimes and offences like murder, terrorism, treason and sexual violence usually face a death sentence. India carries out a death sentence by hanging or shooting the perpetrator of the crime. According to a study called Project 39A conducted by the National Law University in Delhi, 755 people have been executed in India since independence. The majority of them are carried out by the state of Uttar Pradesh with 366 people executed since independence This is followed by the state of Haryana with 90 people executed, till date.
Since the 20th century, almost every country in the world had awarded the death penalty at one time or the other. However, in the recent past, many countries have abolished the penalty citing its disuse and unconstitutionality. As a result, approximately 86 countries abolished the penalty leaving countries like the USA, India, China, Pakistan and other Asian and African countries that still award the death penalty and have used it in the recent past. Consequently, there has been extensive debate regarding its retainment in the Indian context. Many human rights activists have called for its dismissal a lot of times, especially in the last two decades. The idea behind the death penalty is deterrence. On one hand, the advocates of the penalty argue that it pays proper respect to the importance of the victim’s life. It brings some form of relief to the victims’ family by allowing them to feel that justice has been done while acting as an effective deterrent. People would be forced to think twice before committing crimes that warrant an execution. While the other side of the coin may argue by saying that the execution of the perpetrator can in no way compensate for the killing of the victims and cannot bring them back. Therefore, imposing death penalty is not the best solution to prevent crime.
The first challenge to the constitutionality of the death penalty came in the year 1967, where in the petitioners argued against the retention of the penalty. The Supreme Court ruled in the penalty’s favour. In order to prevent the arbitrary usage of the penalty, a landmark judgment was passed in the year 1980 which confined its application to “rarest of the rare cases”. On the flip side, according to the Law Commission in its 262th report stated that the “notion of an eye to eye and a tooth for a tooth” has no place in our criminal justice system. As a result, since the 1980 ruling, courts have failed to prevent death cases from being “arbitrarily and freakishly imposed”. It also favoured the abolition of the death penalty by saying that the penalty should be exercised in cases involving terrorism and war-related offences by noting that “Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance”. It is also violative of Article 14 and 21 of the Indian Constitution which provides equality before the law and protects their right to life and personal liberty, respectively. In spite of the fact that death penalty has been imposed in many cases, it has not deterred terrorism, murder or rape. Moreover, the brutality of all these crimes has increased manifold. It violates an individual’s fundamental human rights. Awarding the death penalty is also associated with public outcry and media influence. This increases the burden of expectation on the court by making it even more difficult to award a lesser sentence.
On the other side, apart from India, countries like the USA and China have upheld its constitutionality. India’s neighbourhood is not peaceful and it does not form a supranational conglomerate of nations, unlike the European nation making its abolishment a huge blunder at the price of national security. Those who defend the death penalty often do it by saying that it is justified because there are certain acts so detesting to the society that it warrants the taking of the most critical of rights, the right to life. In order to respect the importance and sacredness of life, it is important to appropriately punish those who take it away.
When a death penalty is awarded to an individual it is more than a mere punishment or penalty. It means we are ending their life in the name of justice. It goes to show our lack of respect towards human life. However, opposing death penalty does not imply that the accused should not be prosecuted. They deserve to be punished for the crime they committed but death penalty is not the answer because it prevents the scope of improvement which could have transformed their life for the better. This is the reason why many democracies around the world are doing away with the deterrent theory of punishment and replacing it with the reformative theory of punishment.
The debate over its brutality will never go away. However, it is my opinion that since we call ourselves a ‘civilized society’, we must refrain from deciding who gets to live and die based on rules and regulations under the garb of justice. A paradigm change is imperative because capital punishment is an extremely barbaric and ancient practice. Adopting the reformative theory of punishment allows the accused an opportunity to improve himself or herself and facilitates their integration and subsequent rehabilitation into the society.
The views expressed in this article are the author's own.