This blog is inscribed by Saloni Singhvi.

Introduction

The execution of four convicts in the Nirbhaya case once again ignited the long-standing feud between the two extremists of the Death Penalty. It again stationed the topic in the public domain for a discussion about its existence in a democracy and about whose right to life is more important, the convicts or the victims.  

“Unless words are an assault to senses, reformation will not follow.” This statement by Nani A. Palkhivala was triggered by the need for Judicial Reformation in India. My version of this statement is triggered on the debate of the death penalty and it goes as, “Unless actions of the state are an assault to the wrongdoer, people’s faith in democracy will not follow.”

Although neither I find myself inclined towards approaching this recourse very frequently nor it can be said that the death penalty must be jettisoned out rightly. Somehow I am with those middle-leagued people who are in the favour of imposing the death penalty only in a very heinous, monstrous, and inhumane crime which is beneath contempt or simply in rarest of rare cases.

Death Penalty as a Deterrent

According to abolitionists, since the death penalty does not at all bring deterrence in society, it must be abolished. Although it must be said that deterrence is not the only plausible aim of the death penalty and if this is the only aim, where will the justice for the victim find its place? Similarly, if this is the only aim then victims must bury their hope for justice fifty fathoms deep.

The death penalty as a deterrent cannot work in the long run in as much as in India. It is so because the average rate[i] of conviction in India(2000-2018) is 42.3% and in rape cases, it is 24% and these meager rates would never prevent a plaintiff from committing rape or any other crime. Deterrence is effective where a person has grown up in a society witnessing every wrongdoer undergoing a punishment but this is not what happens in India but it happened in California.

On May 20, 1961, an ex-convict with a felony record dating from 1941 was arrested for robbery in California[ii]. While committing the crime in other states, he allegedly used a gun but in California, he supposedly pretended but did not use a real gun. He disclosed the rationale behind it and told the investigating officers that he was aware that if he had used the real gun and shot someone dead in a robbery he might get the death penalty. 

Death Penalty or Reformation?   

Every citizen has a Right to Life guaranteed under Article 21 of the Indian Constitution. For a citizen, this right also includes a crime-free society to live in and also protect against any threat of crime. Now, what if one day he holds that a person who has committed one of the most heinous crimes will not undergo death row but a few years of imprisonment(on reformation theory) which can easily be cut short to any less period by applying liberal provisions of law while taking advantage of lacunas of a statute with the help of Indian Criminal Judicial System.

On the argument of the reformation of the criminal, it must be stated that the criminal has already done injustice to the victim and has compelled the victim to give away his right to life. Now, by putting on him a liberal mind for reformation, we thereby, indirectly convey him and the whole society that his crime, though it is heinous, is subject to forgiveness and ultimately pulling our hands off the victim’s rights.

If not the death penalty, justice warrants criminal’s reformation. Although, no lying with the fact that there is no guarantee that the criminal will be reformed. Therefore by this, every person in the society would get a signal that no certainty about their subsequent crimes but their first crime would have a good fate.

The chasm between reformation and punishment can best be resolved by adopting an acerbic approach to capital punishment offenses. Meaning thereby, that those offenses which are so grave that they cannot be considered a human activity must be destined with death row. The whole idea is not to call for death sentence very often but when called upon(Delhi gang-rape) we must undeniably fall for it to secure peace and freedom to our citizens.

Death Penalty and Convict’s Background

While considering a death row for the criminals, some people opt to consider the criminals’ social and racial origins, his overall grounding, etc. Though it is quite a good consideration for investigations, for predicting his nature and line of thought, etc. but a very implausible rationale for escaping the death penalty. State of mind is an important factor to be considered, albeit not the only factor to be considered. Moreover, the mindset is looked upon at the time of the commission of a crime and any adverse considerations will not augur well for the future.

Further, the yawning gap of economic status, social inequality, and poverty are inescapable outcomes for a country like India which has seen the dominance of the West for almost 2 centuries and exploitation at its zenith. Therefore, poverty and plight of any person cannot be taken as a defending tool against crime. Why be any State’s helplessness and it’s unfortunate past lead to the scrapping of victim’s rights?  Especially those rights which in turn is guaranteed by that State only.

Robert Blecker, a criminal law professor, New York School of Law, has spent a couple of thousand hours inside Maximum Security Prison and on death rows across the US interviewing convicted criminals. According to him, there are two groups of extremists, and as Aristotle said, “evil lies at the extremes”. At one end there are cold, callous, and unsympathetic people who do not feel anything and at the other end stand sadistic people who feel thrilled and exhilarating at the moment of the crime. He understands[iii] from his experience that these people simply deserve to die and we must do that. 

Death Penalty and The Rarest of Rare Cases

The Hon’ble Supreme Court in a celebrated and landmark case[iv] held that the doors of the death penalty must be knocked only when it is ensured that all the “alternative options are unquestionably foreclosed”. Hence giving the principle of “Rarest of Rare Cases”. In toto, this principle finds its plinth on the fact that unless all the punitive provisions, in all their shades and possibilities have not been solemnly explored, the death sentence must not be pronounced.  

However, in my view, no consideration must be given to alternative options in rarest of rare. These options must be well explored in other petty cases that are not condemnable and barbaric. If the death penalty is not even applied to the rarest of rare cases, what else would one as a citizen expect from that State which is not even competent to bring in the harshest punishment for the person convicted of a harshest crime?

The death penalty itself warrants the cases causing excruciating damages and which are beyond human nature. Despite this, if such heinous and inhumane crimes can become subject to a liberal and reformist approach and evade the death penalty, then there remains no difference between the rape and misdemeanor.

A Way Ahead

The total abolition of the death penalty and adoption of reformative theory would be a clear indication projecting the fact that every citizen of a country can commit a heinous crime once and he will not be hanged. Therefore instead of questioning as to what good it(death penalty) will do, we must ask what bad (to the victim) has been done?

Law must be consistently applied to all economic, political as well as social strata of society. If anybody in my kinsfolk is liable to undergo a punishment on account of his wrong deed, then irrespective of my wants, I will not be allowed to practice nepotism. Therefore, like something right, fair and just has to be done without taking into consideration numerous obstacles, personal beliefs, etc., similarly, irrespective of political intervention, faulty administration and not so efficient judicial system, the death penalty must be treated as uprightly held with a pragmatic approach that it is not the death penalty which must be abolished but our judicial administration system which needs to be reformed. We do not abandon a correct objective on the reason that the path taken to achieve it is full of errors and flaws. We try to get rid of that distorted an erroneous path.

In the Constituent Assembly on June 3, 1949, when he expressed[v] his views in favor of the abolition of the death penalty, I wonder which punishment, if not the death penalty, did Mr. Shibban Lal Saxena had in his mind for those people whose acts of violence at the time of Independence compelled[vi] ninety Sikh women to commit suicide to prevent rape and abduction?  

[i] India Court Conviction Rate, CEIC, available at https://www.ceicdata.com/en/india/crime-statistics/court-convicti  on-rate

[ii] IRAH THERESE, Death Penalty, Academia.edu, available at https:// www. academia. edu/ search? utf8=% E2 % 9C %93&q=death+penalty

[iii] ROBERT BLECKER, With Death Penalty, let punishment truly fit the crime, CNN Business, available at https://edition.cnn.com/2013/08/22/opinion/blecker-death-penalty/index.html

[iv] Bachan Singh v State of Punjab AIR 1980 SC 898

[v] CADIndia, Volume 8, Document No.98, Paragraph No.143, available at https://www.constitutionofIndia.net/constitution_assembly_debates/volume/8/1949-06-03? Paragraph _number =185% 2C176 %2C175 %2C172 %2C1 71 %2C162%2C145%2C144#8.98.185