Every time we hear about a horrifying case of sexual violence, the demand for the mandatory death penalty to perpetrators of rape is reinstated in the public discourse. Fortunately, these demands meet an inevitable backlash from the saner voices within time and the furore dies down. Of course, it may repeat itself later.
We appear to be in the grip of another such cycle after the recent horrifying rape case of Hyderabad. The chairperson of the Delhi Commission for Women went for an indefinite hunger strike demanding mandatory death sentence. A Rajya Sabha MP even demanded public lynching of the perpetrators.
When exploring whether it is wise to even raise this demand, it is useful to consider the recent historical context of these debates because this question is not new. The conflict surrounding the death penalty has been continuing since ages.
If the experience of the past century with respect to death penalty is taken as a guide, it is clear that death penalty as a measure to end sexual violence has completely failed. Learning from this experience, the confidence of criminal justice systems in the effectiveness of the death penalty began to be eroded in the later part of the 20th century.
In 1965, only 23 nations had abolished the death penalty in some facets. Today, over two-thirds of the countries have abolished the same in either the law or in practice. The standards, by which nations are responsible to conduct themselves, have evolved. In India, we continue to keep going against the tide.
Why human rights lawyers are against death penalty? In the system of criminal justice all over the world, and in India specifically, underpinning the element of sentencing is the ‘Theory of Punishment’ on which natural justice is based.
This is classical law, has proved so by having stood the test of time for centuries. It stipulates, simplistically, that there should be four elements of a systematic punishment imposed by the state: protection of society; deterrence of criminality; rehabilitation and reform of the criminal; and retributive effect for the victims and the society.
Capital punishment, in its very essence, goes against the spirit of the Theory of Punishment, and by extension, natural justice.
The element of ‘protection of society’ is not better served by imposing the death sentence than by incarceration. This has been proven time and again as inmates have spent decades on death row, harming no one, but being brutalised themselves by the inhuman punishment being meted out to them.
There are several factors which effect criminal activity, and deterrence is only one of them. In a United Nations’ survey, it was concluded, “…that capital punishment deters murder to a marginally greater extent than the threat… …of life imprisonment.”
The report of Justice Verma Committee said that capital punishment is a regressive step and may not provide deterrence. It recommended life sentence for the most grievous crimes.
It is not just statistics that prove the case against deterrence, but logic also. A reasonable man is deterred not by the gravity of the sentence but by the detectability of the crime.
The facet of ‘reform and rehabilitation of the criminal’ is immediately nullified by the prospect of capital punishment, ad oculos. This leaves only the final element – ‘the retributive effect.’ It should be a deeply held belief that killing should never find compelling reason based on this primal and emotive criterion of revenge alone.
It is not proper that politicians to buy public support by showing that they are “tough on crime”, manipulate capital punishment on the basis of these emotions. Revenge is a personalised and emotional form of retribution which often loses sight of proportionality.
Inequality in award
Arbitrary and discretionary nature of imposing capital punishment: A comparative study of the social and political background of the persons who have been awarded the death sentence so far shows inequality in its award.
Justice P N Bhagwati says, “…death penalty in its actual operation is discriminatory for it strikes mostly against the poor and deprived….” Reasons point to the unavailability of adequate legal assistance to the marginalised.
The Death Penalty Project has conclusively shown the manner in which wrongful capital sentencing is carried out. In the United States alone, research has shown that over 350 people have been wrongfully sentenced in the last century.
Often, sensitive issues like capital punishment hold different opinions in the eyes of different people. Unanimity should replace majority even if capital punishment is to be sentenced.
In the light of the recent events regarding heinous crimes against women, it becomes imperative that judiciary remains staunchly against the cascading media which has unequivocally shown support for death to the offenders.
Public angst and emotions cannot be an alternative for reason and logic. Enforcement needs to be undertaken but the death sentence holds no answers.
(The writer is an advocate at the Supreme Court and works with Srishti Madurai, a human rights organisation based in Madurai)