It is not the severity of punishment but certainty of it creates deterrence.
It is often said that there are two sides to coin likewise; in India, crimes, and criminals both exist in large number together with good people. The term capital punishment has its origin from the Latin word capitalis which means regarding the head. The controversy of the death penalty is a never-ending one however it does not matter, whether one is in the favor of abolition or retention of it. Capital Punishment is a legal death penalty in India because it is the procedure established by law and is awarded for the most heinous and grievous offense.
There are two main reasons for imposing the punishment, one is the criminal should suffer and the other is imposing punishment on those criminals discourages others from doing wrong. Crime and punishment are correlated as cause and effect and it is scientifically proven that to every action, there is a reaction.
Article 21 of the Indian Constitution says ‘No person shall be deprived of his life or personal liberty except as according to procedure established by law.’ This Article says the right to life is promised to every citizen in India. On the contrary, the Indian Penal Code provides a death sentence as a punishment for various offenses such as criminal conspiracy, murder, waging war against the government, abetment of mutiny, dacoit with murder, and anti-terrorism. Since independence, there have been fifty-two capital punishments that have taken place in India and twenty-two capital Punishments that have taken place since 1995.
Collation of Difference
The principle of Just Deserts has been characterized by Tim Scanlon that, Punishment should be proportional to the crime. A person who has committed a criminal wrong deserves to suffer loss, and it is the function of the system of punishment to impose that loss for the wrong done. To determine the deterrence effect of the death penalty, it is important to know the arguments of the retentionist country’s against the abolition of the death penalty as they say that “Death penalty is justified for the murderers by the principle of retribution because life imprisonment does not have an equal deterrence effect therefore not giving the death penalty to wrongdoer results in miscarriage of justice”.
Furthermore, 262nd Law Commission Report (2015) accordingly recommends that the death penalty be abolished for all crimes other than terrorism-related offenses and waging war and stated, “The death penalty does not serve the penological goal of deterrence more than life imprisonment”.
If we reckon into the statistics of State-wise distribution of the number of prisoners on death row – published by NLU Delhi in the year 2017 “the total number of prisoners on the death row till 2016 was 399 and it got declined in the year 2017 to 371”. On the other hand, if we look at Crime statistics published in 2017 by the National crime report bureau it stated crime against women which include offenses like dowry death, Rape, Domestic violence, Murder, Kidnapping, and Gang Rape have shown an inclined rate from the year 2015 to 2017 through we have life imprisonment as a punishment for these offenses but the crimes have significantly been increased.
So, whether the death penalty has a greater deterrence effect than life imprisonment remains unanswered.
A Judicial Paradigm
In the Code of Criminal Procedure, the death sentence was a rule and life imprisonment was an exception in capital offenses and whenever the court preferred to award a lesser sentence than death, judges were required to record reasons in writing under section 367(5) of Cr.PC., 1898 but after the recommendation of The 35th Report of Law Commission on Capital Punishment (1967), the Code of Criminal Procedure got amended and Section 354 (3) stated that in case of death sentence special reasons are to be stated. So, now life imprisonment is the rule, and the death sentence is an exception.
To understand the judicial shift of the courts for awarding death Sentences, it can be divided into three phases:
Phase I- Pre-Bacchan Singh;
Phase II- Bacchan Singh;
Phase III- Post-Bacchan Singh (Bacchan Singh is the case when real transition in the opinion of the judiciary can be observed)
Phase I – Pre-Bacchan Singh
In the case of Jag Mohan Singh V. State of U.P., The Supreme Court, in this case, Left the discretion upon the judge to fix the maximum penalty and stated that the imposition of the death sentence is the exercise of this discretion hence it is the matter of prudence and not of law. On the other hand, in the case of Rajendra Prasad vs. State of U.P, Justice Krishna Iyer – laid down emphasis on human rights and the concept of social justice it was held that capital punishment should only be given to the wrongdoer if there is a threat to the security of the state, public order and if it is against the interest of the general public.
Thus, Hon’ble Supreme Court is itself limiting the scope of discretion and it is observed from both landmark cases.
Phase II – Bacchan Singh
The judgment gives birth to the“rarest of the rare doctrine” and basing it on Gandhian theory, i.e., “hate the crime, not the criminal.” Hence death penalty should be awarded rarely and only in such cases which are heinous, affecting humanity, and shocks the conscience of the people in the society.
A death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime.
Macchi Singh vs. State of Punjab – The Supreme Court in consonance with the rarest of the rare doctrine gave parameters that should be utilized by courts, which are –
Manner of Commission of murder When the murder is committed in an extremely brutal manner and give rise to extreme indignation in the community,
Motive When the murder is committed for a motive that evinces depravity and meanness
Anti-social or socially abhorrent nature of the crime Social wrath, or abhorrent nature of crime like bride burning for dowry, or remarriage.
The magnitude of the Crime Crimes of enormous proportion like multiple murders of a family or persons of a particular caste, community, or locality. The personality of a victim of murder – When the victim is an innocent child, a helpless woman, a public figure generally held and respected – whose murder is committed for political or similar reasons other than personal reasons.
Phase III – Post-Bacchan Singh
Though the Macchi Singh case gave guidelines for the cases to be considered under “rarest of the rare doctrine” but courts remain inconsistent in its approach and it can be observed from the cases of Manohar Singh vs. State of M.P, the accused, simply to gratify his greed, caused the death of an old man and attempted to murder another old and helpless person, was not held as a rarest of rare case.
In the case of Panchi vs. the State of U.P, The Accused persons armed with sharp-edged weapons, entered the house of deceased persons & butchered four persons to death including a five years old child and an old lady mercilessly, the Supreme Court held that the appellants deserved the death sentence.
In the case of Suresh Chand Bahri vs. State of Bihar, a conspiracy hatched by the husband with his two associates to kill his wife & two children simply to gain control over the property. The victim’s body was found, bifurcated into two parts the Court held such a case as rarest of rare case & justified the High Court in confirming the death penalty.
In the case of Sheikh Ishaque vs. State of Bihar, the accused Murdered three persons by burning them with the help of kerosene inside a shop, absence of material on record failed to identify the actual appellant but the court had sufficient proof that appellants were armed with bombs through Supreme Court held that in death sentence is not justified in such circumstances.
It will thus be seen that the exercise of discretion whether to inflict the death penalty or not depends on the philosophy of the Judges constituting the Bench. And that the court definition of rarest of rare case opined in the case of Macchi Singh vs. State of Punjab is insufficient and blurred. Hence we need explicit and well-defined guidelines for considering a case under “rarest of the rare doctrine”
Delay – A Ground For Commutation
In the case of Shatrughan Chauhan vs. Union of India, Supreme Court held that a delay in carrying out the death sentence was, indeed, one ground for commutation; but The Court, however, refused to provide a specific time after which a delay would render commutation necessary, and held that 14 days should be a minimum number of days for the execution.
Thereby the court made delay an essential mitigating factor before awarding the death sentence. This would be considered on the Court’s “balance sheet” inquiry, under which it draws up a list of aggravating and mitigating factors, in order to decide whether or not to award the death penalty in a particular case.
Supreme Court in the case of Jagdish Vs. State of M.P stated that “the deterrent value of death during the period of uncertainty may be well compared to the consequences of the ultimate step itself” if the execution of the death row convict is delayed for a long time then awarding him death sentence is needless and pointless.
Hence, a court should formulate a particular time frame and consideration of possible circumstances under which delay would render the commutation necessary for the convicted person. If the accused person at the time of the commission of the offense was an adult but due to poor procedural legislative framework his execution has been delayed and by the time the convicted person was about to be executed, he grows old, then there is no point of giving him the death penalty.
The ideal punishment is when the maximum social benefit is achieved, at the cost of minimum social harm. Therefore, a death sentence should only be given in the case of necessity. Since there is inconsistency in the approach of the courts for awarding death sentence. There is an urgent need to examine the effect of the capital punishment system in its entirety including social, economic, and psychological impacts that shape the life of a person. Since the death sentence is the only sentence that cannot be revoked once executed court remains in dilemma at the time of dealing with the cases of the death penalty. The time has come where we need to shift our attention from following a liberal approach to a stringent approach and give severe punishments.
Considering the increasing rate of heinous crimes being committed, there is an urgent need to reaffirm 187th Law Commission Report on the Mode of Execution (2003) – where the commission suggested lethal injection should be provided as an alternative mode of execution of death sentence along with the existing mode of execution of death that is ‘hanging by neck till death’ as provided in section 354(5) of the Cr.PC, 1973. Therefore, punishments of such nature are encouraged for the commission of heinous crimes like terrorism and Aggravated Sexual violence which shock the conscience of the society.
Editor’s Note The author of the article has discussed capital punishment or the death penalty in relation to the theory of deterrence. The author has utilized judicial reasoning from numerous cases to elucidate the mode and instances of the court granting capital punishment. The author has also traced the evolution of capital punishment through various law-commission reports and statistics. The article analyses the impact of deterrence on crime through capital punishment/death penalty.