The Death Penalty in India: Revisited

By Atreya Chakraborty

Since time immemorial, the subject-matter of death penalty has been at the centre of sustained legal discourse and deliberation all over the world. Even though the nature of arguments, both advancing and assailing the retention of such form of punishment, has not undergone a substantial amount of change, a fresh consideration of these arguments seems necessary. More so in the Indian perspective in light of the re-ignition of the debate surrounding death penalty or capital punishment subsequent to the execution of the Nirbhaya case convicts earlier this year.

The Issues of Unguided discretion and inconsistency in the imposition of death penalty: 

The constitutionality of death penalty was challenged for the first time in the matter of Jagmohan v. State of Uttar Pradesh[1]. While other grounds of challenge were also instituted, for now, it shall be prudent to deliberate on the contention that discretion vested in judges in deciding the imposition of death penalty was uncontrolled and unguided and therefore, violative of Article 14 of the Indian Constitution.[2] In dealing with the said contention, the Supreme Court had alluded to the setting up of a Royal Commission in England which failed in its mandated task of prescribing straightforward principles for determining circumstances warranting death penalty.[3] Furthermore, the Supreme Court had ruled in paragraph 26 of its judgment that since the impossibility of laying down standards is at the very core of the criminal law as administered in India, the exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.[4]

Even though, one may rely upon the aforesaid ruling to support the vesting of discretion upon judges in relation to the imposition of death penalty, the Apex Court itself, voiced its concern regarding such unregulated vesting of discretion in the matter of Ediga Anamma v. State Andhra Pradesh.[5] In the said matter, the Apex Court noted the following in paragraph 26 of the judgment:

“a legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”[6]

At the same time, it is well-settled that it is not possible to recommend a uniform set of principles to govern judicial discretion and the imposition of punishment. However, the erudite reasoning provided by the Apex Court in favour of conferment of wide discretion and the requirement of compulsory sentencing hearing post the 1973 amendment to the Criminal Procedure Code[7] do not quell the fear of irregular exercise of such discretion in its entirety.

The Apex Court, in the matter of Bachan Singh v. State of Punjab[8], had ruled that death penalty or capital punishment should be imposed only in the “rarest of the rare” cases. Indisputably, discretion exercised by the Court in making a choice between capital punishment and life imprisonment has always been tempered with humane concern and compassion. The extreme infrequency of imposition of death penalty bears testament to the caution with which the Courts have proceeded in imposing the ultimate penalty upon a convict. Irrespective of such safeguards, we cannot ignore that the working of the “rarest of rare” doctrine based on the consideration of the mitigating and aggravating circumstances, has often been fraught with concerns of arbitrariness and judicial inconsistency.

For instance, as reported in paragraph 5.2.1 of the 262^nd Report of the Law Commission of India[9] The Hon’ble Apex Court has itself, in the matter of  Aloke Nath Dutta v. State of West Bengal[10], Swamy Shraddhananda v. State of Karnataka[11], Santosh Bariyar v. State of Maharashtra[12] and so on, acknowledged that that the application of the death penalty is subjective and arbitrary.

In the matter of Bachan Singh v. State of Punjab[13], Bhagwati J. in his dissenting judgment had observed that there are innumerable cases bearing similar factual situations but the award of sentence as to life imprisonment or death penalty varies in each of these cases. Here, one may consider the matters of Dhananjoy Chatterjee v. State of West Bengal[14] and Rameshbhai Chandubhai Rathod[15] side by side. In the former case, the convict was 27 years old at the time of his execution for the rape and murder of an 18 year old woman. Notably, in the latter case, the 28 year old convict guilty of similar crimes, was not given the death penalty because his age was viewed as a mitigating factor.[16]

Thus, it may so appear that even though the factual matrix and the crime committed in both cases appear to be considerably similar, punishment was imposed differently. However, irrespective of such prima facie similarity, it would be imprudent to assume that all factors which might have been capable of swaying the judicial mind of the Court in deciding on the degree of punishment, were exactly the same in both cases because “…There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation.”[17]

The Issue of Deterrent Value:

The assumption behind the deterrent theory of punishment is that since all persons are rational individuals, they will commit a crime only if they perceive that the gain derived from the criminal act will be greater than the pain they will suffer from its penal consequences.[18] The operation of deterrence is strengthened when the punishment is made as severe as death itself; no person, who thinks rationally would commit an act which may result in the loss of one’s life.[19]

Reflecting on the deterrent value of capital punishment, the Supreme Court of India, speaking through V.R. Krishna Iyer had observed that “….Social justice has many facets and Judges have a sensitive, secular and civilising role in suppressing grievous injustice to humanist values by inflicting condign punishment on dangerous deviants.”[20]

Furthermore, in Ediga Anamma (supra)[21], it was observed that deterrence through the threat of death may still be an effective measure in preventing future occurrences of murderous crimes.

Such reliance upon the deterrent value is not free from criticism as there is no concrete evidence which suggests that death penalty has an assured deterrent value. A panel set up by the National Academy of Sciences in the United States of America, found Isaac Ehrlich’s path-breaking study on the deterrent value of death penalty, relied upon by the Supreme Court in Bachan Singh (supra), to be devoid of any useful evidence on the deterrent effect of capital punishment.[22] Such an opinion stands supported by another independent study conducted by Donohue and Wolfers.[23]

Fear of Miscarriage of Justice:

Arguably, the presence of the system of appeals and legal provisioning for a separate hearing on deciding the extent of sentencing are reasonable safeguards against the possibility of miscarriage of justice. However one cannot help but note that the Supreme Court itself has admitted error in imposing the death penalty on 16 persons out of the total of 69 who were given the death penalty by the Court in the period between 2000 to 2013. This is an error rate of 23.2%.[24]

Such acknowledgment of error in the imposition of death penalty coincides with the oft preferred argument of the abolitionists that since the criminal justice system is comprised of human beings, chances of miscarriage of justice will always be present.

Conclusion:

Author Philip Smith, in his inimitable style, had said ‘‘Punishment is a deeply meaningful activity that still needs to be interpreted if it is to be understood.’’ [25]Similarly, the extent of legal discourse regarding the subject of death penalty being very vast and expansive, a foolproof interpretation and by consequence thereof, an immaculate understanding of the need, viability and effect of using death penalty as a mode of punishment cannot be derived only from the preceding. Even though the aforesaid discussion brings to light certain exigent criticisms against the use of death penalty, one cannot turn a blind eye to the fact that death penalty as a mode of punishment has repeatedly passed the test of constitutionality. Therefore, it would be foolhardy to assume that in each of the instances wherein the constitutionality of such form of punishment has been upheld, the criticisms brought to light as a result of the afore stated discussion or otherwise, have been outrightly ignored by the respective Courts.

Moreover, each and every decree of death penalty bears a painful testimony to the growing cruelty in the minds of the people.

To conclude, I would like to put forward two questions: First: Is it prudent to continue with a mode of punishment, which is fraught with criticisms of arbitrariness and ineffectiveness? And second: In the absence of the death penalty, what would be the appropriate form of punishment for those convicted of diabolical and unimaginable crimes that shake the collective conscience of the society but show no semblance of remorse?

The author is a third year law student, pursuing their degree from the Department of Law, University of Calcutta.

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[1] Jagmohan v. State of Uttar Pradesh (1973) 1 SCC 248.

[2] INDIA CONST. art. 14.

[3] A. LAKSHMINATH, JUDICIAL PROCESS AND PRECEDENT 476 (Eastern Book Company 2019).

[4] Jagmohan v. State of Uttar Pradesh (1973) 1 SCC 248.

[5] Ediga Anamma v. State of Andhra Pradesh (1974) 4 SCC 443.

[6] Id.

[7] Code of Criminal Procedure, 1973, § 235(2), No. 2, Acts of Parliament, 1974 (India).

[8] Bachan Singh v. State of Punjab (1980) 2 SCC 684.

[9] Law Commission of India, 262^nd Report, 2015, at ¶ 5.2.1.

[10] Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC 230.

[11] Shraddhananda v. State of Karnataka (2008) 13 SCC 767.

[12] Santosh Bariyar v. State of Maharashtra (2009) 6 SCC 498.

[13] Bachan Singh v. State of Punjab (1980) 2 SCC 684.

[14] Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220.

[15] Rameshbhai Chandubhai v. State of Gujarat (2011) 2 SCC 764.

[16] Law Commission of India, 262^nd Report, 2015, at ¶ 5.2.33.

[17] Bachan Singh v. State of Punjab (1980) 2 SCC 684.

[18] ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 71 (Cambridge University Press 2005).

[19] Ernest Haag, The Ultimate Punishment- a Defense, 99 Harvard Law Review 1662, 1666 (1986).

[20] Bachan Singh v. State of Punjab (1980) 2 SCC 684.

[21] Ediga Anamma v. State of Andhra Pradesh (1974) 4 SCC 443.

[22] Lawrence R. Klein, Brian Forst & Victor Filatov, The Deterrent Effect of Capital Punishment: An Assessment of the Estimates (1976).

[23] John Donohue and Justin Wolfers, Uses And Abuses Of Emperical Evidence In The Death Penalty Debate, 58 STAN. L. REV. 791, 794 (2005).

[24] Law Commission of India, 262^nd Report, 2015, at ¶ 5.4.11.

[25] PHILIP SMITH, PUNISHMENT AND CULTURE 187 (University of Chicago Press 2008).