Death Penalty as a Punishment: The Debate

The main aim of this research project is to evaluate the efficacy of death penalty as a punishment. The researcher has tried her best to do an objective study on the topic, without any subjectivity or personal biases or prejudices. Since this is a sensitive topic and different schools of thought have different opinion about capital punishment, the researcher has tried to analyse and understand the pros and cons of such an extreme form of punishment. Jurisprudential and sociological aspects of such kind of punishment have also been looked into.

Scope and Limitations

The scope of this project ranges from a positive analysis of the sources available regarding the topic, to a comparison to its antecedent, and conclude with a normative analysis. The limitation that might be evident would be the limited understanding of the author as to the technical details encountered while dealing with the topic and the limited availability of sources. Due to paucity of time and sources of information, the researcher has been able to present a brief but comprehensive analysis of the topic and procedural law involved, while acknowledging the fact that a further in depth analysis would provide greater understanding, clarity and knowledge about the applicability and working of this area of law. Since the topic concerns the society as well, the sociological implications have also been highlighted.

Sources of Data

Primarily the researcher has relied on books available in the AMITY Law School library. The researcher has also tried to utilise the resources, articles, e-books available on the internet.

Chapter I: Introduction

Capital punishment is the harshest of punishments provided in the Indian Penal Code, which involves the judicial killing or taking the life of the accused as a form of punishment. The question of whether the state has the right to take the life of a person, howsoever gruesome the offence he may have committed, has always been a contested issue between moralists who feel that the death sentence is required as a deterrent measure, and the progressive who argue the judicial taking of life is nothing else but court mandated murder. [1]

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It is clear that capital punishment is awarded only in two categories of offences, namely treason and murder. However, the judges, in the offences punishable with sentence of death and alternatively with life imprisonment have to make critical choice between the two permissible punitive alternatives, viz , death sentence and imprisonment for life. When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for a term of years , the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.

1.1 Constitutional validity of death penalty

The constitutional validity of death penalty was considered by a Constitutional Bench of the Supreme Court in Bachan Singh v. State of Punjab [2] . The reference to the Constitutional Bench came about, as the Bench hearing the case noticed that there was a conflict between two rulings of the Supreme Court on the issue of the validity and scope of the provision that imposed death penalty. The two cases were the rulings in Jagmohan v. State of Uttar Pradesh [3], which declared death penalty to be constitutionally valid, and the ruling of another three-member bench in Rajendra Prasad v State of Uttar Pradesh [4] , in which a majority of two judges, ruled that when the trial court comes to a conclusion that the accused is guilty of murder, then the state through the prosecutor should be called upon by the court to state whether the extreme penalty is called for ; and if the answer is in the positive, the court shall upon the prosecutor to establish , if necessary by leading evidence, facts for seeking the extreme penalty of law.

The majority ruling went on to state the principle guiding the imposition of death sentence as follows:

It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with even more scrupulous care and humane concern, directed along the highroads of legislative policy outlined in section 354(3) viz, that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. [5]

Bhagwati J delivered the minority ruling, holding that s 302, in so far as it provides for death penalty as an alternative to life sentence, is unconstitutional and ultra vires, and violative of articles14 and 21 of the constitution. His opinion, however, was delivered after nearly two years. [6]

1.2 Media’s influence

The influence of media coverage in brining the death penalty is especially strong. “The feedback loop is especially visible at the legislative juncture, when crime control policies are made at the prosecutorial juncture, when discretion about capital charging is at work; and at the adjudicative juncture, when both judge and jury must make difficult decision about sentencing”. [7]

Mass Media has got great capability to influence any judgment that comes into scene. The infamous case of death penalty execution of Dhananjoy Chatterjee’s [8] was, perhaps, the first televised execution in the history of Indian media. Chatterjee, who was sentenced to death in 1991, for raping and murdering a schoolgirl, Hetal Parekh, was finally hanged on August 14, 2004 after the Supreme Court denied his mercy petition. Through these past 14 years, he served a term in Alipur Jail in Kolkata. The case would have otherwise gone down in history as another Supreme Court ruling, but for the hue and cry raised by the various segments of the media and the civil society.

As a result, what should have been an understated, unpublicized execution became the most talked about verdict in the judicial history of the world’s largest democracy.

The arguments pitted against and in favor of the sentence were equally appalling. There were the human rights activists who strongly condemned the sentence on the grounds of mercy, claiming that since the accused had already served a life imprisonment term, executing him amounted to injustice. Supporting such groups was a section of the media, which, quite literally ‘participated’ in the killing of the accused.

Twenty-four hour television news channels brought alive the anguish of the accused by streaming live visuals of the accused, his movements and actions, until he was led to the gallows. Those private last moments, which an accused is entitled to, were thrown open to public scrutiny. Senior journalist Vir Singhvi wrote in the Aug. 29 issue of the Hindustan Times Daily (centrist)-

“Many people I know who were supporters of the death penalty suddenly began to have second thoughts as the drama unfolded on the TV channels. They felt as though they themselves were participating in killing a poor man. It was a guilt that many felt they could do without.”

It was horrendous to watch people deriving a sadistic pleasure and making a spectacle out of a death sentence. All this, combined with the depiction of the family’s trauma, generated a wave of sympathy among the masses, hence creating a pseudo-celebrity out of Chatterjee. [9]

In another case of execution of accused Santosh Singh in the case of Priyadarshini Matto, none of us really know if the accused is actually guilty or not, but the trial by media as already pronounced him guilty of the offence, and hence when the judgment was finally given by the court of law, all the people celebrated. Right after the incident, the media trial begins and all media entities- print or electronic- more or less have similar focus in their stories. Worse, they even pronounce their judgment, which usually goes against the accused or the suspect.  With almost a propaganda-like zeal, the story is presented to the viewers as if the accused is really the culprit. In cases where the charge is not proved in the court, there are SMS campaigns, blogging outrages, candle-lit processions, and rallies to mobilize the citizens against the “injustice” done by the courts and to put the pressure on the appellate court. [10]

Therefore to put it, Law and media coexist and overlap in the modern society. People create their opinion, drop their conclusions guided by the information they get from mass media and very seldom think about the credibility of this information. In modern society, the impact of mass media is so big that it not only passes the legal norms to the population, but also has the power to influence or even change them. Receiving publicity can become a serious problem for death eligible cases as from the role of observer mass media becomes an active participant of the trial. If death penalty is appointed, the media doesn’t leave any chance to the charged person and the appellate procedure is usually illuminated as an annoying delay on the way to the climax – execution. These questions can raise unnecessary doubts in the minds of people and spoil dramatic effect, so diligently created. Another peculiar feature of mass media’s covering the death issue is the lack of defensive evidence, if any presented to the wide audience.

The main line of narration is usually lead from the part of prosecution – they have more TV air and spaces in the magazines and newspapers. Defense doesn’t have these privileges.

Very seldom journalists try to show compassion to criminals. Another interesting feature is that mass media tries to avoid the direct formulations, when talking about the death itself, trying to use phrases like “came to meet death”, “went to his final journey”, etc. They are usually afraid to minimize the sufferings of the victim, by showing any humanity to putative criminal. To be just, there are rare cases, when the topic innocent person unfairly condemned is speculated, but these cases are rare and cannot be regarded as general tendency. “The role of denunciator conflicts with media’s role of impartial chronicles”. Complicated or ambiguous cases are not so popular among the media, as they need context, complex explanations and event chains and let multi-faceted interpretations. Media becomes a transitional point, which passes emotion from the courtroom to average observer. We get a loop here – trying to answer the needs of the audience, mass media tries to search for the facts, which would appeal most of all to this public. At the same time, collecting such facts, media influences public opinion. The main difficulty lies in the fact, that media prefers a selective depiction of events and the selective emotional background for their coverage. Feelings of compassion, mercy and sorrow to victims aren’t accompanied by even the smallest effort to display compassion to the convicted person. The crime and criminal himself become the incarnation of encroachment on the social legislative norms and stability.

Chapter II: Case Laws Relating To Capital Punishment Execution In India

2.1 Dhananjoy Chatterjee alias Dhana v. State of West Bengal. [11]

The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless state of the victim. Justice demands that the courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of victim of crime and the society at large while considering imposition of appropriate punishment [12]

2.2 Sushil Murmu v. State of Jharkhand [13].

In this case, the S.C. was called upon to adjudge the proprietary of death sentence for sacrificing a nine year old child in the most brutal manner. The child was killed in a grotesque and revolting manner. The court declared that the case at hand falls in rarest of rare category of cases. It, therefore, upheld the death sentence awarded to the convict.

2.3 State of Maharashtra v. Ajmal Aamir Kasab.

In this case quarters of media have tremendously supported the execution of Kasab and there are others who vehemently oppose the execution. The points against the execution are Capital punishment is a barbaric remnant of an uncivilized society. It is immoral in principle, and unfair and discriminatory in practice. The judgment is still pending before the H.C.

2.4 Jai Kumar v State of Madhya Pradesh [14]

In this case the accused Jai Kumar was sentenced to death by the trial court for having killed his sister-in-law, who was pregnant, and her eight-year old daughter in the night of 7 January 1997, allegedly for the reason that he had become enraged because his sister-in-law had not given him enough food. However, his own mother tendered evidence that he had made an attempt to rape the deceased sister-in-law, and encountering resistance from her, committed the crime. The manner in which he committed the offence was gruesome. He locked his mother inside a room, and thereafter went into the room of the deceased by removing the bricks near the door, going into the room and killing her. After that he decapitated her head and hung it from a tree in a jungle nearby. He had also taken the eight-year old daughter of the deceased and killed her with an axe saying that he was offering her as a sacrifice to Mahuva Maharaj and thereafter buried her in sand, covered with stones. The Supreme Court noted that the mitigating factors were hardly sufficient to balance out the aggravating circumstances. In the present case, the savage nature of the crime has shocked our judicial conscience. The murder was cold-blooded and brutal without any provocation. It certainly makes it a rarest of rare case in which there are no mitigating or extenuating circumstances. [15]

2.5 Suresh Chandra Bahri v State of Bihar [16]

In this case, the accused was alleged to have conspired with several others to kill one Suresh Bahri’s wife and two young children. The main grouse that Suresh Bahri had against his wife was that she was interfering in his property dealings and wanted to sell their Ranchi house so that they could migrate to America with the sale proceeds and settle there with the children. The main accused enticed her to come to Ranchi from Delhi on the pretext that a sale deed for selling the house was to be executed on 11th October, 1983, and killed her on the night of the 10 October itself. The evidence disclosed that the murder was committed in an extremely brutal, diabolical, gruesome manner. Her body was then cut into two and disposed. Similarly, the two children were taken to a farm house after telling them that they were going for a pleasure trip, and killed there. Their bodies were cut into pieces and thrown into Varuna River. Considering the fact that it was the father himself who had committed such gruesome murder, the Supreme Court confirmed the death sentence as the matter came into the ‘rarest of rare’ categories.

2.6 Jagdish v. State of Madhya Pradesh

In Jagdish v. State of Madhya Pradesh, [17] the apex court quoted the US Supreme Court and was of the view that,

“the cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution” and that “the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.” [18]

The Supreme Court quoted a few decided cases in this case as well.  In T.V.Vatheeswaran v. State of Tamil Nadu [19] and Ediga Anamma v. State of Andhra Pradesh [20] it has been held that a delay of two years was permissible beyond which the sentence ought to be converted to life. In Bhagwan Bux Singh. v. The State of U.P. [21] similar observations were made with respect to a delay of two and a half years and in Sadhu Singh v. State of U.P. [22] to a delay of three and a half years.

2.7 Vivian Rodrick v. The State of West Bengal

In Vivian Rodrick v. The State of West Bengal, [23] the Supreme Court said that,

“It seems to us that the extremely excessive delay in the disposal of the case of the appellant would by itself be sufficient for imposing a lesser sentence of imprisonment for life under Section 302. Section 302, IPC prescribes two alternate sentences, namely, death sentence or imprisonment for life, and when there has been inordinate delay in the disposal of the appeal by the High Court it seems to us that it is a relevant factor for the High Court to take into consideration for imposing the lesser sentence. In this particular case, as pointed out above, the appellant was committed to trial by the Presidency Magistrate as early as July 31, 1963, and he was convicted by the Trial Judge on September 4, 1964. It is now January 1971, and the appellant has been for more than six years under the fear of sentence of death. This must have caused him unimaginable mental agony. In our opinion, it would be inhuman to make him suffer till the Government decides the matter on a mercy petition. We consider that this now a fit case for awarding the sentence of imprisonment for life. Accordingly, we accept the appeal, set aside the order of the High Court awarding death sentence and award a sentence of imprisonment for life. The sentences under Section 148, IPC and Section 5 of the Explosive Substances Act ”

Chapter III: Jurisprudential and Sociological Aspects

3.1 Jurisprudential Aspects

Everyone has an inalienable human right to life, even those who commit murder; sentencing a person to death and executing them violates that right. This is very similar to the ‘value of life’ argument, but approached from the perspective of human rights. The counter-argument is that a person can, by their actions, forfeit human rights, and that murderers forfeit their right to life.

Another example will make this clear – a person forfeits their right to life if they start a murderous attack and the only way the victim can save their own life is by killing the attacker.

The medieval philosopher and theologian Thomas Aquinas made this point very clearly:

“Therefore if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good… Therefore to kill a man who retains his natural worthiness is intrinsically evil, although it may be justifiable to kill a sinner just as it is to kill a beast, for, as Aristotle points out, an evil man is worse than a beast and more harmful”. [24]

Aquinas is saying that certain contexts change a bad act (killing) into a good act (killing to repair the violation of justice done by the person killed, and killing a person who has forfeited their natural worthiness by killing). The most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system. Witnesses, (where they are part of the process), prosecutors and jurors can all make mistakes. When this is coupled with flaws in the system it is inevitable that innocent people will be convicted of crimes. Where capital punishment is used such mistakes cannot be put right. There is ample evidence that such mistakes are possible – in the USA, 116 people sentenced to death have been found innocent since 1973 and released from death row. The average time on death row before these exonerations was 9 years.

Things were made worse in the USA when the Supreme Court refused to hold explicitly that the execution of a defendant in the face of significant evidence of innocence would be unconstitutional. However many US lawyers believe that in practice the court would not permit an execution in a case demonstrating persuasive evidence of “actual innocence”.

3.2 Sociological Aspects

If we look from a sociologist perspective, it is an accepted notion that, the criminal should be punished less, but punished better. Killing him would be a very extreme form of punishment and would not serve any ends. It is neither beneficial to the society nor to the criminal. Michel Foucault, a well known sociologist, says that the criminals must be Disciplined and Punished (D and P). According to him, D and P is a study of the development of the “gentler” modern way of imprisoning criminals rather than torturing or killing them. [25] He pointed to the shift, which took place at the turn of the 18th century, from punishment as the public infliction of pain to punishment as incarceration. While recognizing the element of genuinely enlightened reform, he particularly emphasizes how such reform also becomes a vehicle of more effective control: “to punish less, perhaps; but certainly to punish better”. [26]

The Supreme Court in the case of Jagdish v. State of Madhya Pradesh, [27] relied on a sociologist’s opinion. The court quoted Robert Johnson,

“Death row is barren and uninviting. The death row inmate must contend with a segregated environment marked by immobility, reduced stimulation, and the prospect of harassment by staff. There is also the risk that visits from loved ones will become increasingly rate, for the man who is “civilly dead” is often abandoned by the living. The condemned prisoner’s ordeal is usually a lonely one and must be met largely through his own resources. The uncertainties of his case – pending appeals, unanswered bids for commutation, possible changes in the law – may aggravate adjustment problems. A continuing and pressing concern is whether one will join the substantial minority who obtain a reprieve or will be counted among the to-be-dead. Uncertainty may make the dilemma of the death row inmate more complicated than simply choosing between maintaining hope or surrendering to despair. The condemned can afford neither alternative, but must nurture both a desire to life and an acceptance of imminent death. As revealed in the suffering of terminally ill patients, this is an extremely difficult task, one in which resources afforded by family or those within the institutional context may prove critical to the persons’s adjustment. The death row inmate must achieve equilibrium with few coping supports. In the process, he must somehow maintain his dignity and integrity.

Death row is a prison within a prison, physically and socially isolated from the prison community and the outside world. Condemned prisoners life twenty-three and one-half hours alone in their cells…..” [28]

Penologists and medical experts agreed that the process of carrying out a verdict of death is often as degrading and brutalizing to the human spirit as to constitute psychological torture. Relying on Coleman vs. Balkcom, [29] observed that

“the deterrent value of incarceration during that period of uncertainty may well be comparable to the consequences of the ultimate step itself” and when the death penalty “ceases realistically to further these purposes,…..its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

The Courts have, however, drawn a distinction whereby the accused himself has been responsible for the delay by misuse of the judicial process but the time taken by the accused in pursuing legal and constitutional remedies cannot be taken against him.

Chapter IV: Death Penalty Statutes

The Terrorist and Disruptive Activities (Prevention) Act (TADA) which was first enacted in 1985 and reenacted in 1987 provides for death penalty as an alternative punishment for the commission of a terrorist act. [30] Despite the non-renewal of TADA by the parliament after 1995, resulting in its lapse [31] , a large number of trials under TADA still await completion. A death sentence recommended in the first instance by the designated court trying the case under TADA becomes final when confirmed at the next level by the Supreme Court, there being no appeal against such confirmation of sentence. [32]

The Indian Penal Code prescribes death penalty as an alternative punishment to life imprisonment for eleven kinds of offences, the recent one being introduced by an amendment in 1993. [33]

Section 3(2) (i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is another provision, which prescribes a mandatory death sentence. It states that : “if an innocent member of a Scheduled Caste or of Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such evidence shall be punished with death.” [34]

The Commission of Sati (Prevention) Act, 1987 provides for death penalty among the punishments that maybe imposed on any person who abets, directly or indirectly, the commission of sati. The National Security Guards Act, 1986, and the Indo-Tibetan Border Police Act, 1992 both prescribe the death sentence as an alternative punishment for defined offences committed by members of the two armed forces.

The Abortive attempts by Tamil Nadu and Andhra Pradesh to enact special laws to deal with terrorism, both providing for death penalty, are pointers to the popular belief that retribution and deterrence are desired goals of punishment. This also explains the demand by the Home Minister, in which he is stated to have the support of many state governments, that death penalty be prescribed as a punishment for rape. [35]

The baying for blood as a shrill cry of retribution is not a new phenomena. It was not too far in the past that the Rajasthan High Court ordered the public hanging of a mother-in-law whom it found guilty of causing a dowry death. [36]

In Mahesh v. Madhya Pradesh [37] , which was a case of multiple murders committed in a brutal manner, the court said : ” it’ll be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment would be to render the justice system of this country suspect. The common man will lose faith in courts. In such cases he understands and appreciates the language of deterrence more than the reformative jargon.”

Chapter V: Capital Punishment, Execution Publicity

Punishment is not inflicted by a rational man for the sake of the crime that has been committed; after all one cannot undo what is past, but for the sake of the future, to prevent either the same man or, by the spectacle of his punishment, someone else, from doing wrong again. Healthy debate persists as to the deterrent effect of capital punishment. Although an expansive and diverse body of research has accumulated that examines the effect of executions or execution publicity on murder rates, this research affords few definitive conclusions. On one hand, there is evidence that executions reduce murder levels. On the other hand, several studies fail to discern convincing evidence of a relationship. Still others find a positive association. These inconsistencies in the literature raise methodological issues, some of which are grounded in theoretical arguments. Perhaps the most serious concern is specifying the true nature of the causal relationship between capital punishment and murder rates. Most previous studies estimated only unidirectional relationships. The question of salience, however, is whether recursive models portray the relations among the variables of interest accurately. Another issue relates to the geographical unit of analysis best suited for evincing deterrence effects. Whereas most prior studies relied on state or national level data to assess the deterrent effect of capital punishment, a high level of aggregation may not fully capture the ecological dynamics that are hypothesized to underlie deterrence theory. [38]

With the emergence of the media as a powerful source of information and education, its role in the dispensation of justice has also become significant. The judiciary and media have rather become partners in dispensation of justice as media enjoys the privilege to investigate crimes and to act as a catalyst in the dispensation of justice. Media and Justice are now synonymous; because the media’s endeavour to unearth and focus on crime is primarily motivated by its cherished desire to project truth and seek justice. Media , truth, justice , are thus, inter-related. [39]

5.1 Arguments FOR and AGAINST capital punishment, as presented by execution publicity.

Capital punishment permanently removes around the worst criminals from society and should prove much safer for the rest of us than long term or permanent incarceration. It is self evident that dead criminals cannot commit any further crimes, either within prison or after escaping or after being released from it. Execution is a very real punishment rather than some form of “rehabilitative” treatment, the criminal is made to suffer in proportion to the offence. Although whether there is a place in a modern society for the old fashioned principal of “lex talens” (an eye for an eye), is a matter of personal opinion. Retribution is seen by many as an acceptable reason for the death penalty according to my survey results. It is hard to prove one way or the other because in most retentionist countries the number of people actually executed per year (as compared to those sentenced to death) is usually a very small proportion.  It would, however, seem that in those countries (e.g. Singapore) which almost always carry out death sentences, there is far less serious crime. This tends to indicate that the death penalty is a deterrent, but only where execution is a virtual certainty.  The death penalty is much more likely to be a deterrent where the crime requires planning and the potential criminal has time to think about the