“It is better that ten guilty persons escape than that one innocent suffers.” -Blackstone’s formulation The abolishment of execution of capital punishment in practice or merely in law has been conducted in more than 70% of the countries globally and yet, only about 35 countries practice death penalty for individuals who are either sentenced to death or execute as per the punishment awarded by the courts for the plethora of crimes after following the due process of law and imposing damnation in consonance with the prevalent statutes. In India, 18 Central legislations encompass 59 provisions which prescribe capital punishment. According to information on capital punishment, as many as 724 detainees have been executed in India since 1947. Half of these are represented by Uttar Pradesh, trailed by Haryana at 90, and Madhya Pradesh with 73 executions.
The Death Penalty Project further reports that out of all the statutes that provide for the death sentence, only 7 of the said legislations were invoked to sentence the prisoners. The Indian Penal Code, 1860 was invoked most often to sentence individuals to death and it includes convictions under terrorism laws. Broadly, the heads of offences under which the prisoners were sentenced to death included Murder, Sexual Offences (including cases where the charges of murder were coupled with rape or otherwise cases involving a repeat rape offender punishable with death under Section 376E of the Indian Penal Code), Kidnapping or Dacoity with murder.
Surprisingly, there was one death penalty imposed under each, the Border Security Force Act, 1968, and the Army Act, 1950 respectively. However, capital punishment or death sentence continues to remain a highly controversial topic worldwide. Supporters of capital punishment believe that such punishments deter crimes and, more often believe that certain gruesome or heinous crimes eliminate a person’s right to life. On the other hand, advocates of abolishing capital punishment argue firstly, that nobody has been bestowed with the right to take away somebody’s life. Even the State, which is the ultimate guardian of the right to life, cannot take a life for any reason. Secondly, the threat of capital punishment will not deter a person from committing a crime. For instance, even post the conviction and the execution of offenders in the infamous 2012 Delhi gang-rape, there has not been any significant drop in the cases of crime against women. Perhaps capital punishment is not much of a deterrent. This is the likely reason as to why we continue to hear about incidences such as the 2019 Hyderabad gang-rape or the very recent Bois Locker Room incident even after the execution of offenders in the Delhi gang-rape case. That said, the death penalty per se involves complex moral and legal questions such as the sanctity of the penological justifications for the capital punishment, or the evidentiary, procedural and sentencing related issues in judicial proceedings, or the mental health of accused amongst issues such the socio-economic background of accused persons and their ability to access justice, including the adequate legal representation required to deal with such cases at all levels.
A well-balanced criminal justice system mandates a strong correlation between the justification of punishment, the extent of the substantive law, and the corresponding procedures required to determine guilt. These justifications, which include deterrence, retribution, prevention, rehabilitation, and incapacitation, are paramount to understand the basis of imposing death sentence. The most commonly expressed justification provides that capital punishment acts as a “deterrent” to crime. However, such efficacy has been challenged by numerous comprehensive empirical studies that have categorically denied any correlation between the rate of crime and the death penalty, including the Death Penalty Project. Interestingly, there were about 8 executions for murder between 1990-2000, however, the incidences of murders constantly increased from 35,045 to 37,399. On the contrary, while the incidences of murder decreased from 37,399 in 2000 to 33,335 in 2010, only one person was executed in the entire period. A similar situation persists in relation to sexual offences, i.e., even after introducing capital punishment, there is a sharp escalation by 31% from 2017 to 2018 in crime against women as per the data of the National Crime Records Bureau (NCRB). Similarly, Retribution or the Just Deserts theory, which is often viewed as society’s “revenge” for moral wrongdoing by an individual provides that capital punishment is an acceptable punishment as those individuals who commit such offences should be executed in retribution for their actions and such retribution aptly encapsulates the justice for the victims of such crimes. Simply put, Retributivists justify capital punishment under the principle of Lex talionis, translating to Matthew 5:38-42, “An eye for an eye, a tooth for a tooth.”
However, the primary concern is that whether the state, the guardian of an individual’s right to life and liberty should be allowed to take away a human life at all? Or in other words, whether a motive like revenge befits the justice system? In the 21st century, in light of the ever-evolving jurisprudence and criminology, most states are moving towards restorative justice, rather than justice motivated by retribution. It is also pertinent to mention that in any criminal justice system there is a big vacuum for ‘errors and biases’, i.e., public outrage and media influence, the inability of investigating agencies to collect entire evidence among others. With a high degree of margin of error coupled with a lack of comprehensive measures to ascertain whether execution is appropriate, the justification for “retribution as revenge” stands on thin ice. Apart from the complexities in the penological justifications, there are numerous legal challenges that need consideration, particularly in cases where accused persons are facing capital punishment. The most prominent problem is that the entire process involving capital punishment remains highly discretionary and subjective. Undisputedly, there are innumerable factors that are considered before imposing capital punishment. Factors such as public outrage and media trial (particularly in crimes against women), socio-economic biases can lead to harsher sentences including death penalty. So much so, the decision of the President to commute a death sentence also remains highly subjective.
The subjectivity of the entire process is precisely highlighted by the case of Harbans Singh (1982). In this peculiar case, all three convicts were sentenced to death but eventually were met with different outcomes. In this case, Harbans Singh, Kashmira Singh and Jeeta Singh, whose death sentence was affirmed by the High Court preferred their respective appeals to the Supreme Court independently, at different points of time. While, the petition filed first, i.e., of Jeeta, was dismissed in 1976, the petition filed by co-convict Kashmira was allowed and the punishment was commuted to life imprisonment by another bench comprising stalwarts Justice Bhagwati and Justice Fazal Ali. Soon after the commutation, the third accused, Harbans also approached the Supreme Court for commutation of his death penalty, but unfortunately, his petition was dismissed by a bench comprising of Justice Sarkaria and Justice Singhal. After exhausting all remedies, death warrants were issued for the executions of Jeeta and Harbans Singh. As a last resort, Harbans Singh again preferred a writ before the Supreme Court against the death warrant on the ground that co-accused Kashmira’s sentence was commuted and parity mandates that his sentence is commuted too.
The court stayed his execution. When the writ petition filed was finally considered by the Supreme Court, it commuted his sentence to life imprisonment, but unfortunately, it was too late for Jeeta Singh, who was executed on the scheduled date as per the death warrant as he did not challenge the death warrant. The primary underlying problem is a lack of access to justice and prisoners on death row including competent legal representation at all stages. Firstly, there are numerous restrictions on getting access to prisoners on death row and even then, the meetings are in a monitored/ controlled system causing immense hardship for lawyers and prisoners to prepare their defence from the first instance. Moreover, it is also relevant to note that many counsels, especially those specialising in the appellate jurisdiction often discount the need to visit their clients in prison, which should be mandatory in cases punishable by death. Apart from proper instructions and building a strong legal defence, such visits also enable the counsels to evaluate the physical and mental health of their client, which is of utmost importance in wicked and gruesome crimes.
Another issue that requires consideration is the reliability of forensic evidence. Complexities of the admissibility and veracity of electronic evidence and forensic evidence play a pivotal role in death penalty cases. However, considerations pertaining to the chain of custody, the possibility of tampering or planting evidence, and the inability of expert evidence to explain certain occurrences are often overlooked which bring the sentence awarded under scrutiny. Another crucial element in sentencing the death penalty includes the arbitrariness in mitigating factors. Mitigation involves collecting evidence in respect of the offender’s past antecedents to assess the behaviour of the convict and to inspire compassion with the judge, mitigating factors include physiological and psychological issues, social and economic background of the offender amongst others. It is the duty of the defence counsel as well as the prosecution to present the aggravating or the mitigating circumstances before the court at the stage of sentencing. However, there is vast ambiguity in the guidelines as to what may be considered as mitigating circumstances.
All in all, the death penalty poses complex legal and moral issues that necessitate the urgent need to revisit such a punishment. There exists a strong need for us to understand that unlike the colonial era, justice is fundamentally different from vengeance. The very basis of imposing capital punishment has been comprehensively challenged over the years. Furthermore, the inherent prosecutorial challenges the very sanctity of each sentence of death and it is therefore only in the interest of justice that such punishments are repealed. The author is a practising lawyer in Delhi. Views are personal.