Capital Punishment should be Retained or Abolished?

Session Report
Harshaa Kawatra

LPPYF Law and Public Policy Youth Fellowship is an Online National Summer School Program, a Two-Month Online Immersive Legal Awareness & Action Research Certificate Training Course and Internship Program, from June-August 2023 by IMPRI Impact and Policy Research Institute. An informative and interactive panel discussion on “Capital Punishment Should be Retained or Abolished?” was held on the 14th of July, 2023 by Adv Shalu Nigam, lawyer, author, researcher, and visiting senior fellow at IMPRI.

She started the session with a recapitulation of the previous session in which a debate took place on Capital Punishment and whether it should be retained or abolished. Continuing the same, Prof Vibhuti Patel, Visiting Distinguished Professor, IMPRI and the Chair was asked to set a context to continue the debate. 

She explained how this is a hotly debated issue. In the 21st century and the fast-paced world, the question is if it is valid to have such a penalty. Another thing she pointed out was the State’s power in such a scenario.

Moreover, the idea of individuals held guilty should be executed or given a chance for realisation was raised by human rights activists. All democratic economies focus on different kinds of justice systems which are complex in their own way. Capital Punishment is the all in all instiutionalization of murder by the State. It happened during feudalism, but the question is if it is relevant in the democratic scenario.

For: Capital Punishment

Further, the for side of the debate was invited to present their side which included Garvit Gupta, fellow and Dr. Arjun Kumar, Director IMPRI. Garvit started his argument with how such an extreme punishment must exist only for gruesome crimes like rape, mass murder, conspiracy etc.

The crimes do not include treason and mutiny which are a political influence-based case. He threw light upon the fact that there is a responsibility that the state holds with itself towards the citizens and society. To enable capital punishment, there are certain benchmarks that should be held:

  1. Visible lack of regret on the part of the accused 
  2. Intent behind the crime
  3. Responsibility 
  4. Mental illness or Childhood trauma

Some circumstances will definitely override these benchmarks. 

He also talked about the rights of prison inmates which can be protected and secured to better the extreme results. Moreover, if capital punishment does not exist there may be a format of damaged society.  It can also lead to underestimation of the law by the citizens of the country.

Moreover, abolishment can also lead to a loss in public trust and legitimacy which will in turn harm the functioning of society. The conclusion was that death may not be the best solution to punishment but portrays an emotional and effective picture of the legislature. He also compared life imprisonment with the death penalty and weighed the pros and cons of both.

Dr. Arjun Kumar further added to the for side, that many developed countries are going ahead with the same kind of penalty. Quoting instances of threats in industries like Bollywood which have been going on for a while, he expressed how such penalties make sense. Having a fair legislative and judiciary for the backward classes as well is essential. 

Against: Capital Punishment

The discussion was further taken over by Adv Dr Shalu Nigam who decided to present the against side of the debate. She started off with a beautiful poem by Faiz Ahmed Faiz “Birth of Freedom”. This poem was written in the context of India’s independence intertwined with the pain of partition.

Moving on she explained how most nations have abolished capital punishment either in law or practice. Retentionists are the United States, Japan, Taiwan, Singapore, and South Korea. Additionally, capital punishment is also carried out in China, India, and Middle East countries. According to Amnesty International, 18 countries are known to have performed executions in 2020. During 2022, at least 831 executions in 16 countries were carried out (up from 623 executions in 12 countries in 2021).

Iran hanged 596 people in 2022, including 15 women. Saudi Arabia beheaded 145 men and 1 woman. Kuwait hanged 2 women for murder. Bangladesh hanged 4 men for murder. The USA executed 18 men. Singapore executed 11 for drug trafficking. Women account for less than 1% of all executions carried out worldwide.

Advocates of the death penalty argue that it deters crime and is a good tool for police and prosecutors in plea bargaining, making sure that convicted criminals do not offend again and to protect society from criminals and ensure justice for crimes such as homicide, where other penalties will not inflict the desired retribution demanded by the crime itself. The punishment must be painful in proportion to the crime. Especially in cases of heinous crimes such as murder, terrorism, war crimes, espionage, treason, or as part of military justice.

According to Aristotle, for whom free will is proper to man, the citizen is responsible for his acts. If there was a crime, a judge must define the penalty allowing the crime to be annulled by compensating it. Eighteenth-century philosopher Immanuel Kant argued that every murderer deserves to die on the grounds that loss of life is incomparable to any penalty that allows them to remain alive, including life imprisonment.

John Stuart Mill explained in a speech given in Parliament against an amendment to abolish capital punishment for murder in 1868:

And we may imagine somebody asking how we can teach people not to inflict suffering by ourselves inflicting it? But to this, I should answer – all of us would answer – that to deter suffering from inflicting suffering is not only possible but the very purpose of penal justice. Does finding a criminal show a want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life.

We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another, forfeits it for himself, and that while no other crime that he can commit deprives him of his right to live, this shall.

John Stuart Mill

Abolitionists argue that retribution is simply revenge and cannot be condoned. In modern times, it is considered a primitive form of justice.

Death Penalty is the state-sanctioned practice of killing a person as a punishment for a crime.

Abolitionists believe capital punishment is the worst violation of human rights, because the right to life is the most important, and capital punishment violates it without necessity and inflicts torture. Abolitionists criticise it for its irreversibility and for being brutal and lacking a deterrent effect. Human rights activists oppose the death penalty, calling it a “cruel, inhuman and degrading punishment”.

It is frequently argued that capital punishment leads to miscarriage of justice through the wrongful execution of innocent persons. Improper procedures may also result in unfair executions. Opponents of the death penalty argue that this punishment is being used more often against perpetrators from racial and ethnic minorities and from lower socioeconomic backgrounds, than against those criminals who come from a privileged background;

The background of the victim also influences the outcome. Amnesty International declares that the death penalty breaches human rights, stating “the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment.”

In the Indian situation, she raised the question: What is the purpose of the death penalty? Has it reduced the rate of crime against women? Experience shows that the death penalty has not improved the situation of crime. The National Crime Record Bureau report shows that around 129 persons are awarded death sentences every year yet the draconian laws have not helped to deter the crime or to ensure the safety of women.

It is a response to outrage, anxiety and anger but it’s not a solution to reduce crime. Laws are weaponized and used to target the weaker sections. The data from prison shows that most of the prisoners and undertrials on death row are from poor and marginalised sections who cannot afford legal services. The Criminal Justice System exhibits the biases that exist in society. 

The voices of victims and witnesses are being silenced using coercive techniques by the powerful accused persons. The National Crime Record Bureau data shows that 95 percent of crimes are committed by people who are known to the victims so if one is talking about harsh punishment in sexual assault cases the victim will be pressurized or threatened by the family to not report the matter or withdraw the matter.

We have also seen that harsher or more severe punishment will result in situations where the accused may end up murdering the victims so that she will not be in a position to report the crime. There is a need to increase the rate of arrest and conviction. The conviction rate in rape cases is as low as 27 percent and appallingly, we have seen that judges sympathise with the culprits and acquit them on flimsy grounds.

Also, powerful men who commit crimes deploy all resources, connections and positions to influence the investigation. Reliance on the death penalty diverts attention from problems failing the criminal justice system such as access to justice which is difficult for many poor. Also, steps are required to ensure crime prevention and reduce the huge pendency of cases

and better training for effective investigation. The rights of victims are completely neglected so more important is to reform the adversary system of justice. Retribution is a shortcut to satisfy the anger of society but it does not reduce the incidents so more focus has to be late on restorative and rehabilitative aspects of justice.

The Legal Aspect

Further, she discussed the case of Bachan Singh. In 1980 the Supreme Court evolved the principle of the rarest of rare cases. Justice Bhagwati in his descending view said that the death penalty is discriminatory because it is against the poor. It is arbitrary, unconstitutional and violates Article 21 of the Constitution. Even if you analyse the judgments in the rarest of their cases you see there is no consensus among judges in cases as to who should be hanged and who shouldn’t be.

Between 2000 and 2015, 30 percent of death penalties awarded by the trial courts ended up in acquittals when the decision was challenged in the higher courts; less than five percent are confirmed by the Supreme Court. Also, the Supreme Court said that there are two different standards which are being followed by Judiciary and executive in deciding death sentences. While the Judiciary follows the rarest of rare principles subjected to the subjective interpretation of the judges; the principle followed by the executive in granting clemency is not known.

Justice Verma’s committee has recommended against the death penalty. The Law Commission in its report in number 262 in 2015 said that the death penalty does not serve any purpose. And in many cases, the courts are granting life imprisonment or life imprisonment for the whole life in very serious crimes which may range around 30 to 60 years on an average. So most specifically the system has to be geared towards the leaves of victims and survivors. 

She emphasised that we need a victim or survivor-centric justice system. Identifying the rights of victims, rehabilitation and safety plans for victims of violence and above all eliminating the rape culture are some of the measures that are required to ensure that justice is done effectively and efficiently. Ending the debate with some remarks by Garvit and Adb Dr Shalu Nigam, closing comments were presented by Vibhuti ma’am. Further, a vote of thanks was proposed. 

Harshaa is a research intern at IMPRI.

Youtube Video of Inaugural session for Law and Public Policy Youth Fellowship Programme: https://youtu.be/fT0XLKGJ6LY

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