From UPSC perspective, the following things are important :
Prelims level : Nothing much
Mains level : Capital punishment - debate
After the Supreme Court’s dismissal of review petitions by all four convicts in the Nirbhaya rape and murder case, the four have moved one step closer to the gallows.
Empirical evidence on Capital punishment
- Past experience – the experience of the past century shows that the death penalty as a measure to end sexual violence has completely failed.
- Country-wise – In 1965, only 23 nations had abolished the death penalty. Subsequently, over two-thirds of countries have given up on capital punishment either in law or in practice.
Against natural justice
- Punishment – In the system of criminal justice, sentencing is done based on the ‘Theory of Punishment’.
- Classical law – four elements of a systematic punishment
- the protection of society
- the deterrence of criminality
- the rehabilitation and reform of the criminal
- the retributive effect for the victims and society
- Capital punishment goes against the spirit of the ‘Theory of Punishment’, and natural justice.
‘Protection of society’
- This is not served by imposing the death sentence any better than by incarceration.
- This has been proven, as inmates have spent decades on death row, being brutalized by the inhuman punishment meted out to them.
- There are several factors that affect criminal activity and deterrence is only one of them.
- In a UN survey, it was concluded that “capital punishment deters murder to a marginally greater extent than the threat of life imprisonment.”
- The report of the Justice J.S. Verma Committee said that capital punishment is a regressive step and may not provide deterrence.
- The committee recommended the life sentence for the most grievous of crimes.
- A reasonable man is deterred not by the gravity of the sentence but by the detectability of the crime.
‘Reform and rehabilitation of the criminal’
- This is immediately nullified by the prospect of capital punishment.
‘The retributive effect’
- Killing should never be carried out based on the primal and emotive desire among human beings for revenge.
- Revenge is a personalised and emotional form of retribution, which often loses sight of proportionality.
Study of convicts
- Against weaker sections – A comparative study of death row conflicts shows that the jurisprudence in this regard is skewed against the weaker sections.
- Justice P.N. Bhagwati said that the “death penalty in its actual operation is discriminatory for it strikes mostly against the poor and deprived”. The reasons include a lack of adequate legal assistance to the marginalised.
- The Death Penalty Project has shown the manner in which wrongful capital sentencing is carried out. In the United States alone, over 350 people have reportedly been wrongfully sentenced in the last century.
- It becomes imperative for the judiciary not give in to the public clamor for making capital punishment mandatory for rape convicts.
- Public angst and emotions cannot be an alternative to reason and logic.
- There needs to be better enforcement of the law in response to valid questions on justice but the death penalty holds no answers.