It is time to rethink the death penalty
it is questionable whether a punishment based solely on retribution has any place in a society that prides itself on being civilised
Last month, in his final judgment before retiring, Supreme Court Justice Kurien Joseph observed that the time had perhaps come to reconsider the place of the death penalty in the Indian criminal justice system. Justice Joseph’s observations — that drew upon the report of the Law Commission and recent advances in criminology — potentially herald the reopening of a question that has been considered settled for the last three-and-a-half decades, ever since the Supreme Court’s Bachan Singh judgment in 1980, which upheld the constitutionality of the death penalty.
One may ask the question: what is the need to reconsider an issue that was considered in detail by five judges of the Supreme Court, after taking into account all possible arguments? The answer is that a lot has changed since 1980: with respect to the field of criminology, as well as with regard to the practical working of the death penalty in India, we have information now that wasn’t available to the judges who decided Bachan Singh in 1980.
For example, it is now much clearer that there exists no demonstrable link between the death penalty and the deterrence of crime (one of the fundamental goals of the criminal law). While imposing the death penalty for an ever-increasing range of offences may send out a signal that the government is no-nonsense and tough on crime, the death penalty actually has no discernible effect on preventing crimes. Second, the death penalty — by its very nature — denies the possibility of reformation, which is a second important goal of criminal law. This leaves retribution as the only possible justification. But it is highly questionable whether a punishment that is based solely on retribution — an instinctive desire for revenge — has any place in a society that prides itself on being a civilisation.
More important, however, recent research by Project 39A at the National Law University of Delhi has demonstrated how a disproportionate majority of convicts who are awarded the death penalty belong to economically and socially marginalised classes — that is, the most vulnerable members of society. There are a lot of factors that might explain this phenomenon: lack of access to proper legal representation (especially at the level of the trial courts); lack of access to social and cultural capital; and so on. The fact remains, however, that the death penalty, in its operation, is discriminatory; and when we combine this with the malaise that affects the Indian police system as well as the judicial system more generally — leading to a more-than-high probability of regular miscarriages of justice — it becomes clear that retaining the death penalty is unconscionable.
At this point, you may ask: isn’t that a problem across the criminal law, and with any kind of punishment or sentence? Why single out the death penalty? The answer is that the death penalty is the only punishment that, by its very nature, excludes the possibility of making amends in case of a miscarriage of justice. For all other punishments, the existing biases in the criminal justice system can be mitigated (to an extent) by keeping open the possibility that if, one day, an error is revealed, the person who was wrongly punished can be set at liberty, and compensated. Death forecloses that possibility.
Effectively, then, the existence of the death penalty on our statute books arrogates to the State (and, by extension, to society) a presumption of infallibility: we are so confident that our criminal justice system gets it right, that we are willing to inflict a punishment that rules out the very possibility that we might have got it wrong. But not only does the evidence of India’s broken criminal justice system (the countless instances of individuals being framed for crimes they did not commit and being sentenced to death by the lower courts, before finally being acquitted by the Supreme Court) show that we get it wrong far too often, it also shows that the price of our mistakes is visited most violently upon the most vulnerable in society, and upon their families. The death penalty cannot be separated from its implementation, and its implementation is inconsistent with the Constitution.
Justice Joseph’s last exhortation, then, is a moral and ethical challenge: can we get over our natural and instinctive response to a violent crime — “the criminal deserves death!” — transcend our immediate reactions, admit our fallibility, and deny ourselves the satisfactory — yet morally unconscionable — authority to deal out death in judgment? The question has been asked. It is up to us to answer it.
Gautam Bhatia is an advocate in the Supreme Court
The views expressed are personal