A long-lasting and probably never-ending debate about the legitimacy of the “capital punishment” has pervaded through the history of independent India, and continues to persist even today, not just in this country, but across the world. Every time there is a question on the fate of a terrorist, or the public vents their views on an appropriate punishment for a rapist, or the court is to decide upon a heinous murder, there arises this dilemma about whether it is right to penalize someone with the daunting ‘death penalty’.
While there may be a variety of viewpoints that one may consider to formulate an informed opinion about the righteousness of death penalty, a moral and sociological view always proposes a strong perspective against it.
The standard set by precedence, ambiguously allows for the courts to have the discretion in deciding upon -
“Only for the rarest of rare cases”whereby, sections of the Indian Penal Code, 1860 enable for such a punishment to be given, in cases of murder, rape, terrorism, when the court feels that it is apt, and a necessity to punish by death.
Inalienable Right to Life
Some rights are entitled to be bestowed upon a human being, just by virtue of them being a human being. Irrespective of the kind of actions they do, or the kind of humans they are, they deserve their ‘human rights’ to be intact. Universal Declaration of Human Rights and The UN Charter among other internationally accepted conventions have common ground in believing that such rights are inalienable, and should not be restricted, in any scenario. Such human rights are fundamental to the core of humanity. The enforcement and exercise of these rights adds value to human life. It is the duty of the state to protect us from violation of all such rights, whereby ‘Right to Life’ is a major right. It is the overarching right that everyone needs to have, in order to stake claim on other facets of humanity, and exercise other rights which come incidental to being alive in the first place.
In accordance to the social contract that all citizens have with the state, the state has the power to infringe upon some rights of ours, for protective and preventive measures or for the greater benefit; however, we cannot allow the state’s action of infringing upon necessary basic human right to life. The greatest benefit, that state should and must aim to achieve, is the protection of everyone's right to life. Therefore, drawing a line to limit the powers of the state is a necessity, especially keeping the ambit beyond taking away the right to life.
If something is wrong, it should remain wrong across all facets. Murder demonstrates a lack of respect for human life, and killing a human being is morally and socially wrong in general. For this very reason, murder is considered an abhorrent crime. The nature of killing a human does not change if the perpetrator changes. Any policy of state-authorized killings is immoral too. Legitimizing institutionalized killing is just a way of adding to the autonomy and irregularities in power structures. It does not change the fact that a human life is taken away, whatever be the reason. For example, corruption is considered bad. However, we seem to overlook the structured from of management quota. Again, we legitimize the institutionalized version of a crime, which is a problem.
Are we too blind sighted by the tag of the state that we are unable to realize the inherent wrong that is being done in the garb of a system? Is there no rigidity in the concept of right and wrong to maintain consistency across all sections of society, be it an individual or a state?
Retribution – Death is not enough
Retribution is essentially the principle of “tit for tat” where a criminal is punished. There are two main reasons why punishments are given for crimes – to punish the culprit for his wrongful deeds; and to provide the sense of justice to the victims.
The purpose of punishing a culprit is to make him realize that his action was wrong. It is to make him feel the guilt for the magnitude of his actions. It is to make him pay for the wrongdoing he has committed. In a way, basic principles of equity are applied, whereby a criminal is made to feel the same way, and go through some sort of pain, for causing such pain by committing a crime and violating rights of another. For heinous crimes such as rape and murder, where death penalty is in question, the violation of rights of victim is such, and the magnitude of crime is such that it calls for an extreme sort of punishment.
Now, if the person is made to die, he does not live to see the agony and pain that should be caused to him. Death seems to be an easy way out. The contention is that the punishment should be of such nature that it impacts the individual, in a way as equitable to correspond to the crime committed. In this case of death penalty, it is the family that suffers, while the real culprit is actually freed from any suffering. For example, terrorists like Kasab had come to kill and get killed. They had no escape route. Therefore, there is no victory for the state in killing such people. Therefore, killing someone to make him realize his guilt, which itself is so grave, is not serving the purpose of punishing the culprit. Death does not answer the question of retribution, in fact, it evades the question completely.
For the victims, death of the guilty does not serve any utility. An eye for an eye is bound to make the world blind, and hurting another’s eye is not doing any good to their own already hurt eye. It is only a false sense of justice that has been constructed in the minds of the victims, without any tangible benefit. Killing a murderer doesn’t bring back the lost lives or the infringed rights.
The concept of retribution needs to be redefined, to be less illusionary. This is the very reason why, retribution and reformation go hand in hand, in the criminal justice system, to negate the illusions of retribution, and serve the purpose of reformation.
Is a rapist or a murderer punished sufficiently when killed? Does such a punishment relieve the raped or the murdered in a valuable manner? What different is a victim, if he derives solace from the killing of another?
Reformation – A failure
The State has the responsibility to take care of all the people. It plays a paternalistic role, where it acts like a father-figure with the object of protecting its people. In case people within the responsibility of the state act in an unconventional or antisocial manner, the state is supposed to take up the responsibility to reform them. It is the prerogative of the state, in accordance to the overarching social contract, to endeavor to protect the rights of all citizens.
All criminals are meant to be humans first, citizens of the state, and the state wants them to remain fit for society or become fit, despite their actions. Therefore, the state owes an unconditional duty to all its citizens irrespective of the circumstances. Reformation of people is an integral part of this duty. Criminal Justice is also about reformation, apart from retribution, where the state must attempt to reform all criminals, and help them become fit for society. Prison time is theoretically supposed to serve this purpose.
However, if death penalty is allowed, it looks like the state is shrugging this duty off. An important clause of the social contract is breached by the state, every time it decides to give up on an individual. In a way, the state decides to let go of an individual, when that individual essentially needs the state to make good on their social contract, by helping him reform.
Death penalty is implicitly showcasing the weakness of the state to take up reformation when the type of crime in question is heinous and grave. We agree that some people are not possible to be reformed; however, irrespective of the consequence, there must be an attempt on the state’s part to undertake its responsibility. The state should make an attempt, at least. It is exposing its failure of half the criminal justice system, implying that reformation cannot happen. It is a clear indication that an inherent principle of criminal justice cannot be upheld by our state. There is an exposure of an inherent failure and incompetence in the justice system of our country, whereby reformation is just sidelined.
The very common argument from the other side propagates that this same criminal, if not killed, and if not reformed, will be walking among other citizens, once freed. He would be a threat as it is conducive for him to commit other crimes. However, this defence is a scapegoats argument, as it further highlights the lack of trust in the executive systems to keep a criminal away from committing crimes. The message given here almost says that because the state mechanisms are incapable of protecting the society from the prospective future acts of a criminal, it is best to kill him.
Is the depiction of a semi-failure of the criminal justice system a right indication to the principles of justice? Is the public blind-sighted to the breach of the social contract by the state, at its own failure and incompetence?
Public Message
Apart from the weakness of the state, the existence of death penalty implicitly opens other debates.
So, if an individual kills someone, for whatever reason, it is the worst wrong ever. However, if the state kills someone when they deem fit, then it is legitimate. The message that comes across is that the state is open to blatant double standards. Also, violence is the state-adopted method of dealing with anything wrong.
A decent and humane society does not deliberately kill human beings. An execution is a dramatic, public spectacle of official, violent homicide that teaches the permissibility of killing people to solve social problems - the worst possible example to set for society. In this century, governments have too often attempted to justify their lethal fury by the benefits such killing would bring to the rest or society. The bloodshed is real and deeply destructive of the common decency of the community; the benefits are illusory. It unduly burdens the system of criminal justice, and it is therefore counterproductive as an instrument for society's control of violent crime. It epitomizes the tragic inefficacy and brutality of the resort to violence rather than reason for the solution of difficult social problems.
Is this a valid path that any government would like to drive its citizens towards?
Deterrence
A very common argument in support of death penalty says that the presence of death penalty as a punishment serves as a deterrence for future offenders. However, if this were true, then by virtue of death penalty existing for such a long time, crimes would have been eradicated by now.
The concept of deterrence is consequential in nature. Therefore, one is suppose to fear the consequence of his actions for being deterred by the deterring factor. Over the years, the existence of death penalty hasn’t been a crucial deterring factor in the minds of criminals. This is because a criminal, who is worthy of capital punishment, is not thinking about the aftermath of his actions as a consequence, but the fulfillment of his intention. Rapists continue to rape, murderers continue to murder and burglars continue to rob despite the fear of death penalty.
The consequence of their act is not a concern or a consideration for these hardened criminals to deter them from such heinous acts, as their only driving force is the fulfilment of their intention, and they are willing to satiate themselves, at any cost.
Is there enough reason for a criminal to fear death considering his lack of inclination towards the consequences of his crime?
Conclusion
There are other arguments on practical grounds as to which method of punishment is more feasible. However, principally, death penalty does not serve the purpose it is meant to serve, besides being a clog in the effectiveness of criminal justice system itself.
Reliance on the death penalty obscures the true causes of crime and distracts attention from the social measures that effectively contribute to its control. Politicians who preach the desirability of executions as a weapon of crime control deceive the public and mask their own failure to support anti-crime measures that will really work.
We are wrong to think that the state is a strong one, if it approves of death penalty. It is actually a weakness to fulfill its paternalistic duty and an example of failure of a system, hiding behind the veil of an illusionary sense of justice.
“We kill people who have killed people, to show them, and the world, that killing people is bad.” The inherent hidden flaws in that statement is sufficient for us to realize that we need better laws to avoid crime in the first place, rather than look for ways to fight it with a bigger crime.
Puspak Chamariya is a 3rd Year student of BBA LLB (Hons.), from Jindal Global Law School.
While there may be a variety of viewpoints that one may consider to formulate an informed opinion about the righteousness of death penalty, a moral and sociological view always proposes a strong perspective against it.
The standard set by precedence, ambiguously allows for the courts to have the discretion in deciding upon -
“Only for the rarest of rare cases”whereby, sections of the Indian Penal Code, 1860 enable for such a punishment to be given, in cases of murder, rape, terrorism, when the court feels that it is apt, and a necessity to punish by death.
Inalienable Right to Life
Some rights are entitled to be bestowed upon a human being, just by virtue of them being a human being. Irrespective of the kind of actions they do, or the kind of humans they are, they deserve their ‘human rights’ to be intact. Universal Declaration of Human Rights and The UN Charter among other internationally accepted conventions have common ground in believing that such rights are inalienable, and should not be restricted, in any scenario. Such human rights are fundamental to the core of humanity. The enforcement and exercise of these rights adds value to human life. It is the duty of the state to protect us from violation of all such rights, whereby ‘Right to Life’ is a major right. It is the overarching right that everyone needs to have, in order to stake claim on other facets of humanity, and exercise other rights which come incidental to being alive in the first place.
In accordance to the social contract that all citizens have with the state, the state has the power to infringe upon some rights of ours, for protective and preventive measures or for the greater benefit; however, we cannot allow the state’s action of infringing upon necessary basic human right to life. The greatest benefit, that state should and must aim to achieve, is the protection of everyone's right to life. Therefore, drawing a line to limit the powers of the state is a necessity, especially keeping the ambit beyond taking away the right to life.
If something is wrong, it should remain wrong across all facets. Murder demonstrates a lack of respect for human life, and killing a human being is morally and socially wrong in general. For this very reason, murder is considered an abhorrent crime. The nature of killing a human does not change if the perpetrator changes. Any policy of state-authorized killings is immoral too. Legitimizing institutionalized killing is just a way of adding to the autonomy and irregularities in power structures. It does not change the fact that a human life is taken away, whatever be the reason. For example, corruption is considered bad. However, we seem to overlook the structured from of management quota. Again, we legitimize the institutionalized version of a crime, which is a problem.
Are we too blind sighted by the tag of the state that we are unable to realize the inherent wrong that is being done in the garb of a system? Is there no rigidity in the concept of right and wrong to maintain consistency across all sections of society, be it an individual or a state?
Retribution – Death is not enough
Retribution is essentially the principle of “tit for tat” where a criminal is punished. There are two main reasons why punishments are given for crimes – to punish the culprit for his wrongful deeds; and to provide the sense of justice to the victims.
The purpose of punishing a culprit is to make him realize that his action was wrong. It is to make him feel the guilt for the magnitude of his actions. It is to make him pay for the wrongdoing he has committed. In a way, basic principles of equity are applied, whereby a criminal is made to feel the same way, and go through some sort of pain, for causing such pain by committing a crime and violating rights of another. For heinous crimes such as rape and murder, where death penalty is in question, the violation of rights of victim is such, and the magnitude of crime is such that it calls for an extreme sort of punishment.
Now, if the person is made to die, he does not live to see the agony and pain that should be caused to him. Death seems to be an easy way out. The contention is that the punishment should be of such nature that it impacts the individual, in a way as equitable to correspond to the crime committed. In this case of death penalty, it is the family that suffers, while the real culprit is actually freed from any suffering. For example, terrorists like Kasab had come to kill and get killed. They had no escape route. Therefore, there is no victory for the state in killing such people. Therefore, killing someone to make him realize his guilt, which itself is so grave, is not serving the purpose of punishing the culprit. Death does not answer the question of retribution, in fact, it evades the question completely.
For the victims, death of the guilty does not serve any utility. An eye for an eye is bound to make the world blind, and hurting another’s eye is not doing any good to their own already hurt eye. It is only a false sense of justice that has been constructed in the minds of the victims, without any tangible benefit. Killing a murderer doesn’t bring back the lost lives or the infringed rights.
The concept of retribution needs to be redefined, to be less illusionary. This is the very reason why, retribution and reformation go hand in hand, in the criminal justice system, to negate the illusions of retribution, and serve the purpose of reformation.
Is a rapist or a murderer punished sufficiently when killed? Does such a punishment relieve the raped or the murdered in a valuable manner? What different is a victim, if he derives solace from the killing of another?
Reformation – A failure
The State has the responsibility to take care of all the people. It plays a paternalistic role, where it acts like a father-figure with the object of protecting its people. In case people within the responsibility of the state act in an unconventional or antisocial manner, the state is supposed to take up the responsibility to reform them. It is the prerogative of the state, in accordance to the overarching social contract, to endeavor to protect the rights of all citizens.
All criminals are meant to be humans first, citizens of the state, and the state wants them to remain fit for society or become fit, despite their actions. Therefore, the state owes an unconditional duty to all its citizens irrespective of the circumstances. Reformation of people is an integral part of this duty. Criminal Justice is also about reformation, apart from retribution, where the state must attempt to reform all criminals, and help them become fit for society. Prison time is theoretically supposed to serve this purpose.
However, if death penalty is allowed, it looks like the state is shrugging this duty off. An important clause of the social contract is breached by the state, every time it decides to give up on an individual. In a way, the state decides to let go of an individual, when that individual essentially needs the state to make good on their social contract, by helping him reform.
Death penalty is implicitly showcasing the weakness of the state to take up reformation when the type of crime in question is heinous and grave. We agree that some people are not possible to be reformed; however, irrespective of the consequence, there must be an attempt on the state’s part to undertake its responsibility. The state should make an attempt, at least. It is exposing its failure of half the criminal justice system, implying that reformation cannot happen. It is a clear indication that an inherent principle of criminal justice cannot be upheld by our state. There is an exposure of an inherent failure and incompetence in the justice system of our country, whereby reformation is just sidelined.
The very common argument from the other side propagates that this same criminal, if not killed, and if not reformed, will be walking among other citizens, once freed. He would be a threat as it is conducive for him to commit other crimes. However, this defence is a scapegoats argument, as it further highlights the lack of trust in the executive systems to keep a criminal away from committing crimes. The message given here almost says that because the state mechanisms are incapable of protecting the society from the prospective future acts of a criminal, it is best to kill him.
Is the depiction of a semi-failure of the criminal justice system a right indication to the principles of justice? Is the public blind-sighted to the breach of the social contract by the state, at its own failure and incompetence?
Public Message
Apart from the weakness of the state, the existence of death penalty implicitly opens other debates.
So, if an individual kills someone, for whatever reason, it is the worst wrong ever. However, if the state kills someone when they deem fit, then it is legitimate. The message that comes across is that the state is open to blatant double standards. Also, violence is the state-adopted method of dealing with anything wrong.
A decent and humane society does not deliberately kill human beings. An execution is a dramatic, public spectacle of official, violent homicide that teaches the permissibility of killing people to solve social problems - the worst possible example to set for society. In this century, governments have too often attempted to justify their lethal fury by the benefits such killing would bring to the rest or society. The bloodshed is real and deeply destructive of the common decency of the community; the benefits are illusory. It unduly burdens the system of criminal justice, and it is therefore counterproductive as an instrument for society's control of violent crime. It epitomizes the tragic inefficacy and brutality of the resort to violence rather than reason for the solution of difficult social problems.
Is this a valid path that any government would like to drive its citizens towards?
Deterrence
A very common argument in support of death penalty says that the presence of death penalty as a punishment serves as a deterrence for future offenders. However, if this were true, then by virtue of death penalty existing for such a long time, crimes would have been eradicated by now.
The concept of deterrence is consequential in nature. Therefore, one is suppose to fear the consequence of his actions for being deterred by the deterring factor. Over the years, the existence of death penalty hasn’t been a crucial deterring factor in the minds of criminals. This is because a criminal, who is worthy of capital punishment, is not thinking about the aftermath of his actions as a consequence, but the fulfillment of his intention. Rapists continue to rape, murderers continue to murder and burglars continue to rob despite the fear of death penalty.
The consequence of their act is not a concern or a consideration for these hardened criminals to deter them from such heinous acts, as their only driving force is the fulfilment of their intention, and they are willing to satiate themselves, at any cost.
Is there enough reason for a criminal to fear death considering his lack of inclination towards the consequences of his crime?
Conclusion
There are other arguments on practical grounds as to which method of punishment is more feasible. However, principally, death penalty does not serve the purpose it is meant to serve, besides being a clog in the effectiveness of criminal justice system itself.
Reliance on the death penalty obscures the true causes of crime and distracts attention from the social measures that effectively contribute to its control. Politicians who preach the desirability of executions as a weapon of crime control deceive the public and mask their own failure to support anti-crime measures that will really work.
We are wrong to think that the state is a strong one, if it approves of death penalty. It is actually a weakness to fulfill its paternalistic duty and an example of failure of a system, hiding behind the veil of an illusionary sense of justice.
“We kill people who have killed people, to show them, and the world, that killing people is bad.” The inherent hidden flaws in that statement is sufficient for us to realize that we need better laws to avoid crime in the first place, rather than look for ways to fight it with a bigger crime.
Puspak Chamariya is a 3rd Year student of BBA LLB (Hons.), from Jindal Global Law School.