Some fundamental debates of the modern era have crossed the barriers of academia and are widely discussed among people, citizens, and are an indicator of positive change. Academia’s responsibility then is to steer the debate, with their contributions, towards a productive end. The abortion debate among youth has garnered huge support for the pro-choice side, not just in the USA but also in other countries due to the intensity and wide public participation in the debate.

One issue that is rigorously debated within academia, but has not yet found a resonance among large sections is, however, the one on capital punishment. Capital Punishment is vocally supported by large sections some even going to the extent of supporting extra-judicial killings that do not follow any evidence gathering or due process. Police officers involved in such unlawful extra judicial acts are even felicitated by sections of (civil, sic) society. There is very little scope for discussion around the reasons why capital punishment should be opposed or not. It seems to be settled, in people’s minds, that capital punishment is absolutely justified. Moreover, people are even more hostile to the idea of discussion around this issue when there is a sensationalized incident covered in the media.

This too, is one of the reasons behind the hostility. The debates in the public sphere should not be undertaken during the hyper-charged moments of a sensational crime or even during a highly publicised instance of capital punishment. These discussions should take place at a relatively indifferent time, a time when people would be more willing to engage in discussion. This article is an effort in that direction.

There are some fundamental questions that need to be answered before going into the debate around Capital Punishment. The first question that needs to be asked is, if such punishment is a necessity? Punishment, in forms which will stop the crime from happening, is also reformative in nature. It is morally difficult for society to not embrace the idea of not having any punishment. There are various types of punishments, classified on the basis of what guides their implementation –retributive or reformative. Some punishments are geared towards reforming the criminal, some intend to assuage public anger by engaging in retribution etc and some intend to bring (restore) normalcy to the societal order.

The following are the theories of punishment, broadly classified:

1)      Retributive Theory of Punishment.

Law becomes a tool to punish the wrongdoer with the same sort of consequences for the crime they have committed. To summarise the whole theory would be ‘an eye for an eye.’ Different traces of this theory are found even within India’s criminal justice system.

2)      Reformative Theory of Punishment

This is a relatively modern theory of punishment in which the criminal is put through a process of reformation. The crime is understood as linked to the prevalent physical or emotional condition of the criminal as well as the society’s environment and circumstances. As a result, the criminal is regarded as a patient. Therefore, penalisation is not used to reclaim the offender and not to torture or harass them. This theory is yet to really influence the Indian Criminal Justice system but there are some elements of this used by some judges in petty cases.

3)      Deterrence Theory of Punishment

This theory has the most impact on the Criminal justice system in India. There are two elements to this system/approach. One is to deter the criminal from committing the act again and another is to deter other people from committing the same act.

4)      Preventive Theory of Punishment

In a way, preventive theory is a subset of the Deterrence Theory of Punishment. The Preventive Theory emphasises preventing the offender to repeat the act by disabling them from accessing society.

We have the premise that punishment is a necessary tool to maintain the societal order and the above theories are the tools to determine which approach should be followed. The idea of Capital Punishment stems from a mix of Preventive, Deterrence and Retributive theory.

1) Capital Punishment has the effect of preventing the person from committing the crime again or accessing society again – Preventive Theory;

2) It has, ideally, the effect of inducing fear of death into the minds of those outsiders who, in future, might commit the crime – Deterrence Theory;

3) It accords a sense of justice to the victim or their family for the pain they have been through -Retributive theory.

Let us first deal with the layers of the strongest argument the proponents of capital punishment can put forward. An introductory argument would be to say that capital punishment is given only in rarest of rare cases and therefore a comprehensive opposition to death penalty per se is not required. The second would be to say that these rarest of rare circumstances will not be any usual circumstances but of those of a vile and conscience shaking nature. And to not act in opposition to such acts or in opposition to the person who has committed such acts would not be justified. Thirdly, that the victim’s/family’s pain can be assuaged by nothing less than the punishment given to the criminal and to not punish the criminal in the appropriately proportional way would be to cause injustice to the victim.

Let us examine these arguments in support of Capital Punishment.

There is an inherent inconsistency within this seemingly coherent sum of arguments. One is that, if capital punishment is given in the rarest of rare cases, the issue of injustice to victims is prevalent in that paradigm too. If every victim is given proportionate justice, the rarest of rare cases principle does not stand. Moreover, there is no explanation from the proponents of Capital Punishment as to how the same principle of proportionate treatment is not given to other crimes. For example, if a person A amputates the arm of another person B, the punishment under IPC is not amputation but imprisonment. The proponents fail to explain how capital punishment is an exception.

There is a need to put up a case against the practice of Capital Punishment, irrespective of the contrary arguments. First, would be to make a case against the preventive theory of punishment. A crime, even a heinous crime, is not a product of a person alone but the product of the person and the circumstances they (he/she) are/is in. The act of ignoring the conditions a person was brought up in and the conditions they have been living in hinders the understanding of factors that contribute to the committing of the crime. To accord death penalty to a person would be to shake off the responsibility of state and society to create a society that acts as a prevention to enable circumstances that gave rise to the crime. Moreover, imprisonment can also be used to effectuate preventive theory rather than capital punishment.

The second arm of the case is to deal with the deterrence theory. There is much empirical evidence from the countries that abolished capital punishment stating that the abolishment of capital punishment has little effect on the number of crimes which would otherwise attract capital punishment.^[1] To state plainly, crimes will barely increase if capital punishment is abolished. Moreover, the consistent evidence is that fear of being apprehended by the police and the certainty of punishment acts as a deterrent rather than the intensity of the punishment.^[2] Additionally, that part of the deterrence theory which seeks to deter future offenders from committing the same crime by giving stringent punishment to an offender – this does not have the element of fairness. A criminal should only be responsible for the act they have committed but not for the actions others in future might commit. If such holistic responsibility is to be awarded, then government and society also needs to take the responsibility for creating the circumstances for the crime.

This brings us to the final arm of our case, the one against the Retribution Element in capital punishment. Crime is a wrong committed against society and in some cases, wrong committed against the person too. The state has come to represent the victim against the criminal and the reason for this is that when a crime is committed, the powerful prevail over the powerless. Whether it is a robbery, a kidnapping or other such crimes. And to aid the powerless and to make sure that morality of society is not harmed, society takes it up via the government. This is not to say that the victim is of no consequence in the proceedings. They should have an importance and their interests too should be kept in mind. However, if society is the only one that takes on the burden of prosecution, there is no retribution for society to attend to. It cannot be a vehicle for private retribution. It should be understood as if the victim is transferring their right to the state to prosecute someone while being empowered to actively participate in the proceedings. If such understanding is absent, it would allow for an element of victim’s own justice to creep into the public criminal justice system. The Victim’s lawyer under Indian law does have the right to assist the public prosecutor and these liberties have been given to balance the issues that might arise due to the collusion of state authorities with powerful perpetrators (accused) etc.^[3] However, these rights will not go away if capital punishment is abolished. Victims will have their rights but with the caveat that the punishment will not be the death penalty.

Simply put, there is no clear rationale for retribution to be the result of proceedings for two reasons. The first one is that the state is the main prosecutor which does not –or should not–have anything to retribution. The second reason is that, there is no reason to attribute proportional retribution – eye for an eye, life for a life- paradigm only for murder and not for other offences. For instance, how the offence of grievous hurt does not (or should not) attract retribution since such retribution would be medieval – having no place in democracy, death penalty too has no place in a democracy which values the social contract and rights of people.

Conclusion

Recently, a three-judge bench of the Supreme Court of India referred a case to the five judge Constitution bench  for providing guidelines on how the accused can present their version of mitigating circumstances to defend themselves against capital punishment before the trial court. The Supreme Court has stood by the rarest of rare doctrine as propounded in the Bachhan Singh’s case and the imposition of death penalty is normally done very cautiously. The Right to Life is the most precious right that flows not just from the constitution but from the values of the civilisation itself. As civilisations’ move forward, some rights like the right to live will have to become absolute to provide stability to humanity and its quest to build relations within. The way forward however is to have discussions on this issue not just in academic spaces but with the people.

Only then, will the campaign against capital punishment bear any fruit.