Relevant for essay :
Capital punishment also called the death sentence is a process in which the state uses its power to condemn the actions of the convict by sentencing them to death. The first recorded instance being that of Hammurabi in the 18th Century B.C. Throughout history, the state has used capital punishment for a variety of crimes, ranging from minor offences like stealing to more serious and terrible crimes like rape, murder, and high treason.
The primary goal of any country’s criminal laws is to reform criminals rather than punish them. However, it is also the role of the same state to safeguard the interests of the whole society and to reaffirm the population’s trust in the judicial system, and death punishment may be one way to accomplish this. The death penalty issue has been increasingly heated in recent years. While proponents of the death penalty argue that it should only be used for the most egregious offences, human rights advocates argue that the death penalty violates an individual’s basic human rights. The purpose of this paper is to explain why the death penalty should be abolished in India.
Capital punishment in India
Capital Punishment stands for most severe form of punishment. It is the punishment which is awarded for the most heinous and grievous crimes against humanity.
Certain offences under Indian Penal Code, for which the offenders can be sentenced to punishment of death are:
- Murder (Section 302)
- Dacoity with murder (Section 396)
- Criminal Conspiracy (Section 120B)
- Waging war against the Government of India or attempting to do so (Section 121)
- Abatement of mutiny (Section 132) and others.
The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, it can be commutated into life imprisonment or pardoned by the President under Article 72 of Indian Constitution.
The validity and ethicality of capital punishment have long been debated, with proponents offering arguments based on the contrasting rationales of vengeance and utilitarianism. The supporter of the Utilitarian theory says that the state is totally justified in imposing capital punishment because it has a deterrent effect on crime whereas the Retributivist argue that the death sentence is justified regardless of its deterrent effect on crime because all wrongdoing must result in some form of punishment, regardless of any extrinsic consequences. However, it raises important doubts regarding the state’s ability to carry out death punishment. Is it morally acceptable? Why should the state be allowed to take a life that it cannot provide? I will try to answer these questions by looking into the arguments made by retributivists and utilitarians in an attempt to answer these problems.
Some theories
Theory of Retribution
The retributivist concept of justice is primarily supported by the biblical principle of lex talionis( “eye for an eye”), which advocates for punishment that is both proportional in kind and degree to the harm perpetrated on a victim. This idea of justice can be found in the early code of Hammurabi. Although Hammurabi didn’t establish the concept of retribution, Hammurabi Law’s is based on this theory. This theory says that when one commits a crime or breaks the law, justice only prevailed when the one suffers in return and the punishment is proportional to the crime. One of the most prominent supporters of retributivism, Immanuel Kant stated that “Judicial punishment is categorically imperative”. He was against any utilitarian motive while deciding the punishment for an offense. He expressly says that the judiciary and lawmakers should not be allowed to use consideration of Utility to affect their minds while deciding the punishment. Kant mainly focuses upon the criminal desert and not on moral desert. According to him the same degree of retribution should be use towards criminals. If he commits Murder then the punishment should only be the Death penalty. He was the staunch supporter of Lex Talionis principle.
Utilitarianism
The utilitarian justification for the death sentence is based on the ostensibly positive impact it has on deterring potential criminal behaviour and therefore securing social order. Objections to this utilitarian explanation stem from two sources. The first is ethical because it regards individuals as a means to an objective, which is essentially wrong. The prospect that even innocent people may be punished is inherent in the assumption that capital punishment may be used as a tactic of deterrence, creating the same impact that proponents of capital punishment promote as desired. It calls into question the morality of the strategy, in which innocent people’s lives are sacrificed on the altar of the ostensibly deterring impact it has on crime.
Our justice system is well-known for being biased towards the poor and disenfranchised. And it’s only natural that the poor will be punished more severely than the wealthy. Here are some numbers that reveal the whole picture. The study conducted by the students of National Law University with the help of the Law Commission of India, which take interviewed 373 death row convicts over 15 year period and after analyzing it found that three-fourths of death row convict is from backward classes, religious minorities and also 75% is from economically weaker sections. The poor, Dalits, and others from backward social classes typically face harsher punishment in our courts due to their inability to get skilled counsel to challenge their conviction. Also according to Philip Alston, a UN independent specialist on poverty and human rights, the death penalty has a large sign on it that says “reserved for the poor,”[13]. This discrepancy has not happened only in India, actually, it happens in all the country which used the death penalty as a punishment like if we see in Kenya, According to Mary Ann Njau, a top court officer in Kenya, the bulk of the over 800 prisoners on death row in Kenya as of March 2018 were impoverished, had little or no education, and resided in rural regions, where living conditions are often worse. Only one guy and one woman had a university education out of 142 male and 25 female death row convicts.
In addition to this, the skin colour of a criminal and victim plays an important and undesirable part in determining who gets the death penalty. People of colour have accounted for 43 per cent of the executions in the United States since 1976, and 55 percent of those now awaiting death. Also, as per United States General Accounting office, Death penalty Sentencing February 19907 –
“In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.”
Also, according to a study published by the New Jersey Supreme Court in August 2001, the state’s death sentence statute is more likely to be applied against defendants who kill white victims. Sometimes also due to the biasness people get the punishment that they don’t deserve for example “Since 1973, more than 8,700 people in the U.S. have been sent to death row. At least 182 weren’t guilty—their lives upended by a system that nearly killed them”. We can see this type of discrepancy in our society like if we see the example of 6 members of the shinde family named Rajya, Ankush, Raju, Ambada, Bapu and surya, Who were sesentencedo death but after spending 16 years in prison they were set free and acquitted by Supreme Court after again examining evidence. But in earlier years between June 2003 to April 2009 the same supreme court, Nashik session, and the Bombay high court found them guilty and sentenced them to death.
Judges, lawmakers, the media, and the general public have embraced the relentless discourse that attempts to improve victims’ rights by taking away essential rights from the guilty. No criminal justice system can be trusted if the accused’s rights are defined and impacted by the severity of the offense. Victims’ rights cannot be protected at the expense of the accused’s rights. That erroneous course will only result in more unjust convictions, with the real criminals never being prosecuted. The percentage of convictions in our criminal justice system is quite low. At the same time, over 75% of our jail population is made up of undertrials who have been in prison for lengthy periods of time without being proven guilty. The police and prosecutors are under enormous pressure to get convictions using colonial-era procedures. There are perverse incentives to fabricate torture-based evidence, plant evidence, commit prosecutorial misconduct, and withhold exculpatory evidence in this scenario. In our nation, wrongful prosecutions and convictions are considerably more common than people realize. The Quill Foundation’s superb work in the context of terror prosecutions, as well as Manisha Sethi’s incisive study of terror trials in Kafkaland, are clear examples of this.
The death penalty is a centuries-old notion that has been applied in every civilization throughout history. Despite the passage of time and the advancement of civilization, this practice continues to be practised in the twenty-first century. For years, not just on a global level, but also on a national level in India, capital punishment has been a divisive topic. Despite the fact that the death penalty is now mostly restricted to a limited number of jurisdictions, its faults and shortcomings are more obvious than ever.