capital punishment

Practice of Inhumanity Capital Punishment

Most of the supporters subscribe to the philosophy of “eye for an eye” without considering the well know saying of Mahatma Gandhi: “An eye for an eye will make the whole world blind.”

Vishal Kumar Jha

Introduction

“The death sentence is a barbaric act.These were the words of Nelson Mandela, which must be considered while giving a judgment to hang someone. Generally, whenever any offense is committed which can be put in the category of the heinous crime, we demand the death penalty, without considering every aspect of it.

Most of the time we are driven with our emotions and forget about the fact that that almost everyone has sinned in their lifetime. We forget the very fact that most of the time our emotions generate a feeling of rage that always jeopardizes us. We give judgment and never think that if we were in that situation, what justice would we do. For instance, imagine that you’ve committed a heinous crime. But after commencement, you realized that you’ve committed an act of cowardice. You’re ready to accept the punishment and devoted to reforming yourself. Still, at the end of the day, you can’t escape capital punishment and you’ve to give off your life.

The above-stated hypothetical situation tells the whole story about “Capital Punishment”. What’ll be a justice system without any scope of Reformation? Is it justice or is revenge? And if it’s revenge, can it occupy a place in our criminal justice system? These are some common questions that must be answered. In this short work we’ll try to analyze the “capital punishment”, doctrine of “rarest of rare” and further we’ll talk about its relevance in the current scenario. And after analyzing all these questions, we’ll try to conclude the topic. 

Capital punishment and India’s stand

Capital punishment, also known as the death penalty, is the execution of convict sentenced by a court of law. In 2007 India rejected the UN’s appeal for a worldwide moratorium on capital punishment and cleared its stand on the subject. But, as an irony, one side India follows the reformative theory of punishment while on the other side it has continued capital punishment by hanging. Though,  in contrast to other nations, India endorses the doctrine of “rarest of rare” while giving death sentences.

 The debate over it: boon or bane?

The practice of capital punishment has always been a controversial subject within the worldwide criminal justice system. And recently, after the hanging of Nirbhaya convicts, it has created an atmosphere of debate among the people. Almost everyone has their views on this topic. Many are those who say that it’s boon for our criminal justice system while some are those who condemned it as a bane.

Most of the supporters subscribe to the philosophy of “eye for an eye” without considering the well know saying of Mahatma Gandhi: “An eye for an eye will make the whole world blind.”. According to them, it is maintainable as a deterrent to others, as to prevent any danger of re-offending, etc. If we analyze the capital punishment, we’ll find that most of the time, the death penalty deals with a sexual offense. In the context of the first argument, given by supporters, if we compare the 2020 NCRB (National Crime Records Bureau) report of crime against women with the same reports of the past few years, we can conclude that though laws may have changed but not the mindset. According to the 2020 report of NCRB, cases of crimes against women in 2016 were 3.38 lakh. Next year it increased to 3.59 lakh and in 2018 it goes to 3.78 lakh. 

After the Nirbhaya rape case in 2012, the government had appointed  Justice J.S. Verma committee. The committee had a view against recommending capital punishment even in the rarest of rare cases. According to its report, yet, no study shows the deterrent effects of capital punishment. In this context, it was well said by Britain’s last official hangman: “It is said to be a deterrent. I cannot agree…I don’t now believe that anyone of the hundreds of executions I carried out has in any way acted as a deterrent against future murder. Capital punishment, in my view, achieved nothing except revenge.” Some endorse capital punishment by arguing that it prevents the danger of re-offending of crime. But in my view, capital punishment is not the only recourse to prevent this danger. Life imprisonment or life without parole can also prevent it. If one has been given a proper reformative environment during this period of life imprisonment, it can easily eliminate the danger of re-offending.

Another argument that is always put forth by the supporters of capital punishment is that it’s wrong to give them prison as shelter. But in this context, if we examine life imprisonment, we’ll find that these criminals aren’t just getting shelter in prison but, their skills are being used for the state’s purposes. Also, there are many reports which debunk this myth of expensiveness.

According to a report of Amnesty International, the conscientious trial procedure and time taking appeal process for capital cases costs more than imprisoning someone for life. Also, judicial killing on the notion that it’s cheaper is not only morally wrong but also ignores the fact that it has other costs too. For example, it has a risk of exploiting those involved in it. Capital punishment also disregards the fact that convicts could be used for more efficient solutions to crime, could be used for improving police investigations, or as care for victims’ families. 

While on one side, we talked about the arguments of the supporters of capital punishment, the other side of the lobby includes those who want the abolition of the death penalty. The anti-capital punishment movement around the globe even includes victims or many who have lost their loved ones Along with them are many international institutions, and organization i.e. UN and Amnesty International, etc. According to them, capital punishment is a legal murder of someone. They say that rigorous life imprisonment, especially in the case of terrorists who already are prepared to die for their cause, would be far worse in comparison to a swift death by hanging. In my opinion, one in life imprisonment always contemplate one’s past and hence die every day with regret.

Worldwide, the criminal justice system has adopted a common theory of punishment” that includes three objectives, namely 1) retribution, 2) reformation, and 3) deterrence. But as we have analyzed the above facts and data, the death penalty contradicts the “theory of punishment” and therefore, is against natural justice. Some people argue that capital punishment is error-ridden and in case of misjudgment, it’s irreversible. For instance, between 2000 and 2015, 60 death penalty had been imposed by SC and it is subsequently admitted that judgment had erred in 25% of cases. A comparative study shows that capital punishment is against the weaker section. In this context, P.N Bhagwati has said “Capital punishment in its actual operation is discriminatory to the poor and deprived. Also, in this regard, Sister Helen Prejean has said: “The death penalty is a poor person’s issue”. In India, capital punishment is also discriminatory based on the merits of the cases. In India, there is no common principle through which it can be understood that which case qualifies the “rarest of rare”. For example, if we compare the ‘Nithari Kand’ with other cases, we’ll conclude that it’s much more severe than other but still, Moninder Singh (accused in Nithari Kand) hadn’t got the death penalty. Also the trial of “Nirbhaya Rape Case” shows, just to dismiss this one mercy petition, the President of India ended the other 249 mercies without even taking a look at those. This type of discrimination is always wrong as: “justice hurried is justice worried”.

Conclusion

We have talked about almost every aspect of capital punishment and there is much observation that can be made after exploring the whole topic. It can be said that capital punishment derives its force from the ideology of “eye for an eye” and this comes from the very root of revenge. In my opinion, justice isn’t retaliation and revenge shouldn’t occupy a place in our criminal justice system. Also, there isn’t any evidence that shows that tougher punishment can stop crime. Instead of punishment, the law agencies should try to improve the reformatory and rehabilitation policies in jails and juvenile homes.

According to the UN, Capital punishment has been abolished across 142 countries including European nations where the crime rate is least. As a way ahead, India should also try to move on the path of these civilized nations as the profound moral question is not, “Do they deserve to die?”, but “Do we deserve to kill them?”

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