The death penalty or Capital Punishment is the most severe form of Punishment which the State can hand out to its convicts. There are two ways in which Capital punishments can be carried out in India, through hanging or by shooting.

In Ancient Rome or Greece, death was given as a punishment for most of the Crimes, and the process through which executions were used to be carried out was cruel. It had certain retributive characters to it. In modern India, the Death Penalty is imposed by the Judiciary after observing due care and caution, only in the rarest of the rare cases.

Rarest of the rare doctrine

Globally, 104 nations have abolished the process of the death penalty from their criminal justice system, but India is one of the very few nations who still use the death penalty as a process to tame cruel criminals who commit acts beyond all monstrosities. Waging war against the State, Murder, attempted murders by a life convict are some of the offenses which can bring upon the death penalty in India.

There have been some furious debates over the decades on whether the imposition of the Death penalty is constitutionally valid or not. The question which often comes is whether The state can kill in the name of upholding Justice and reducing crimes.

Can The state really gets a free pass to kill where it itself condones killing?

It was in the case of Bacchan Singh v. the State of Punjab[1], where the Supreme Court dealt with the Constitutional validity of the Death penalty. In a majority judgment of 4:1, the Apex Court upheld the Constitutionality of the death penalty but also laid down the principle of the Rarest of rare cases in an attempt to remove all the ambiguity regarding the death penalty.

It was held by the majority that although it is not appropriate to take the life of anyone through the instrumentalities of Law, but the same needs to be done in cases where other options like life imprisonment is not adequate.

Further, the answer to the question What constitutes a rarest of rare case was further answered by the Supreme Court in the case of Macchi Singh v. State of Punjab[2], where guidelines to what constitutes a rarest of the rare case were given. Crimes, which are so inhuman, cruel in nature, which shakes the moral the conscience of the entire society was held to be falling under the rarest of the rare doctrine where no other punishment except death is adequate.

As it can be seen in the Nirbhaya case, the then Chief Justice of India, Deepak Misra, while upholding the Death Sentence awarded by the Delhi High Court to the four convicts, classified Nirbhaya case to be one which falls under the rarest of the rare cases as it was a crime which was committed in a brutal, monstrous way which shook the moral conscience of the society.

Society has the highest interest in preventing murders. In order to prevent that, there is no other option than to impose the severest of the Punishment, which is death. It would send a strong message to the future criminals who will think twice before committing such atrocities, keeping the consequence in mind. It needs to be established firmly that taking away an innocent life would result in your life being taken away.

Further attention should be drawn towards a study taken up by Isaac Ehrlich. His study showed that every inmate who was executed for murder, seven lives were saved because, as a result of that, other criminals refrained from killing.

A thief is imprisoned in jail so that he cannot steal in the future. Like that, executing murderers who committed a crime in the most inhuman way possible would stop them from killing again. It is more likely that criminals, who have no conscience or remorse, would kill again if given a single chance.

Life is the most sacred thing which is available to any human being. Moreover, when that is taken away, then the State has no other option to act swiftly and neutralize the wrongdoer. It is absolutely imperative that they do so. It is a moral duty on their part.

Law seeks to achieve Justice in the end. Sometimes Justice is imprisoning the person, sometimes it is allowing the appeal of the convict, but in some rarest of rare cases, its death. Punishment should be proportionate to the crime committed, if it is not proportionate, then Justice is not achieved.

The argument that the The state should not kill does not make any sense. Bruce Fein, JD, General counsel for the center of Law and accountability, in an American Bar Association website article titled Individual rights and the responsibility-The death penalty, but sparingly offered an impressive view.

The argument that The state should not resort to killing is not a factual argument, but rather an argument which is based on faith. In the end, capital Punishment honors the human dignity by treating the criminal as an independent man, who can do anything he wants based on his morality and conscience. It does not reduce him to the level of an animal who has no morality within itself.

Immanuel Kant was right when he said that a society, which does not demand that the life of a person who has committed a crime in a way beyond all human recognition is a society which is immoral in nature. If the crime reflects barbarism, then the response from the State also needs to be barbaric.

As the main aim of the Law is to ensure Justice, there comes a famous saying. Justice must not only be done but seen to be done. People need to see and feel that Justice has been served. They need to feel that heinous conduct will be met with an equally heinous consequence. That is how Justice should work.

The Right to life (Even that of a hardened criminal) needs to be cherished. But at the same time, protecting the lives of its citizens is a must for any nation. Can that goal be achieved if merciless criminals are not punished mercilessly? The answer is a big NO.

The notion that India is the country handing out the most number of death penalties is undoubtedly wrong. Countries like China, Iran, Iraq, Vietnam, and Saudi Arabia executes way more whereas India has confined the death penalty only for some exceptional “Rarest of rare” cases.

Rights and Duties

It is the duty of the State to protect its citizens. That is why, when a crime happens, The State prosecutes. But when someone commits a crime that is cruel and wicked, it sends a ripple through the society and seriously questions the protection given by the State. That's why the State moves in swiftly to execute such criminals in order to affirm it's position as a protector.

But in the name of protection, can the State get a free pass to kill when it itself condones the act of killing? (Remember, Punishment for murder is also death). That position needs to be evaluated in order to get a better understanding.

No doubt that everyone is entitled to their Right to live. But when you enjoy a right, you have a corresponding duty. It is your duty to respect the life of other human beings. However, when a criminal, by blatantly disregarding this duty, takes away the Right of another in a cold-blooded manner, then he himself forfeits his Right to live. Then the State has no other options than to eliminate him for the sake of  the society. The state cannot allow such criminals to live as they are not fit to live in a civilized society.

A closer look at the preamble of the Indian Constitution will reveal that it is the duty of the State to ensure justice for all its citizens. Moreover, no doubt, by eliminating certain criminals from society, the State is doing complete Justice. Punishment should match the gravity of the crime which was committed and if the crime is brutal, then only the death penalty will be proportionate. Anything other than that is not adequate to do complete justice.

The Indian legal system is reformative in nature, not punitive. It aims to reform the wrongdoers rather than punishing them. If a criminal has even 0.001 percent chance to reform himself and be a better citizen in the future, then the State should not execute him. But there are some criminals, who have not even a single ounce of humanity left within them which is necessary for reformation. In such circumstances, the State has no other option but to eliminate them.

The remark of eminent Criminologist Prof. Earnest Van Den Hag deserves closer attention. He opined that:
The murderer learns through his Punishment that his fellow men have found him unworthy of living, that because he has murdered, he is being expelled from the community of the living. This degradation is self-inflicted. By murdering, he has so dehumanized himself that he cannot remain among the livings. The social recognition of his self-degradation is the punitive essence of the execution[3].

Those who commit a crime with utmost brutality and disregards to the life of another is not fit to live and they themselves have brought that situation to themselves by committing an act devoid of any humanity.

No doubt, life is sacred, but the sacredness of life will only be protected if those who are taking it away in a cruel way are proportionately punished in the stringiest way possible.

Capital Punishment is also indicative of the factor that the society at large distastes and abhors such criminals who commit crime beyond all humanity. The death penalty is a mark of the reprobation of the society.

One of the arguments which are often used against retention of the death penalty is the possibility of a mistake. Nevertheless, if you look at the Indian Judicial system, the process is full-proof. A convict who has been sentenced to death has a multi-tier review system at his disposal. Various appeals, then review petition, curative petition, then mercy plea to the President of India. Even after all this due process of law, if the system thinks that the crime he committed is so monstrous in nature that he is fit to live, then there are no other options than to execute him.

Justice or revenge

Whenever there happen any heinous crimes in India, we see a huge public uproar. Citizens, media, they all root for the death penalty as they look at it as some form of revenge.

However, can revenge ever be equal to Justice?

Justice loses it's character as justice if it becomes revenge. That's what the Honorable Chief Justice of India S.A. Bobde had to say after the infamous Hyderabad encounter case. Revenge is emotional, but on the other hand, Justice is rational and ensures long term status quo.

When a human being, who has been wronged, takes any retaliatory action against the wrongdoer, there comes bloodshed and it destroys the equilibrium which was present in the society. Revenge always has a personal character to it. But State, while punishing the wrongdoers, can’t confine them to a narrow interest. The state has to take the interest of the society as a whole. The state cannot get biased, emotional, or surrender to public opinion.

The main reason a wronged person opts for revenge is to express his hatred in order to payback. There are emotions attached to it. Nevertheless, Justice aims to restore balance, which, as a society, is what we should aim for.

One thing needs to be kept in mind. Emotion or revenge can never be a justification for handing out the death penalty. The death penalty is not revenge, but Justice only when it is handed out by the Judiciary after exploring all the other possible options. The rarest of the rare doctrine should always be kept in mind. As we all know, the death penalty is an exception, life imprisonment is the norm. There is a thin line between justice and revenge, which we should never cross.

The term An eye for an eye makes the world blind is not relevant in the discussion of the death penalty. That term indicates and criticizes an act that has been committed as an act of retribution or revenge. However, the Death penalty, when awarded by a Court of Law after following due process, is not a retributive act; it is Justice.

End-Notes:

1. AIR 1980 SC 898
2. 1983 SCR (3) 413
3. Earnest Van dan Hang, “Punishing Criminals” 1975at p.223