Capital Punishment

‘Capital punishment’, referred to as the death penalty, is the judicially ordered execution of a prisoner as a punishment for a serious crime often called a capital offense or a capital crime. Thus, capital punishment is the lawful infliction of death as a punishment and has been used for a wide variety of offences.

India is among the 76 countries where capital punishment is legal. Death penalty is given only in the “rarest of the rare cases” by the Indian judiciary and only where the collective conscience of the community is so shocked that it does not think on humanitarian grounds for the “offender.” Our Courts have over the years evolved elaborate procedures as to how the to define ‘rarest of the rare cases’.

There are seven sections in the Indian Penal Code under which death sentence can be awarded to an accused - Section 121 (waging war against the state), Section 132 (abetting mutiny actually committed), Section 194 (giving or fabricating false evidence upon which an innocent person suffers death), Section 302 (murder which maybe punished with death or life imprisonment), Section 305 (abetment of suicide of a minor or insane, or intoxicated person), Section 396 (dacoity accompanied with murder) and Section 307 (attempt to murder by a person under sentence of imprisonment for life if hurt is caused).

Besides the penal code, there are many other laws like Explosive Substances Act, Narcotics Drugs and Psychotropic Substances Act, Prevention of Terrorism Act, which provide for imposition of capital punishment. Yet the standard of ‘rarest of rare’ has been upheld and death penalty cannot be awarded irrationally, arbitrarily. Section 354(3) of the Code of Criminal Procedure makes it obligatory for the trial court to give special reasons for awarding the extreme punishment of death.

Those in favour of abolishing the death penalty argue against death penalty on religious and moral grounds. The underlying logic behind these arguments being that – the life of a human being is his or her inalienable human right and is hence non negotiable. The importance of this argument lies in the fact that even if it is shown that the death penalty does achieve a greater goal; individual human right cannot be sacrificed at the altar of societal good.

There are a number of arguments that oppose the death penalty. One of the most important is the possibility that genuinely innocent people will be executed and that there is no possible way of compensating them for this miscarriage of justice.  Another significant danger is that the person convicted of the murder may have actually killed the victim and may even admit having done so but does not agree that the killing was murder. Often the only people who know what really happened are the accused and the deceased.  A second reason, that is often overlooked, is the hell the innocent family and friends of criminals must also go through in the time leading up to and during the execution and which will often cause them serious trauma for years afterwards. It is often very difficult for people to come to terms with the fact that their loved one could be guilty of a serious crime and no doubt even more difficult to come to terms with their death in this form. However strongly you may support capital punishment, two wrongs do not make one right. One cannot and should not deny the suffering of the victim's family in a murder case but the suffering of the murderer's family is surely equally valid.

Besides capital punishment is said to affect only the poor, lower caste, ignorant and underprivileged of our society. Hence this uncivilised irrationality must not be allowed in any democratic state.

It must be remembered that criminals are real people too who have life and with it the capacity to feel pain, fear and the loss of their loved ones, and all the other emotions that the rest of us are capable of feeling.  It is easier to put this thought on one side when discussing the most awful multiple murderers but less so when discussing, say, an 18-year-old girl convicted of drug trafficking.  (Singapore hanged two girls for this crime in 1995 who were both only 18 at the time of their offences and China shot an 18 year old girl for the same offence in 1998.)

The death penalty is the bluntest of "blunt instruments," it removes the individual's humanity and with it any chance of rehabilitation and their giving something back to society.  Moreover  the chances of deterring hardened criminals like rapists, murders, and drug barons by a few executions in a year is slim.

On the other hand it is argued that  the death penalty is a guaranteed method to eliminate a relapse of criminal behavior. As many speak, criminals should be punished accordingly to their crimes, as reinstated "an eye for eye."The “eye for an eye” version of the retributive theory today stands discredited. Even those who do not believe that capital punishment works as a deterrent may still support this practice as a way of just retribution. Punishment in this view is not a matter of injuring people because it is useful to us but of dealing with them in the way they deserve to be dealt with. And considering the elaborate, often long drawn-out procedure preceding the death penalty, there is not much likelihood of executing an innocent person.
Capital punishment permanently removes the worst criminals from society and should prove much cheaper and safer for the rest of us than long term or permanent incarceration. Money is not an inexhaustible commodity and the state may very well better spend our (limited) resources on the old, the young and the sick rather than the long term imprisonment of murderers, rapists, etc. Though this may seem rather harsh, it is in fact a very realistic and genuine concern that we rarely address out of fear of sounding inhuman.

Execution is a very real punishment rather than some form of "rehabilitative" treatment; the criminal is made to suffer in proportion to the offence. Although whether there is a place in a modern society for the old fashioned principal of "lex talens" (an eye for an eye), is a matter of personal opinion. Does the death penalty deter? It is hard to prove one way or the other because in most countries the number of people actually executed per year (as compared to those sentenced to death) is usually a very small proportion.  It would, however, seem that in those countries (e.g. Singapore), which almost always carry out death sentences, there is generally far less serious crime. This tends to indicate that the death penalty is a deterrent, but only where execution is an absolute certainty.

It should be remembered that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.

An analysis of one of the most recent cases, Dhananjoy Chaterjee v. State of West Bengal, where the court held on to the guilty verdict passed by the Calcutta High Court and upheld the death sentence will help us to understand the law to certain extent. The facts of the case in a nutshell would be, the appellant was one of the security guards to guard the building Anand Apartments. Hetal Parekh a young 18-year-old school-going girl was raped and murdered on March 5, 1990. Prior to this the deceased had often complained that the appellant used to make passes at her and had even proposed to her to go out for a movie with him. The mother of the deceased had complained to her husband and he later spoke with the agency employing him. The agency employing the appellant changed the guard of Anand Apartments. The mother of the deceased had gone to a temple and in her absence the appellant who was seen by one of the guards on duty taking the lift and stating that he needed to go apartment 3-A to repair the telephone.

On the date of occurrence in the evening when mother of the victim reached her house and rang the bell repeatedly and there was no reply and consequently the lock was broken open and found that the deceased was lying on the floor, her skirt and blouse had been pulled up and her private parts and breasts were visible and there were patches of blood near her head as well on the floor as well as on her hand and vagina.

The doctor after examining her, found her dead. The appellant was not traceable and neither reported to his duty. Certain buttons and wrist watch was recovered and the appellant was arrested. The court while upheld the death sentence passed by the trial court and ratified by the High Court.

In the words of Justice Anand:

“The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartment, should have subjected the deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous. Keeping in view the medical evidence and the state in which the body of the deceased was found, it is obvious that a most heinous type of barbaric rape and murder was committed on a helpless and defenseless school-going girl of 18 years. If the security guards behave in this manner then who will guard the guards? The faith of the society by such a barbaric act of the guard gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold-blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscience.

We agree that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenseless young girl of 18 years, by the security guard certainly makes this case a “rarest of the rare” cases which calls for no punishment other than the capital punishment and we accordingly confirm the sentence of death imposed upon the appellant for the offence under Section 302 IPC.”

 Shabdita Gupta, member SACJ, 2007-08