14th December 2018
Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.
Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.
GS II: GOVERNANCE
Q1. Give arguments for and against the abolishing of death penalty in India.
- The death penalty has not deterred terrorism, murder or even theft. For over a century, stealing attracted the death penalty in England, where spectators at public hangings often had their pockets picked!
- The death penalty is error-ridden. Between January 1, 2000 and June 31, 2015, the Supreme Court imposed 60 death sentences. It subsequently admitted that it had erred in 15 of them (25%). The death penalty unfairly targets the poor and marginalised. Those without capital get the punishment. Penurious prisoners on legal aid get it the most, while others with private lawyers remain untouched.
- The death penalty is impossible to administer fairly or rationally. The Supreme Court has repeatedly admitted that it has arbitrarily imposed this most extreme punishment.
- Abolishing the death penalty will ease, not enhance, the tax-payer’s burden. The annual cost of maintaining a prisoner is about ₹30,000. The hangman is paid more, and we also save on the protracted litigation that death cases involve.
- Constitutional, legal and policy issues cannot be determined by the victim’s understandable hunger for revenge without leading to a frenzy where the death penalty is demanded, as it often is, for wholly inappropriate cases (accidental deaths, cheating, etc.).
- India’s murder rate has declined continuously since 1991 and is at present the lowest in our recorded history except for 1963. And this is not thanks to the death penalty whose infrequent and arbitrary implementation has made no real difference. It may as well have not been there. Studies show that a more equal sex ratio has more to do with declining murder rates than killing murderers.
- Nobody wants to undergo the trauma of administering the death penalty — not the higher courts and not the hapless prison staff who have to see a human being die gasping at the end of a rope. Governments kill prisoners to show that they are tough on crime.
- The death penalty has been criticised for far too long without an understanding of its nuances. It is criticised mainly on three counts: arbitrariness, irreversibility and human rights. However, the punishment passes muster on all accounts. Its constitutionality has not only been upheld in India but also in the bastion of liberal democracy that is the U.S. The retention of the death penalty is not a reflection of “uncivilised” polity in theocratic states that have come to be defined by violence but a creation of the individual geopolitical circumstances of each state.
- The Law Commission of India has attempted to analyse the need for the death penalty on two separate occasions. While the 35th Report correctly called for its retention in order to see its impact on a new republic, the more recent 262nd Report could not recommend the punishment’s absolute abolition despite a rather desperate attempt to do the same for the first 240 pages. The exception to abolition came in cases of terror. Herein comes the first defence of the death penalty: India’s neighbourhood is not peaceful, unlike Scandinavia, and it does not form a supranational conglomerate of nations that facilitate common growth, unlike the European Union. On the contrary, every day vested interests attempt to destabilise the very idea of our nation from across every border it shares. It is this peculiar nature of India’s polity that must inform any debate for abolition. As noted by the Commission itself, cases of violent terror are constant reminders of the need to protect national stability by ensuring appropriate responses to such actions, and the death penalty forms part of the national response.
- It is in this idea that there exists a moral support for the death penalty. A punishment cannot be judged by its impact on criminals but by its impact on those who are still innocent. However, the retention of the death penalty is far more fundamental than an arrogant state interest to seek revenge. On the contrary, the punishment itself is a reflection of societal mores.
- The death penalty is also often criticised on its practical implementation. Some argue that it is arbitrarily meted out and others find its irreversibility repugnant. However, both these sets of criticisms are reflections of bad syllogism. The punishment is not arbitrary because it comes out of a judicial process. To term the punishment as arbitrary, one has to necessarily prove the process as flawed. However, in the cases of the death penalty, the courts have made sure that caution is exercised in giving the punishment. They are conscious of its irreversibility and have therefore restricted it to only rarest of rare cases that shock the conscience of society. This is reflective in the fact that in the last 13 years, only four people have been executed.
- The moral foundation of judicial killing has been questioned and it has been judged untenable in many countries. In 2007, the UN General Assembly passed a resolution calling for a moratorium on the administration of the death penalty by the 59 countries that still retained it. India is one of them, even if it does not employ it as frequently as countries such as Iran, China, Pakistan, Saudi Arabia, and the U.S.
- In 1962, the Law Commission supported the death penalty stating that India’s particular circumstances were such that it could not “experiment” with its aboliti In 1991, the Supreme Court cited its use in defending law and order as the reason for its continuance. Its alleged usefulness extends from being a potential deterrent to serving as a primordial need for retribution.
- That said, India has looked to the judicial administration of death with greater constitutional scepticism. In 1980, in Bachan Singh v. State of Punjab, a Constitution Bench articulated the “rarest of rare” threshold stating that “judges should never be bloodthirsty”. Death must only be imposed where the alternative option is unquestionably foreclosed.
- Implementation of the death penalty has also been deeply problematic. As the recent Death Penalty India Report by the National Law University, Delhi, indicates, the structural flaws in our criminal procedure and criminal justice system are most pronounced in death penalty cases. Due to biases in criminal investigations, the marginalised — whether by religious and caste denominations, or class — are disproportionately subject to the death penalty. And delays in the criminal justice system disproportionately affect those who suffer the tyranny of the uncertainty of their life. India also retains the death penalty as an option for non-homicide offences where the instrumentality argument is the most attenuated. Even so, the Supreme Court upheld it, as recently as 2015, for kidnapping with ransom.
- In 2015, the Law Commission called for abolition of the death penalty for ordinary crimes, and activists continue to argue for abolishing it altogether. However, the constitutionality of the death penalty will continue to be challenged.