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Death Penalty: A Paradox?

Author : Mona Das (Kirit P Mehta School of Law, NMIMS, Mumbai)

Criminals do not die by the hands of law. They die by the hands of other men.” ~ George Bernard Shaw, Man and Superman

On the dawn of 20th March, 2020, four men convicted of the ruthless gang rape and murder of Nirbhaya were hanged to death in Delhi’s Tihar jail. Even though justice was served after eight long years, it was a moment of euphoria for the country. This incident rekindled the historical debate on the paradoxical nature and the validity of death penalty. Capital punishment or death penalty, in India, is handed out by the method of hanging by the neck or shooting in case of capital offences like aggravated murder, terrorism, treason, criminal conspiracy, military offences, drug trafficking, aggravated rape etc. However, the Indian laws do not hold a steady perspective on capital punishment leading to plethora of complexities for judges. It is a known fact that India has witnessed the rise and fall of various distinct dynasties and the only commonality between them was their use of death penalty for administration of justice. In the present era, where we have codified laws and an awakened conscience, is awarding death penalty justified?

Justice or Vengeance?

In the landmark case of Bachan Singh v. State of Punjab, the court ruled that death penalty is not unreasonable in nature and established the Doctrine of Rarest of the Rare, which stated that death penalty should be ordered only in the ‘rarest of the rare’ cases. Thereafter, in the case of Macchi Singh v. State of Punjab, the court laid down a general criterion for ascertaining the ambit of ‘rarest of rare cases’ based on manner of commission of crime, motive of the accused, magnitude of the crime and personality of the victim. But the ambiguity in the death penalty cases still persisted.

Death penalty is highly inconsistent and capricious in nature. It won’t be wrong to assert that a society which is consumed by angst and outrage can easily confuse justice and vendetta and India has witnessed many such incidents. Justice J.S. Verma Committee (formed after the Nirbhaya gang rape case) and the Law Commission had argued that death penalty is a regressive step as “punishment cannot be reduced to vengeance.” Although the Nirbhaya gang rape case fell within the ambit of ‘rarest of the rare’, it was alleged that the pressure from the society did affect the decision in the Nirbhaya case to some extent. A common justification for death penalty, though not explicitly stated, is revenge. The case of Lichhamdevi v. State of Rajasthan is the perfect example of vengeance taking over the objectivism of judges. In this case, a mother in law burnt her daughter in law for dowry, after which the court in anger passed an order of death sentence by public hanging, thereby completely disregarding the general criterion precedent set in Macchi Singh case. It is the revulsion felt by the society against the convict which is only satisfied by his or her death. This reasoning may be justified to some people but letting emotions take over rationalism will have disastrous consequences. George Bernard Shaw’s powerful statement that criminals die by the hands of other men instead of the law indicates the overpowering nature of vengeance of the people which cannot prevail in a democratic society like India

Penological goals of punishment

Capital punishment doesn’t succeed in attaining the penological goals of; reformation, retribution and deterrence. Retribution sets an internal limit to the severity of punishment but in cases of death penalty, there is no such limit. The objective of retribution can be achieved as long as the rigor of imprisonment matches with the severity of the crime. The deterrence theory assumes that a death penalty would dissuade other criminals from doing the same crime however,  eminent US criminologist, Thorsten Sellin, had stated numerous times that “there is no clear evidence that the abolition of capital punishment had led to an increase in homicide rate, or that its reintroduction has led to a fall.” A survey conducted by the United Nations in 1988 also depicted that there was no evidence to prove that death penalty acts as a better deterrent than life imprisonment. And even if we assume that it does act as a deterrent, is it justified to make a person pay for the predicted crime of others? And why can’t the fear of spending the rest of their life in prison be equally deterrent in nature?

After death penalty is awarded, there is undoubtedly no scope for reforming the person or even giving the chance for reformation. A civilized society, like India, which believes in the dignity of its citizens cannot have retaliation as a justification for punishment. From such instances, it can be seen that with the use of death penalty, deterrence is not proven, retribution is not acceptable and the main purpose of punishment, which is reformation, is nullified. Undoubtedly, imprisonment is a more suitable method to achieve the phonological goals. Hence, the concept of ‘death penalty’ is a paradox in itself. In 2019, the Supreme Court allowed the plea of ‘legal insanity’ in death sentence cases and provided guidelines for commutation to life imprisonment in cases of prolonged delay. Such acts are small yet positive step towards better protection of human rights.


In today’s time, human life has become more precious than it was earlier. Taking a life, for a life which has been lost can only be called revenge, not justice. This is on similar lines with the Gandhian theory of “An eye for an eye will make the whole world blind” and we, as a democratic country, cannot profess such acts. Death penalty defeats the main purpose of a punishment, that is reformation and thus it’s self-contradictory.

The prisoners on the death row and their families are subject to prolonged trial process along with immense physical and mental torture which causes them to beg for death after a point of time. Such a situation should not be faced by any human being, be it a convict or not. In cases of extremely heinous crimes or terror cases (affecting the national security), alternative methods like rigorous life imprisonment without any parole option or no relief by good behaviour can be implemented. And even if death penalty has to be awarded or has already been awarded, it should not be delayed after its pronouncement so that the accused can get a fair trial. The judiciary needs to resist societal pressure for executions, educate the public about the futility of capital punishment and the importance of protection of human rights. All things considered, death penalty should be struck down on the basis of its inherent fallacies and because of it being a moral wrong. Exceptions can be made to it based on well-justified reasons and guidelines. To progress towards this, India first needs to abolish all provisions allowing mandatory death, initiate a study about the compliance with international standards for free trial in capital cases, ensure that the convict is provided with a competent legal counsel regardless of his economic background and make all the statistical information about death penalty available in the public domain. The prevalent subjectivism of the judges in the cases and the paradoxical nature of death penalty makes it necessary to consider Justice Bhagwati’s powerful statement in the Bachan Singh case: “Am I (the accused) to live or die depending upon the way in which the Benches are constituted from time to time?”

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