Background :-

The honorable  Supreme courrt, in the case of  Shankar Kisanrao Khade vsStateofMaharashtra (‘Khade’) ,observed that while applying rarest of the rare principle ,the executive(President) has taken into consideration some factors not known to the courts for converting a death sentence to imprisonment for life.

Hence , called for Law commission to resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.

The 35th Law commission report emphasized the use of death penalty while 262th report recommends its abolition.The 262 th Law commission was published recently and nearly at the same time the parliament expanded the scope of death penalty (Criminal Law (Amendment) Act 2013) and if any reading of the public mood in general has taken in to account, save the intellectuals and erudite, it is largely in favor of doling out death to heinous offenders.Surprisingly this prevailing public mood is especially when India not at the cliff of a serious crisis such as wide spread communal violence or threat of terrorism per se.

Subsequent Developments : –

35threport Law Commission , 1962 :- It observed that, to the conditions in India,to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population, and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment .The commission upheld that the deterrent object of capital punishment was its most important object.

In the same vein it also held that the Human values and high moral grounds are compelling enough to abolish capital punishment , however maintenance of Law and order in such a vast county is of paramount importance and abolition of death penalty may lead to dilution of deterrence.

Political Developments :- Demands for death penalty have been made by various political parties in India ( CPI,CPM, DMK and many more) . More than once private members bill was presented in parliament to abolish death penalty.

International Developments:- In 1967 ,when 35thLaw commission report was presented ,only 12 countries has abolished death penalty.Today , 140 countries have abolished death penalty in law or in practice.The death penalty is most frequently used in Iran, China, Pakistan, Saudi Arabia  and USA.

History Of death Penalty In India :-

1) Following the execution of Bhagat Singh,Sukhdev and Rajguru by the British government, the Congress moved a resolution in its Karachi session,which included a demand for the abolition of the death penalty.

2)Indian Constitution assembly debates between 1947-1949 , at the time of drafting constitution, raised questions around Judge-centric nature  of death penalty,  arbitrariness in imposition, its discriminatory impact on people living in poverty, and the possibility of error. Dr B.R. Ambedkar was personally in favour of abolition of  death penalty as can be noted from the transcripts of constitutional assembly debate.However , he suggested that the desirability of death penalty must be left to the parliament to discuss and legislate as per demands of time.

3)From Jagmohan to Bachan Singh :-

The constitutionality of death penalty first challenged in the case of Jagmohan Singh VS State of U.P (1973) ; and court held that death penalty was a permissible punishment and did not violate constitution.However held that the discretion of judges must be replaced with a procedure, but then again feeding every judicial data into a judicial computer and all such situations are astrological imponderables in an imperfect and undulating Society.

In case of Bachan Singh vs State of Punjab (1979) , the court adopted the principle of “rarest of rare crime” and opined that “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed”

4) Recently, the scope of death penalty is expanded . For example Criminal Law (Amendment) Act 2013 , introduced several new provisions into IPC , including section 376A , which allowed for the death penalty to be imposed in cases where rape led to death of the victim, or left her in a persistent vegetative state ; and 376E that allowed for death penalty for certain repeated offenders.These amendments were passed on the recommendation of Verma Committee report .

Justifications for Death penalty : –
The justification for death penalty is centered around following principles:-

A)Deterrence
B)Retribution
C)Incapacitation
D)Unique condition of India
E)Proportionality
F)Public Opinion
G)National Security and terrorism

A)Deterrence : –

Deterrence aims to prevent individuals from offending by using the fear or threat of punishment.The assumption behind deterrence theory is that all persons are rational individuals and everyone knows the penalty for the crime one commits and weighs the consequences before committing the crime.The prerequisites for deterrence is that : –

(a) That potential offenders know which offenses merit the death penalty

(b) That potential offenders conduct an analysis of the costs and benefits before or while committing the crime and weigh the death penalty as a serious and important cost

(c) That potential offenders view it a probable consequence that they will be subjected to the death penalty if they commit the crime

(d) That potential offenders are risk-averse and not risk-seeking

(e) That potential offenders give more weight to the costs than the benefits, and choose to not perform the act.

Given the above point , it can be attributed that deterrence rests upon two fundamental fallacies :-

a) Knowledge Fallcies:-
Knowledge fallacies refer to the idea that offenders do not know the penalties applicable to the crimes that they plan on committing. Hence, they do not feel deterred by a severe penalty. However,deterrence assumes that every individual knows the legal penalties applicable to him/her in case s/he commits a crime. There is ample evidence to show that both the general public and potential offenders have little or no knowledge of the penalties which they can be subjected to.

Aptly put :- About-to-be lawbreakers don’t look up penalties in the law books; they plan, if at all on how to avoid being caught

b) Rationality Fallacies : –

A major assumption of deterrence theory is that potential offenders are rational decision makers. However, a large number of crimes are committed in a fit of rage or anger, or when the offender is clinically depressed, or are motivated out of strong
emotions such as revenge or paranoia. In circumstances such as these, deterrence is unlikely to operate since the actor is not likely to give due weight,or even a cursory consideration to what penalties might be imposed on him/her subsequently; the focus being on the emotion driving his/her state of mind.

Theorists argue that the assumption in criminal law that the harsher the punishment, the
less likely it is to be committed is not true.

While deterrence by death penalty falters on an individual level , it does serve as a public deterrence , i.e. , it keeps the public aware of not to commit crimes that may lead to capital punishment.It acts as a fear that may stop one from pursuing momentary passion for crime.It acts as a manifestation of social values and society’s stand against certain heinous crimes.

B) Retribution : –

There are two accounts of retribution – one considers retribution as revenge. The other states that retribution does not demand committing an equivalent act on the offender, as is suggested by the “eye for an eye” philosophy (“mirror punishment”). It rather
advocates a measured and appropriate level of punishment for the offender’s conduct.

Revenge based retribution is denounced by SC , instead it upheld that retribution as punishment deserved by offender. Hence it is argued that capital punishment as a retributive justice is not a justified punishment. But then , separating  retribution as revenge and retribution as deserved is blurred and thus tagging capital punishment as a retribution as revenge is far simpler generalization of a far more complex issue.

C)Incapacitation:-

The theory of incapacitation advocates dealing with offenders in such a way that they are not in a position to re-offend. It is generally used as a justification to impose longer sentences on repeat offenders, “dangerous” criminals and “career criminals.” Capital  punishment is the most extreme form of incapacitation, since it implies taking the life of
the offender to ensure that he/she does not offend. A person is sentenced to death using the incapacitation rationale if it is determined that his/her existence causes an unreasonable threat to society.

On this ground life imprisonment may be argued as a better option than capital punishment as both incapacitates. But the difference is probably an economic one. If a person is not wanted in the society being a threat to it , the rationale to keep one imprisoned for life defeats the purpose of prisons as correction houses.Both the penalties are awarded when it is established that the individual is beyond reform , so keeping one alive till end of one’s life is a costlier burden on the state, especially for a state that is mired in poverty, inequality and many other social ills.

It may seem illogical and probably immoral  to equate one’s life with economic aspects and weigh the options, but as the reality stands today ,owing to our economic development of state we don’t have enough health infrastructures and many die in the absence of basic healthcare facilities.In the same note of comparison it make no rationale to keep one imprisoned for life. So awarding life sentence instead of death penalty does not make justice more prudent by any standards.

D)Unique Condition of India :-

To compare , India with other societies would be a wrong proposition.Being a vast and diverse county with varying values of communities , it is essential that the rule of law must prevail , not only in literature but in spirit .Enforcement of rule of in such a diverse society is a humongous task.Judiciary essentially dispenses justice to individuals and deals with individuals on a case by case basis .On the contrary Government functions are completely different , it deals with the society as a whole and not on a individual basis.Thus while parliamentarians took recourse to expand the scope of death penalty , the law commission report headed by judiciary panelist , with inputs from various intellectuals recommended its abolition .And in this context , India , stands apart from any other country and so does it’s legal and judicial system and capital punishment.

E)Proportionality :-

Censuring the offender and communicating society’s disapproval of his/her actions is a primary goal of the theory of proportionality.The severity of the sentence is an important consideration for the theory of proportionality, since a disproportionate or severe punishment overpowers the element of censure. Deciding the proportionality has been a discretion of judges and rests on arbitrariness .Whether a death penalty is a proportional justice or not is largely dependent on the circumstances and culpability of the offender.

Recent case of Hanging of Yakub Memon is a case point.If an act terrorism or a conspiracy of terrorism , that resulted in death of hundreds of people , should the offender be awarded death penalty ? Oddly enough,the act of terrorism was committed in 1993 and execution occurred in 2015. The time difference between the two events has a telling on its own. Recently,i.e in 2015 ,  a larger section of media , both print and television has advocated for abolition of death penalty and commutation of life for accused ; however in 1993 (till the last decade of 20th century) the same section of media had not advocated or so to say debated the use of death penalty when it was awarded to the offender.It is well know that the accused was hanged as he was found guilty on many counts ; but what is missing is concept that  terrorism that killed 100 (say) lives but it terrorized 100crore .Clearly the deceased were neither the target nor the victim of terrorism , it is the rest of the country , or so to say all of humanity was the target and they were the victim.

In this context , the judiciary can convict only on the facts that 100 lives were lost , but it can not ponder upon on the fear of 100 crore. And this is the reason why even though death penalty is no deterrence to terrorist ( given that they were on a suicide mission), yet it has to awarded in case of terrorist convictions and loss of life. Because , even if a terrorist is on a suicide mission , yet till he draws his last breath , he hope or plans to escape the consequence as survival is the basic instinct of human life and every offender never thinks he will be caught.

So proportionality of penalty has to be judged on case by case basis and abolishing a particular sentence by generalizing or categorizing the crimes as per convenience will be a gross disproportion.

F)Public Opinion:-  Public opinions as usually reactionary and so is public.Hence judicious balance is required while weighing the option of penalty  and due to this very reason we have witnessed ‘mob justice’ and ‘media trials’ on the matters that are sub-judicial.Public opinion does influence the courtrooms and parliament alike.So abolition of death penalty by generalizing that it does not have deterrence or disproportionate or harsh retribution of revenge is illogical.

G)National Security and Terrorism : – As stated above death penalty is no deterrence to the terrorists however it plays a great deal on public psyche and brings some form of solace to the victims and public at large.

Conclusion:-

Human values and Public opinion has great emphasis on shaping the society and the public should be convinced to move towards abolition of death penalty gradually and public consensus building is essential in this regard.Abrupt act is best avoided.Moreover given man’s natural inclination to transform his society to be more humane , it is essential that capital punishment must be abolished , but before this can be achieved , it is a prerequisite necessity that the public displays maturity.Complete abolition probably  will take some moretime , but the recourse to capital punishment can be restricted if not by law then at least by practice .