A sufficiently just and analytically coherent system of criminal law is an unrealistic expectation- Allen Norrie
As was expected, the hanging of the convicts in Nirbhaya gang rape case has evoked sharp reactions and criticism from several quarters including the Amnesty International, the International Commission of Jurists and the United Nations. The same has reignited the debate on the tenability of death penalty in the modern society. On the other hand, the award of death penalty in the present case has, by and large, been welcomed across all quarters in India. It was the 'certainty' of the punishment that echoed more loudly in the social reactions than its 'severity'. The death penalty debate is invariably stretched too far disallowing us to think its application and utility in a precise manner.
Here, I intend to pose some critical arguments which travel to the core of this debate unravelling some facets of this discourse. Firstly, the reality is that the death penalty is a part and parcel of criminal laws in India. It is a statutory punishment available to the judiciary in the delivery of justice. Whether it is correct or inhumane, or even deterrent, are larger questions that challenge the criminal justice system of the country as a whole. But as long as it is so available, its' use is inevitable. Primarily, therefore, all radical arguments in favour of its abolition ought to focus on the manner of its exercise. The abolition argument in India is the product of the frustration stemming from the alleged arbitrariness and resultant disparities in the sentencing process.
Secondly, the argument of death penalty not having any effect on crime rate also does not seem very convincing. Linking the death penalty with the prevention of crime is an incorrect proposition given that the frequency and probability of awarding death penalty in India is highly limited. The lack of certainty may be responsible for death penalty not being effective in crime prevention.
Moreover, even though the statistical evidence doesn't confirm that death penalty works as a deterrent, but it doesn't show that deterrence doesn't work either. The points on both sides of this argument are valid for most forms of punishment under our criminal laws at large and as such the issue is not confined to death penalty alone. It is also untrue that the death penalty is given solely to deter other criminals – deterrence and prevention being only a part of the rationale behind punishments. Criminal justice system in India largely works for 'general deterrence' as against 'specific deterrence'.
Thirdly, though it is not openly acceptable in today's discourse, retribution has always been an underlying objective of the criminal justice system. Victims and society both want the guilty to be punished. It is in this that context death penalty helps satisfying individual and society's sense of retribution. This rationale behind death penalty is not different from the other forms of punishment. It is only about severity or simplicity of the offence. Applying the doctrine of proportionality, the severity of the act committed and other aggravating factors, death penalty may very well emerge as the most appropriate response. Criminal law and its social foundation are inseparable and the justification to death sentence does not flow from the law, it emerges from the societal expectations. Arguably, criminal law has not yet reached to the level of maturity capable of reforming or altering social expectations that may reject death penalty.
Fourthly, to be reasonable, the death penalty needs to perfectly or proportionally – fit the crime. Our criminal jurisprudence is replete with discussions as to when a case becomes fit for death penalty, albeit with much ambiguity. The factors of discretion and arbitrariness in sentencing are indeed crucial issues. However, these are not unsurmountable challenges. The Supreme Court in the Dhananjoy Chatterjee case observed that guilty people deserve to be punished in proportion to the severity of their crime.
The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. It must be mentioned here that in this regard, the use of death penalty has become principally unsound.
It is already settled by the court that death penalty is not mandatory – it is not the norm and there are several stages designed to make sure that the punishment given is in fact proportionate to the crime committed. If the existence of death penalty can be justified in select cases on grounds of proportionality, the Nirbhaya case is a fit example as it satisfies most ingredients of this punishment quite reasonably. Even the Supreme Court while affirming the death penalty was led to comment on the nature of offence as being committed in a "devilish manner" and manner in which they played with the victims' identity and dignity as being "humanely inconceivable."
Fifthly, the debate on death penalty often tries to generate a common narrative applicable to all cases whereas these cases differ drastically in terms of nature and manner of crime commission, aggravating and mitigating factors and profile of the victim and the offender. Our senses get blunted by landmark cases of injustice and arbitrariness which are often cited to decry this form of punishment. Even so, the acceptability of death penalty should not be seen in generalised terms.
The death penalty debate world over is devoid of contextual analysis which is capable of altering the contours of the debate itself. A case specific approach ascertaining the suitability of death penalty is imperative. The quest of justice varies significantly and there may be cases where individual sense of justice, even from the lenses of the judiciary and society, would be contingent upon the award of death penalty.
Lastly, death penalty in India co-exists with all other forms of punishments and alternatives in the direction of reforming, rehabilitation of offenders and access to justice goals of criminal justice. Therefore, the argument that access to justice for women and prevention of sexual violence are more important and ought to be given more consideration does seem to be valid. In fact, having death penalty on the book of statute does not bar the state and others to mobilize non-punitive and progressive measures in the direction of prevention of sexual violence and the preservation of gender justice in India.
The countries with or without death penalty face almost similar challenges in crime control and criminal justice reforms. Reforming criminal justice in India as such is not necessarily contingent upon the abolition of death penalty as we have constructed a regime of criminal law where the liberal and harsh reactions (e.g. open prisons and death sentence) co-exist. A reformed criminal justice system may even bring more clarity in the application of death sentence in this country. The underlying argument is therefore about whether we need to throw the baby out with the bath water by abolishing death penalty or do we merely need to reform the current practice and procedure relating to death penalty. In any case, our efforts in the both directions must continue.
Views Are Personal Only.
(Author is Professor and Chairperson of the Centre for Criminology and Victimology, National Law University Delhi. He is the President of Indian Society of Victimology. The inputs given by Mr. Ankit, Research Associate are acknowledged.)