A society's criminal law is an instrument of its state, as well as a measure of what stage they are at in its modern civilization history. If it gives the death penalty freely, then that society is still in the primitive phase of evolution and is not moving towards a modern liberal society.
People in medieval times were punished for every crime they committed, using the concept of an eye for an eye and a tooth for a tooth. It was a primitive concept, not a modern or civilizational concept. Now that society is moving forward, the death penalty should be abolished.
Only 54 countries in the world still have the death penalty and it is disappointing to see that India is one of them. This means that India stands with countries like Iran, Iraq, Saudi Arabia, and China. It is clear that we want our country to stand with Scandinavian and liberal and progressive countries, rather than Islamic and socialist countries.
Constitution and State
According to the Indian Constitution, the state's role is to preserve and protect life. If we invoke that provision of the Constitution and impose the death penalty, we are basically saying that we will kill him because he took a life.
As such, this approach holds that the state has the right to take a person's life. A state should not become vindictive towards individual vaccines, claiming that I will act on your behalf. We need to determine if we want violence and if we are passing on the right to kill to the state.
Consequently, we perpetuate state violence in this way. State violence is not what we want. We want the state to be different from the person who's causing violence, who's practicing violence. How do we make the difference between a person who's committing a crime of violence and the state that is sensing that violence is legitimate for them? We want to do away with this context of violence.
The concept of an eye for an eye will only make the world blind.
One of the main arguments in favor of the death penalty is that it acts as a deterrent and therefore should be retained, but the death penalty doesn't serve the purposes that its advocates claim it does. In the US each state has its laws, and studies had shown that States that had withdrawn the death penalty did not see any increase in crime rate, and at the same time, States that had introduced the death penalty did not register any decrease in crime. So there have been innumerable studies, including in India, the NLU Delhi as a death penalty project 39, that demonstrates that there is absolutely no deterrent effect whatsoever from the existence of the death penalty.
Impacts of the Death Penalty
Today is that there is a kind of lynch mob mentality, where the government is also baying for blood, where a lot of people are baying for blood and saying, hang him, hang him now.
This is the kind of propensity of retributive violence, which is created in a society that has the death penalty because a death penalty is a form of retributive violence by the state and it promotes this lynch mob mentality, where people have this blood thirst to kill the person. And the way collective conscience is now formed by the media by these barking anchors on the TV channels that the moment crime is committed, an investigation is going on. The prosecution and the media together, form the conscience of people saying that no, this is the way it has been committed, these are the people involved, and the media trial has already taken place before the actual trial takes place in court,
And this death penalty is a very different punishment from normal imprisonment. A person who lives on death row, that person is swinging between life and death every day. The death penalty is a cruel and inhuman punishment because it is not just about killing it is about the experience of being on death row.
When we see the socio-economic profile of such people who have been sentenced to death the empirical evidence given by the Project 39 tells us that a large number of them are extremely poor, with very low levels of educational attainment. A large number of them belong to lower caste and religious minorities. And this is true in all the countries where the death penalty is there that it goes to the poorest. It goes to the most socially marginalized.
And this is a harsh reality that among the people who are sentenced to death by the trial court, 5% of them are only confirmed by the supreme court and the more worrying statistic is that about 40% of the people end up in acquittal. The trial court has found them guilty and then they have been sentenced to death but then the higher courts find that the person should not have been found guilty only and these people usually undergo seven to ten years in jail before the acquittal from the higher court.
And if the death penalty is given to the wrong person an innocent person, it leads to such an irreversible miscarriage of justice. You can't bring back the person to life and sometimes facts are discovered later, like in the case of the Afzal guru, so it would be a terrible thing if a man has been hanged for a crime that he has not committed; in such a case, the law itself would be a murderer.
Human judgments are never so certain as to permit society to kill a human being judged by other human beings.
Moreover, the death penalty is not a punishment as it indeed results in sympathy for the criminal. People forget the crimes of the convicts and remember only what happens at the end – the execution of the death sentence. The convict to some extent becomes a hero.
Therefore, it’s better that we give life imprisonment where the person suffers his whole life for the wrongs he has committed and we abolish the death penalty because it is not a good thing for any society and that is why all civilized countries have abolished the death penalty.
Project 39A. 2022. Project 39A — Death Penalty Annual Statistics Report 2021. [online] Available at: <https://www.project39a.com/annual-statistics-page-2021> [Accessed 2 August 2022].
Hariharan, V., 2022. Death Penalty - Law Times Journal. [online] Law Times Journal. Available at: <https://lawtimesjournal.in/death-penalty/#:~:text=The%20capital%20punishment%20enterprise%20as%20it%20operates%20in,what%20can%20only%20be%20called%20a%20living%20death.> [Accessed 2 August 2022].
Team, L., 2022. Constitutional Validity of Death Penalty in India - LawLex.Org. [online] LawLex.Org. Available at: <https://lawlex.org/lex-bulletin/constitutional-validity-of-death-penalty-in-india/1458> [Accessed 2 August 2022].
This article is written by P SANSKAR NAIDU of SYMBIOSIS LAW SCHOOL NAGPUR.