Capital Punishment: A Debate That We Failed To Understand


Capital punishment would certainly be one of the most debated issues, not just at the national level but at the global level. In spite of the exhausted nature of this debate, it lies open ended in the public domain. The more we exhaust this issue newer perspectives come out of it. ‘A lot has been said, less has been understood’ is an anecdote that fits well with this old debate on capital punishment. Let us take a step forward and take this debate to a more understandable and logical platform.


Acts governing capital punishment

Capital punishment can be given under the application of following acts:

  • Indian Penal Code (IPC) 1860
  • Army Act 1950, Air Force Act 1950 and Navy Act 1956
  • Commission of Sati (Prevention) Act 1987
  • Narcotics, Drugs and Psychotropic Substances Act, 1988
  • SC & ST (Prevention of Atrocities) Act, 1989

Out of the above mentioned acts, IPC is the only one which has resulted in maximum capital punishments in India.

When do they grant capital punishment?

In India, capital punishment is granted in ‘rarest of the rare’ cases. The very notion of ‘rarest of the rare’ forms the basis of this punishment and unfortunately this very notion speaks of the arbitrary nature of this law. Crimes like murder, treason, rape with murder, anti-national conspiracy etc. come under the umbrella of ‘rarest of the rare’. But not every case that results from the above mentioned crimes leads to capital punishment. Now the question of ‘extent of the crime’ comes into play and it makes the entire law arbitrary. The extent of a crime which can lead you to death sentence is solely dependent on the discretion of the judge. How two criminals equally involved in an act of genocide get to face different punishments is something that makes me question the understanding of judiciary. This notion of ‘rarest of the rare’ is nothing but a sign of helplessness of the judiciary of the country. Wondering how? Let’s find out.

Reality of capital punishments:

A case of ‘rape leading to murder’ brings people on the streets of the national capital. The entire administration including courts gets alarmed and as a result, the convicts receive capital punishment in the court judgement. Why? They received punishment not because of committing some ‘rarest of the rare’ crime but because of committing such a crime in the national capital amidst the people with high level of ‘collective moral conscience’. When the supreme court of India says that ‘collective conscience’ plays a big role in capital punishments, it leaves me in a disturbed state. Can a state give its verdict on the life of a convict on the basis of ‘conscience’ of the society?

Someone who has closely watched the Yakub Memon case would not disagree that sentencing him was nothing but a judicial method to fulfil the ‘conscience deficit’ of the Indian society. Very little is left to be said when you get to know that out of the 11 accused, sentences of 10 convicts were converted into life imprisonment and only one was left to be hanged. Such incidents in a society that preaches ‘Right to Equality’ leave me in a hopeless state of affairs.

Here two things are extremely wrong. Firstly, a judicial system should not keep ‘collective conscience’ of the society in mind while taking someone’s life. Secondly, even if ‘collective conscience’ is something to go by, it should be uniformly applicable to all the cases involving the same crime. Disturbingly, ‘collective conscience’ is something which is relative to power and money in our country. Collective conscience matters when it belongs to the elite. On the contrary, it falls flat on its face when it belongs to those Kashmiris who are left to rot in extortion cells or to those North-eastern women who have been falling prey to rapes and murders since three decades in the name of AFSPA.

Another flaw in this theory of ‘collective conscience’ is that it is established through media coverage. The recent case of ‘rape leading to murder’ in the Gurdaspur district of Punjab did not even raise the eyebrows of our media houses. As a result, unlike the Nirbhaya Case, no strict action was reflected by the courts. Is this what the Indian judiciary has come down to? Such instances compel one to believe that justice is not served but it has to be forcibly extracted using powerful means.  If you live in a dilapidated and powerless corner of the country, justice will hardly come to you as a fundamental right.

The next step

It is an understatement that the state should be capable enough to punish those who dare to put at stake the sanctity of human life. In spite of all the flaws mentioned above, it would be ignorant to say that we don’t need capital punishment. Abolition is not the answer. Irrespective of whether capital punishment acts as a deterrent to crime or not, it is important to understand the flaws in its implementation. Capital punishment, in its current state, is prone to arbitrary judgments. It is a ‘judge-centric’ phenomenon and can easily fall prey to dangerous factors like religion, caste or racial bias. Any law which is prone to such flaws should not be entitled to take away the human life.

What can be done to improve?

Major arguments that go against the capital punishment revolve around the flaws in its implementation. First and foremost, Indian lawmakers should ensure uniformity in this law. Judiciary should learn how to follow the constitutional principle of ‘Right to equality’ as far as this law is concerned. A country like India would be labelled as ‘weak’ if it treats the convicts softly. So the question of abolition is out of picture.

This system needs re-engineering in such a manner that death penalty is not biased and delayed. You cannot keep someone inside the prison for 20 years and then leave him to die in the name of justice. Between 2001-2011, out of 1400 people who have been granted capital punishment in India, 257 people have exhausted all the options available under judiciary. But only 4 of them have faced the gallows. Judiciary should understand the signal that such delayed cases sends across the country. They deteriorate the image of the judicial system, not only in the eyes of justice-seekers but also in the eyes of criminals. As they say, ‘Justice delayed is justice denied’. With a hope that this system faces a restructuring soon, I close my case.