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Death Penalty: Case for Its Abolition

Author(s): Monica Sakhrani and Maharukh Adenwalla


Source: Economic and Political Weekly, Vol. 40, No. 11 (Mar. 12-18, 2005), pp. 1023-1026
Published by: Economic and Political Weekly
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IPerspectives

Death

Penalty

Case for Its Abolition


India has retainedthe death penalty on the ground that it will be
awardedonly in the 'rarestof rare cases' and 'for special
reasons'. Infact, India is one of 78 retentionistcountriesand has
even retainedthe deathpenaltyfor political offences. The Supreme
Courtalso has refusedto lay down a clear distinctionof what
constitutes 'rarestof rare cases' and left it to the discretionof
judges hearing the case, knowingthat this would lead to a differing
set of results.But as this article argues, the deathpenalty needs to
be opposed on just not moral grounds but also because of the
political economyof crime and punishment.
MONICASAKHRANI,
ADENWALLA
MAHARUKH

"Tf the security guards behave in this


| manner who will guard the guards?

LThe faith of the society by such a


barbaricactof the guardgets totally shaken
and its cry for justice becomes loud and
... a cold blooded preplanned brutal
murder, without any provocation, after
committing rape on an innocent and
defenceless young girl, by the security
guard certainly makes this case a 'rarest
of the rare'cases which calls for no punishment other than the capital punishment".
Thus spoke Justice A S Anand while
confirming the death penalty given to
Dhananjoy Chatterjee.1 These sentiments
were shared by a majority of the people
and the media 10 years afterthey were first
uttered. Public outrage brought back the
debate on death penalty centre stage in a
case which abolitionists found difficult to
defend. However, the aftermath of the
hanginghas led to a plethoraof issues which
were ignored and brushed aside such as
the emergence of the hangman as a role
model and the number of mock hangings
leading to deaths of children. The impact
of punishment in brutalisation of society
is no more a rhetoric issue, but a reality.
India has retained the death penalty on
the ground that it will be awarded only
in 'the rarest of the rare cases' and for
'special reasons'.2 In fact, India is one of
the 78 retentionist countries (118 are

Economic and Political Weekly

abolitionisteithercompletelyorpartially)
and has even retainedthe deathpenalty
for politicaloffences.Deathpenaltywas
challengedas being unconstitutionalin
the SupremeCourt in Bachan Singh's
case,3anargumentwhichwasrejectedby
the SupremeCourt.The courtshave repeatedlyheldthatthedeathpenaltyis not
unconstitutionaland does not offend
Article21 of the Constitutionof India.In
a threeMachhiSinghvs Stateof Punjab,4
of
this
court
the
bench
following
judge
decision in BachanSingh, observedthat
therarestof rarecasesis whenthemurder
is committedin an extremelybrutal,grotesque,diabolical,revoltingor dastardly
mannerso as to arouseintense and extreme indignationof the communityor
whenthemurderis committedforamotive
whichevinces totaldepravityandmeanis in a dominatness, wherethe murderer
ing positionor in a positionof trust,or
a murderis committedin the course of
betrayalof the motherlandor whenmurder of a memberof a scheduledcaste or
minoritycommunity,etc, is committed
not for personalreasonsbut in circumstances,etc,whicharousesocialwrath.Or
whenthecrimeis enormousinproportion,
as in the case of multiplemurders,say,
of alloralmostallthemembersof a family
ora largenumberof personsof aparticular
caste,community,orlocality,orwhenthe
victim of murderis an innocentchild, a
helplesswoman,theoldorinfirm,orwhen
the victimis a personvis-a-viswhomthe

murdereris in a positionof domination


or trust,or when the victim is a public
figure generallyloved and respectedby
thecommunityandthemurderis committed for political reasons.The court lay
downthe followingpropositions:(i) The
extremepenaltyof deathneed not be inflictedexceptin gravestcases of extreme
culpability;(ii) the circumstancesof the
'offender'also requireto be taken into
consideration
alongwiththecircumstances
of the 'crime';(iii) life imprisonmentis
the rule and deathsentenceis an exception;and(iv) a balance-sheetof aggravating and mitigatingcircumstanceshas to
be drawnup and a just balancehas to be
struckbetween the aggravatingand the
beforethe option
mitigatingcircumstances
is exercised.Thecourtthereafter
observed
that in order to apply these guidelines
the followingquestionsmaybeanswered:
(a) Is theresomethinguncommonabout
the crime,whichrenderssentenceof imprisonmentfor life inadequateand calls
for a death sentence? and (b) Are the
circumstancesof thecrimesuchthatthere
is no alternativebut to imposethe death
sentenceeven afteraccordingmaximum
weightageto themitigatingcircumstances
which speak in favourof the offender?
TheSupremeCourt,however,hasmade
its intentionsclearby refusingto laydown
a starkdistinctionof whatconstitutesthe
'rarestof the rarecase' and left it to the
discretionof the judges hearingthe case
despiteknowingthatthesamewouldlead
to a differingset of results. Ultimately
each judge's conscience and political
beliefs dictatesthe dictum.Thus,though
the courtwas shockedby the mannerof
the offence and the fact thatthe security
guardhadrapedandmurderedan 18-year
old girl, in Soni Thomas's case, the
SupremeCourt overturned the death
penaltygiveninthecaseof rapeandmurder
of an 11-yearold girl by the co-paying
guest, and in MohdChaman'scase,5the
courtgave a life sentencefor the murder
and rapeof a one and half year old girl.
The murders were all equally brutal
andshocking and arguablyfulfilled the
'rarestof the rare'criteria,but the court
for reasonsrecordedin thejudgmentdid
not deem fit to give capitalpunishment.
This differencein the politicaland legal

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1023

of thejudgesis moststarkly
understanding
seeninKrishnaMochi's case.6Inthiscase,
justiceM B Shahacquittedtheaccusedfor
insufficiencyof evidenceandthemajority,
butjusticesB N AgarwalandArijitPasayat
not only foundthe evidence sufficientto
convictbutalsoenoughto puttheaccused
to death. According to the judges, the
offence by militantswhich has been describedby them as "caste war between
havesandhavenots"was one of extreme
depravityand proportionalto the crime.
In RajaRam Yadavand Othersvs State
of Bihar,7the SupremeCourtheld thatin
the case of a feud between rajputsand
yadavsthe retaliatorykillings by yadavs
couldnotbe heldto be deservingof death
penalty.Similarlyin RamjiRai vs State
of Bihar8the SupremeCourtheld that a
caseof triplemurderby a mobbychopping
off the bodiesof the victimswas not the
rarestof rare case. In Kishori vs State
(NCT)of Delhi9the SupremeCourtcommutedthe deathof the accusedwho had
threemembersof afamilyduring
murdered
the Sikh riots in Delhi.
Thejudgmentsdo not providea clue as
to whatconstitutesthe 'rarestof the rare'.
The impossibilityof laying down guidelines could lead to an arbitrariness
of the
decision and also amount to cruel and
degradingpunishment.The rationaleof
of thecrimeandaggravatproportionality
ing circumstances,in practice,have no
objectivityas one cannot objectify that
'this'minus'that'equalsdeath.Theabolition of the deathpenaltyhas been argued
mainlywithinthe liberallegal framework
as it fails to achievethe statedobjectives
of punishment,i e, deterrenceand just
deserts.CesareBeccariawrotein 176410
thatcapitalpunishmentis foundedon vengeanceand retribution,and not on reformationof the criminalsandpreventionof
futurecrimes, which is the purpose of
punishment,i e, the deterrenceargument.
The retributivistsalso argue that capital
punishmentis cruel and degradingahd
andopposedto theorigidisproportionate
nal social contract,which does not give
the state the right to take life. There is
considerableevidence to support these
arguments.Scientificstudieshaveconsistentlyfailed to find convincingevidence
thatthe deathpenaltydeterscrime more
effectively than other punishments.The
mostrecentsurveyof researchfindingson
therelationbetweenthedeathpenaltyand
homiciderates,conductedfor the United
Nations in 1988 and updatedin 2002,
1024

concluded that "it is not prudentto accept


the hypothesis that capital punishment
detersmurderto a marginallygreaterextent
than does the threatand application of the
supposedly lesser punishment of life
I
imprisonment". It also concluded that
"The fact that the statistics... continue to
point in the same direction is persuasive
evidence thatcountriesneed not fearsudden
and serious changes in the curve of crime
if they reduce their reliance upon the death
penalty".12 Thus there is no evidence to
support that crime rates decrease with the
imposition of the death penalty.

1. .. .......

v,,A

K PEOPLE
SC
Editors
Bha-

t &Gopal KBhargava

Crime and Punishment


Recent crime figures from abolitionist
countries fail to show that abolition has
harmful effects. In Canada, the homicide
rate per 1,00,000 population fell from a
peak of 3.09 in 1975, the year before the
abolition of the death penalty for murder,
to 2.41 in 1980, and since then it has
declined further. In 2002, 26 years after
abolition, the homicide rate was 1.85 per
1,00,000 population, 40 per cent lower
than in 1975.3 From the retributivist or
just deserts argument too, which focuses
on the moralityof punishmentandjustifies
the same as it is given for moral wrongs
committed by autonomousindividualswho
are morally accountable for their actions,
punishment should be for the offence
committed and should be commensurate
with the same. While retributivistsdo not
deny that punishment has certain
consequentialist concerns like prevention
of crime, it is not the sole purpose of
punishment. The main purpose of punishment is 'censure' for a moral wrong or
'burden' for the unfairbenefit gained from
the crime. The punishment should not only
be such as to negate the benefit of the
crime, but also proportionate to the offence. The retributivists are opposed to
death penalty for reasons that utilitarians
support and also for reasons of fallibility
of judgment. A judgment being given by
humanbeings based on evidence produced
in courts, the possibility of human error
cannot be ruled out and the irreversibility
of death penalty makes it dangerous and
opposed to the principlesof proportionality.
Since 1973, 113 prisoners have been
released from death row in the US after
evidence emerged of theirinnocence of the
crimes for which they were sentenced to
death. Some had come close to execution

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of death. Recurring features in their cases


includeprosecutorialor police misconduct;
the use of unreliable witness testimony,
physical evidence, or confessions; and
inadequate defence representation. Other
US prisoners have gone to their deaths
despite serious doubts over their guilt. The
then governor of the US state of Illinois,
George Ryan, declared a moratorium on
executions in January 2000. His decision
followed the exoneration of the 13th death
row prisoner found to have been wrongfully convicted in the state since the US
resumed executions in 1977. During the
same period, i2 other Illinois prisoners
had been executed. In January 2003 governor Ryan pardonedfour death row prisoners and commuted all 167 other death
sentences in Illinois.14 In India where
tortureas a means of evidence gathering
is in practice, the number of convicts who
are actually innocent can be only imagined. In Joginder Singh vs State of UP15
the Supreme Court while dealing with the
issue of custodial torure,quoted the National Police Commission's thirdreportwhich
while referringto the quality of arrests by
the police in India mentioned power of
arrest as one of the chief sources of corruptionin the police. The reportsuggested
that, by and large, nearly 60 per cent of
the arrests were either unnecessary or
unjustifiedand that such unjustified police
action accounted for 43.2 per cent of the
expenditure of the jails.
However the problem with the liberal
legal discourse is that the same argument
could be used to argue the normatively
opposed value. And the deterrence and
proportionalityprinciple are used by retentionists too. This is most glaringly seen in
the two judgments of the US Supreme
Court. In Furman vs Georgia,16 the court
struck down the death penalty stating that
it was cruel and unusual punishment in
violation of the eighth and 14th amendments. However in Gregg vs Georgia 17the
same court held that death penalty was
constitutional and held that capital punishment for the crime of murdercannot be
viewed as invariably disproportionate to
the severity of that crime and that the
concerns expressed in Furman that the
death penalty not be imposed arbitrarily
or capriciously can be met by a carefully
drafted statute that ensures that the sentencing authority is given adequate information and guidance, concerns best met
by a system that provides for a bifurcated
proceeding at which the sentencing

Economic and Political Weekly

authorityis apprisedof the information judgments.A study of ChicagoTribune,


relevantto the impositionof sentenceand quotedin Hood's book, of the 131 death
providedwith standardsto guide its use row inmates executed during George
of thatinformation.The views expressed Bush's tenureas governorof Texas rein Gregg'scase could be well thatof our flected that43 of them were represented
SupremeCourt.The same liberal argu- by defence advocateswho were publicly
mentcanbe usedto supportandto oppose sanctionedfor misconduct,40 of them
death penalty.The death penaltyis de- presented no evidence to the court or
mandedmost vociferouslyin the case of providedonlyone witnesson theirclient's
a poor offenderfor whom imprisonment behalfand 29 used psychiatrictestimony
is not considereda harshenoughpenalty condemned as untrustworthy by the
as his life outside prisonmay be harder AmericanPsychiatricAssociation.8 Justhan life imprisonment.Reformationis tice P N Bhagwatiin his dissentin Bachan
also opposedfor this reason- it is seen Singh's case has made two astuteobseras a rewardfor punishment.Hardshipas vations. Firstly, that it is impossibleto
a normativevaluein punishmentwill sup- eliminate the chance of judicial error.
port harshpenaltiesfor the poor whose Secondly, that the death penalty strikes
lives areharder.Thestatisticsalso beg the mostly against the poor and deprived
questions: Would death penalty sections of society.
bejustifiedhadit beeneffective?Anddo
at least some of the cases where death Distribution of Punishment
penaltywas awardedsatisfythe 'rarestof
the rarecases' criteria?
Hood'sbookon the basisof studiesand
The deathpenaltyhas to be opposedon datahas notedthat"thosewho kill white
not just moralgroundsbut also because personsareconsiderablymorelikelyto be
of the political economy of crime and sentencedto death than those who kill
punishment.Normativetheoriesthat ad- blacks, regardlessof the race of the devocate justice and equal respect for all fendant".Thoughonly 50 percent of hooverlookthesystemicinequities micidalvictimsarewhites,statisticsshow
individuals
thatexist and targetdifferentindividuals that 80 per cent of those executedin US
in a differentmanner.This appearsto be since 1977wereexecutedforhavingkilled
a systemic failure, but is a more insti- a whiteperson.19Thisracialdiscrimination
tutionalisedresponse embedded in the is furtherrevealedby the fact thatout of
natureand role of the State. Individuali- the 749 personswho wereexecutedin the
sationof crimehelps maintainthe facade US between1977 andthe end of Decemof neutralityof crime and punishment. ber2001, only 11 werewhitepersonswho
Marxistcriminologists,RuscheandKirch- hadkilledblackvictims.20Moreover,the
heimerstate that the penal practiceof a deathsentenceis rarelyawardedwhenthe
societyis functionallyadaptedtotheneeds murdervictimis black:a studyconducted
of the labourmarket:changingformsand in Texas in the 1980s observesthat 13.2
uses of punishmentcan be explainedby percentof blackpersonswhokilledwhites
referenceto thechangingcharacterof the weresentencedto deathwhereasonly 2.4
economyandto oscillationsin the labour per cent of whites who had killed black
market.Blue-collarillegalitiesarebrought personswereaccordedcapitalpunishment.
intothedomainof criminallawandwhite- Thesefiguresbelietheassumptionthatthe
collar illegalities constitutethe field of judiciaryis abovebiasandpublicpressure.
civil law. The biasesin the criminallegal
Does thatmeanthatone condonesany
systemagainstthe poorarethusinbuiltto crime?Bonger,anotherMarxistcriminolothe system. Industrialisation
and urbani- gist arguesthat capitalistsociety breeds
sationled to greatersegregationbetween crime. Criminalityaccordingto him has
the classes. The upperclasses perceived its sourcesin needanddeprivationon the
a greaterthreatfromthielowerclassesand partof thedisadvantaged
sectionsof society
thustheneedfordiscipliningthemthrough andmotivesof greedandselfishnesswhich
the agency of the criminallaw adminis- aregeneratedandreinforced
in competitive
- thepolice. capitalistsocieties. Accordingto studies
tration,andits administrators
The substantiveand procedurallaws re- of the 1.3 million criminal offenders
of handledeach day by some agencyof the
latingto crimeand the administration
justiceall reflectbiasesin thesystem.This US correctionalsystem,the vastmajority
has been reflectedin manystudiesand is (80 per cent) are membersof the lowest
apparentinthereadingof thedeathpenalty 15 per cent incomelevel.21GarySlapper

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1025

points out that more deaths have taken


placedue to occupationalhazards,due to
negligence of corporationsthan due to
homicide.Most of the formerwere foreseen but neglected.Most of these deaths,
whichcan be consideredmorecalculated
and cold-bloodedthan many 'murders',
arenoteven prosecuted.The definitionof
crimeas an individualwrongdoingwhere
every person is punished for his own
wrongdoing, requiring the requisite
mensreaallows mostcorporatecrimesto
go unpunished.As Slapper puts it, "In
orthodoxmorality,intentionto do wrong
is regardedwith greaterabhorrencethan
recklessnessas to whetheror not harm
occurs, but as Reiman (1979: 60) has
argued,a reverseformulacan be just as
cogent:if a personintendsdoingsomeone
harmthereis no reasonto assumethathe
or she poses a widersocial threator will
manifesta contemptfor the community
at large, whereas if indifference or
recklessnesscharacterisesthe attitudea
personhas towardsthe consequencesof
his or her actionsthen he or she can be
seen as having a serious contempt for
society at large."22
Criminologistshave also pointed out
thatthoughcriminalconductis no lower
class monopolyandin fact does not do as
greata social harmin termsof monetary
lossandphysicalinjuryanddeath,ascrimes
committedby therich,thesameis nottrue
of distributionof punishmentwhichfalls,
andsystematicallyon the
overwhelmingly
poor and disadvantaged.
The administrative
division of investigationandprosecutiongives tremendous
powerto thepoliceandotherinvestigative
agencies,andthecourtshaveto acton the
basis of the evidence collected by these
agenciesleavingscope forcorruptionand
caste,class, religiousand racialbiases to
go unchecked.Discriminatorydecisionmaking throughoutthe whole criminal
justice system ensures that the socially
advantagedareregularlyfilteredout:they
aregiventhebenefitof doubt,oraredefended as good risks or simply have access
to the best legal advice.23Rusche and
Kirchheimer
pointout thatpenalregimes
have to be made 'less eligible' than the
lives of the poorest and in a country
like India where the majorityare poor,
makinglife 'less eligible' after punishmentwouldleave little optionapartfrom
death, as social disadvantageis seen as
of thecriminalto society
'dangerousness'
at large. Public opinion is portrayedby

1026

governmentsas thereasonforretentionof
the deathpenalty,but this is a false argument of governmentswho in principle
wantto retainthis tool for use in furtherance of theirendsas is evidentin Krishna
Mochi'scase. The deathpenaltymay not
have achievedany of its statedobjectives
and may have led to the killing of many
innocentpeople,but is popularas it performs many functions- it expungesthe
criminalfrom society, drains'dangerous
criminals'of theirpowercompletelyand
it hasa symbolicfunctionas
permanently,
it warnsotherdeviantsof the sameresult,
divertsthepublicmindfromtherealissues
of unequaldistribution,controlsthe poor
by instillingin thema moralindignation
against the offender, making them
internaliseandinstitutionalisethe narrow
and sectarian concepts of justice and
morality,stopsthequestioningof itsvalues
and biases and reinforcesthe power and
supremacyof the statewhichincludesits
power to take away life at will.24[

Notes
[Paper presented by Committee for Protection
of Democratic Rights at a Public Meeting 'AgainstCapitalPunishment'-held on October 1,
2004.]
1 DhananjoyChatterjeevs Stateof West Bengal
f994 SOL Case No 275.
2 Section 354(3) of the Code of Criminal
Procedure.

3 Bachan Singh vs State of Punjab,AIR 1980


SC 898.
4 1983(3) SCC 470.
5 2000 SOL Case No 705.
6 2002 CrLJ 2645.
7 1996(9) SCC 287.
8 1999 SOL Case No 633.
9 1999 SOL Case No 760.
10 Cesare Beccaria, On Crimesand Punishment
(1764), TransH Paolucci (1963), Indianpolis:
Bobbs-Merrill.
11 RogerHood, TheDeath Penalty:A Worldwide
Perspective, Oxford University Press, third
edition, 2002, at p 230.
12 Ibid, 214.
13 http://web.amnesty.org/pages/deathpenaltyfacts-eng.
14 Ibid.
15 1994 CriLJ 1981.
16 408 US 238 (1972).
17 428 US 123 (1976).
18 Op cit, supra note 14.
19 Amnesty International:USA (1995).
20 NAACP Legal Defence and Educational
Fund Inc.
21 Jeffrie G Murphy,'Marxismand Retribution'
in Anthony Duff and David Garland (eds),
A Reader on Punishment(Oxford University
Press, Oxford) (1994) 47 at p 60.
22 Gary Slapper, 'CorporateManslaughter:An
Examination of the Determinants of ProsecutorialPolicy' (1993) 2 Social and Legal
Studies 423 at 430.
23 Anthony Duff and David Garland (eds), A
Reader on Punishment (Oxford University
Press, Oxford) (1994) at p 306, most of the
references to criminologists views are from
this book.
24 These categories have been adapted from
Matheison quoted in ibid.

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