By Bhanu Chopra, Government Law College, Mumbai.

“The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”[1]

The concept started with the Code of King Hammurabi of Babylon, the same code that is famous for its “an eye for an eye” punishment. This is the first known instance of having death penalty as a punishment under codified law. Since then, to demanding capital punishment for the Nirbhaya gang rape culprits, apparently, we have come a long way. Cases like these, wherein we are filled with shame and remorse for being a part of the same society that has produced those culprits, wherein we are taken aback by the severity of crimes human beings are capable of committing; it is in cases like these wherein we feel and we demand that culprits like these not only don’t deserve to be free humans, but don’t deserve to be humans at all. We feel that the crimes they committed are so horrendous that it is only just to kill them, after all that would calm our conscience, won’t it? Very often, we forget that in demanding their death, we are not standing up for justice, but revenge. Not punishment but personal satisfaction. ‘An eye for an eye’.

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There are three basic theories of Punishment – the reformative theory, the deterrent theory, and the retributive theory. The reformative theory suggests that the basic purpose of punishment should be reformation of the criminal. The deterrent theory suggests that punishment should mainly be focused around preventing further rime by setting an example. The retributive theory suggests that retribution or ‘paying back’ for the crime should be the main purpose.

The basic argument against capital punishment stems from the fact that no one is born evil, it is the society that shapes their mindsets, and it is the society that teaches them to differ between wrong and right. I respect women, because I was taught that is the right thing to do. Some people, on the other hand are taught that women are inferior creatures to be used at their whim. Now if a person has been taught, since day one, that it is okay to treat women as objects, why would that person refrain from molesting or raping a woman for his pleasure? Such criminals are in want of reformation, somebody to teach them the concept of wrong and right back from the scratch. But reformation is a very important part of punishment, something we take away from the convicts if we award them a death sentence. A chance to reform, a chance to learn again what is right and what is wrong, only this time from right minded people, people who do not have a patriarchal mindset, people who would teach them to respect the law and rights of other citizens. With the right quantity and quality of psychological treatment, we can actually transform that person into someone so different that a generation later, it would be hard for people to imagine that that person could have committed such a crime. Would that not be better for the society than hanging these convicts and taking from them all the rights we accord a human being? Many would dismiss it as too far-fetched and too difficult, but then again, here we are presented with a choice between what is easy and what is right. One would hope we choose the latter. And yet, we don’t see people demanding better reformation opportunities in prisons, we don’t find people expressing grief over the condition of inmates in most of the prisons across the country. A girl has been killed and we want someone to be dead in return. Only, we would call it justice, instead of revenge.

If we look upon deterrent theory of punishment, it has been held and observed in many cases, like FURMAN v. GEORGIA[2], there is no evidence that the threat of death is more effective deterrent than imprisonment. Even in Bishnu Dayal vs State Of West Bengal, the Supreme Court of India held that the death penalty, rather than deterring murder, actually deters the proper administration of criminal justice.[3] Moreover, if one were to look upon ancient Greek literature, one would find ample of views against capital punishment.

“Though I prove them ever so guilty, I shall not, therefore advise their death unless it be expedient … I consider that we are deliberating for the future more than for the present … All states and individuals, are alike prone to err and there is no law that will prevent them; or why should men have exhausted the list of punishments in search of enactments to protect them from evildoers? It is probable that in early times the penalties for the greatest offences were less severe and that as these were disregarded, the penalty of death has been by degrees in most cases arrived at which is itself disregarded in like manner. Either then same means of terror more terrible than this must be discovered or it must be owned that this restraint is useless.” (Thucydides, 1968: 152)

This passage indicates that human nature cannot effectively be deterred by fear of death. When men venture on a precarious endeavor they are not inspired by fear of fatal consequences but by hope of successful achievement. Thus crime can be reduced, not by the severity of punishment but by careful administration and certainty of detection.[4] Not only this, statistics from countries like Canada, where Capital Punishment has already been abolished and its deterrence effect calculated by comparing crime rates of the pre and post abolishing period, clearly show that Capital Punishment doesn’t have any deterrence effect.[5] Moreover, a study conducted by FBI of the United States shows that the states in which executions were more had an increase in instances of crimes like murder, while there was a decrease in murder rate where executions were minimal.[6]

Thus, out of the three basic elements of punishment, namely, Reformation, Deterrence and Retribution, capital punishment only achieves retribution. As held by the hon’able Supreme Court, the retributive theory is incongruous in an era of enlightenment and inadequate as a theory since it does not attempt to justify punishment by any beneficial results either to the society or to the person punished.[7] All it provides is payback. It is time we move beyond that. It is time we do Justice.

[1] FURMAN v. GEORGIA 408 U.S. 238

[2] Ibid.

[3] Bishnu Dayal vs State Of West Bengal, (1979) 1 AIR 964 (India)

[4] Anasfasios ladikos, Plato’s Views on Capital Punishment, 6(2) Phronimon 49 (2005)

[5] William Bailey, Deterrence, Brutalization, and the Death Penalty: Another Examination of Oklahoma’s Return to Capital Punishment, 36 Criminology 711-33 (1998)

[6] FBI Preliminary Uniform Crime Report 2002, June 16, 2003

[7] Supra note 3

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