Understanding the futility of death penalty

Diksha Brahma

(The writer can be reached at

(dikshabrahma03@gmail.com)

The unfortunate and brutal death of a senior doctor from Teok Tea Estate, Deven Dutta by a group of angry tea garden workers has resulted in awarding death penalty to an accused and life imprisonment to two dozen others by the trial court. This article in no manner justifies the act of crime being committed against the reputed doctor, but instead the focus of the article is on the issue of death penalty and why it proves to be afutile and an unconscionable exercise, fraught with danger in our criminal justice system.

In defence of death penalty lies the deterrence argument that the most stringent punishments will bring down crime rates. Death penalty has gained more popularity in recent year's following the Delhi gang rape case of 2012, especially in matters pertaining to the field of sexual violence and terrorism. Moreover, it is true that trial courts don't go soft on crimes and hence, we see more instances, even if exaggerated, of death penalties.

At the outset, it is pertinent to understand the legal provision and judicial decisions, particularly the Bachan Singh v State of Punjab judgment of 1980, a landmark SC judgment which upheld the constitutionality of death penalty for a crime committed under Section 302 of IPC, 1860.

Section 354(3) of the Criminal Procedure Code, 1973 (CrPC) makes life imprisonment the rule and death penalty an exception in case of a charge of murder under Section 302 of IPC, 1860 wherein the sentencing judges have to give 'special reasonings' behind the imposition of a death sentence to the accused. However, the legislature did not clarify as to what constitutes 'special reasons.'

In a plethora of judgments, the Supreme Court took upon itself to elaborate on the term 'special reasons' starting from the landmark case of Rajendra Prasad v State of Uttar Pradesh in 1979 wherein J. Krishna Iyer stated that the term 'special reasons' must necessarily entail factors relevant to the criminal or the offender and not to the nature and gravity of the crime that is, while pronouncing a death sentence, the sentencing judge must take into the account the personal background of the offender in terms of his social, mental, emotional, psychological circumstances of the offender. While putting emphasis on individualized sentencing, the court further went on to state the in view of public order, peace and security and public interest, death sentence could be awarded to the offender for an offence u/s 302 of IPC as well. The problem with this judgment is two-fold. Firstly, utilitarian concepts like public order, peace and security, public interest are vague and uncertain terms which give room for unfettered discretion and arbitrariness on the part of the sentencing judges and secondly, by creating these categories of crime, the court effectively diluted the commitment towards achieving the goal of delivering justice in terms of individualized sentencing.

The most landmark judgment on the issue of death penalty is perhaps the 1980 case of Bachan Singh v State of Punjab wherein the SC was tasked to decide on two things— first, the constitutionality of death penalty as regards an offence u/s 302 of IPC, 1860 and second, what constitutes special reasons.

The court in this case upheld the constitutionality of death penalty as it fulfils the test of reasonableness and proportionality under Article 19 and Article 21 of the Indian Constitution. As regards the latter, the court set out guidelines in order to limit discretion on the part of sentencing judges by stating that even though there is no straitjacket formula to determine what constitutes 'special reasons' under Section 354(3) of CrPC, 1973, death penalty must be awarded in rarest of rare cases by taking into account the aggravating and mitigating circumstances as regards the crime and the accused in question. Moreover, 'special reasons' also must unquestionably and undeniably foreclose the question of life imprisonment as an alternative punishment to death penalty.

Now, the aggravating circumstances could be gauged easily by the court of law from the case files presented before it by the prosecution whereas the same is not true as regards mitigating circumstances which entail the process of engaging in detailed social investigation and interview with the offender and his/her family, close friends and relative to determine the social and personal context or characteristics of the offender for no one is born with an evil DNA and there is a popular saying that no one is born a criminal, rather criminals are made.

The criminal justice system of our country is quite oppressive as it is observed that death row prisoners, undertrial prisoners languishing in jails almost always hail from the most marginalised and poor communities. This is because in the absence of an efficient legal aid system, these accused have no access to proper legal representation and even if they do, lawyers are not per se interested to delve into the mitigating circumstances or personal history because they are paid abysmally low. Imagine a high-level bureaucrat or big billionaires like Vijay Mallya, Nirav Modi being awarded death sentence on charges of corruption. It is a different thing that these privileged offenders stand above the law but most importantly, they have the economic capacity to be represented by the best of the best lawyers who would present the court of law with the strongest pieces of evidence and mitigating factors surrounding the case. In such a scenario, the jurisprudence or discourse on the issue of death penalty in India would completely change altogether.

But unfortunately, in the absence of such an exercise, most of the judges have no option but to see the offender as a villain on the basis of presentation of aggravating circumstances by the prosecution side with death penalty as the only option as regards a charge u/s 302 of IPC, 1860.

For instance, in a 2019 SC judgment of Kushwinder Singh v State of Punjab, death sentence was awarded on the accused purely on the basis of aggravating circumstances since the defence side failed to present mitigating factors to the judges. But the Delhi HC in the case of Bharat Singh v State of NCT took a different and much appreciated turn wherein it not only commuted the death sentence of the accused and but also asked the concerned authorities to conduct a proper investigation into the social and personal background of the accused.

The progressive judgment of Bachan Singh has been diluted and put to the backburner when the SC in the case of Machi Singh v State of Punjab introduced the concept of public opinion to be taken into account while awarding death sentence and also introduced categories of crime which would necessitate death penalty instead of looking at the individual culpability. The dissenting opinion in the case of Bachan Singh by J. Bhagwati explicitly stated that judges should at no time act as the spokesperson for the public. While it is true that public outrage and outcry and political push has a certain weightage to the decision of a case, the court is empowered with the task to decide on a given matter solely on the basis of legal considerations of the case without taking into account extraneous factors like public outcry and outrage. The right of the accused to a fair trial and proper legal representation, unnecessarily torture to the accused are equally important to the court of law as the rights of the victim and there is no guarantee that awarding death sentence to the accused will better protect and deliver justice to the victim.

Moreover, right to life and liberty is so sacrosanct and fundamental in our country and which the constitution also recognises that extinguishing the life of the offender via the legal process must be done in the rarest of rare case after ensuring that the offender has had a proper representation, fair trial and has not exhausted any of the legal recourse available to the him/her.

In conclusion, awarding death sentence might satisfy the general public outcry but death sentence is a futile exercise in an unequal criminal justice system, especially in a country like ours. Reformation and not retribution is the need of the hour. The state must address the vulnerabilities of death row prisoners- their mental, emotional, psychological health by building a proper reformative and rehabilitative infrastructure across the prison system.