Mains Articles

Does Death Penalty deter crime? [Mains Article]

Death or capital punishment is the highest penalty awardable to an accused and is given in the rarest of the rare cases.
By IT's Mains Articles Team
February 18, 2020

Contents:

  • Introduction
  • What is capital punishment?
  • Provisions for death penalty in the law
  • Arguments in favour of Capital punishment
  • Arguments against Capital punishment
  • Offences punishable by death in India
  • The Objective behind death penalty
  • Global scenario of capital punishment
  • Legality of death penalty
  • Does Death Penalty deter crime?
  • Conclusion

Does Death Penalty deter crime?

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Introduction:

The Delhi court has ruled that further delay in the execution of the Nirbhaya case convicts would be sacrilegious (grave sin) to the rights of the victim and for justice and has fixed 6am on March 3 as the fresh date for their hanging. This has raised the debate that is death penalty really culpable to deter crime.

What is capital punishment?

  • Death or capital punishment is the highest penalty awardable to an accused.
  • Courts have been granted a great deal of discretion in the award of the death penalty and it is awarded only in extremely severe cases where murders have been committed in cold-blooded, pre-planned or barbaric fashion.
  • This discretion is not unbridled and has to be exercised judiciously in accordance with well recognized judicial principles keeping in view the aggravating or mitigating circumstances of any particular case.

Provisions for death penalty in the law:

  • Sections 366 to 371 of the Criminal Procedure Code (CrPC) lay down rules for submission of death sentences for confirmation.
  • Section 368 of the CrPC gives the power of confirmation of death sentence to the High Courts.
  • Prior to the Criminal Procedure (Amendment) Act of 1955, in our country, the death penalty was the rule and life imprisonment an exception in capital offences as per the provisions of the old CrPC (1898).
  • Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences.
  • After the Criminal Procedure (Amendment) Act of 1955, courts are at liberty to grant either death or life imprisonment.
  • Now as per Section 354 (3) of the CrPC, 1973 the situation has been reversed and a life sentence is the rule and death penalty an exception in capital offences.
  • Further, the courts are required to state reasons in writing for awarding the maximum penalty.

Arguments in favour of Capital punishment:

  • A guilty must be punished proportionate to the severity of the crime.
  • Giving a killer the death sentence will stop others doing such serious crime.
  • The very small chance of executing the wrong person is balanced by the benefits to society of putting off other murderers.
  • Death sentence in India should be there in the statute books to contain terrorism.
  • Capital punishment is an act of justice and not an act of vengeance.
  • As per Japanese, the death penalty reinforces the belief that bad things happen to those who deserve it.
  • This reinforces the contrary belief that good things will happen to those who are good.

Arguments against Capital punishment:

  • Everyone has a right to live, even those who commit murder, sentencing a person to death and executing them violates that right.
  • Innocent people might get killed because of mistakes or flaws in the justice system.
  • Every State has the sovereign right to determine its own legal system and appropriate legal penalties.
  • Some capital crimes are committed in such an emotional state that the perpetrator did not think about the possible consequences.
  • Capital punishment is vengeance rather than retribution and is a morally dubious concept.
  • Death sentence has not served as a deterrent to control crime.
  • Death sentence violates international human rights laws.
  • Many executions are botched and thus produce excessive and unjustified pain and torture.
  • Most nations have banned capital punishment, and those nations that still employ it are often very authoritarian and brutal nations.

Offences punishable by death in India:

According to the Indian Penal Code along with other acts eleven, offences committed within the territory of India are punishable by death:

Section under IPC or any other Act Offense  
120B Being a party to a criminal conspiracy to commit a capital offence
121 Waging, or attempting to wage war, abetting waging of war, against the Government of India
132 Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny
194 Giving or fabricating false evidence with intent to procure a conviction of a capital offence
302, 303 Murder
305                  Abetting the suicide of a minor
     364A Kidnapping, in the course of which the victim was held for ransom or other coercive purposes
     376A, Criminal law amendment act, 2013 Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender
     396 Banditry with murder – in cases where a group of five or more individuals commit banditry and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.
Part II, Section 4 of Prevention of Sati Act Aiding or abetting an act of Sati
31A of the Narcotic Drugs and Psychotropic Substances Act Drug trafficking in cases of repeat offences

The Objective behind death penalty:

  • Deterrence is the objective behind the death penalty.
  • In Bachan Singh v. the State of Punjab, a Constitution Bench of the Supreme Court propounded the dictum of “rarest of rare cases” according to which death penalty is not to be awarded except in the rarest of rare cases when the alternative option is unquestionably foreclosed.

Global scenario of capital punishment:

  • Death has been abolished as a form of punishment in most of the developed countries.
  • Despite a global moratorium against death penalty (United Nations General Assembly Resolution A/RES/62/149 dated 18 December 2007), India retains the same as it is believed that allowing criminals guilty of having committed intentional, cold-blooded, deliberate and brutal murders to escape with a lesser punishment will deprive the law of its effectiveness and result in travesty of justice.

Legality of death penalty:

  • Criminologists and Socialists have for long been demanding abolition of the death penalty in our country.
  • The morality of the death penalty is especially debatable not only because of moral or religious considerations but also because death is purportedly out of the purview of a social contract.
  • A proposal for the scrapping of the death penalty was rejected by the Law Commission in its 34th report.
  • The constitutionality of Death penalty was challenged before the Supreme Court in Jagmohan Singh v. State of UP.
  • Dismissing the appeal, the Supreme Court held that according to Art 21, deprivation of life is constitutionally permissible if that is done according to procedure established by law.
  • Thus the death sentence imposed after a trial in accordance with legally established procedures under CrPC and the Indian Evidence Act is not unconstitutional under Article 21.
  • In another case of Rajendra Prasad v. State of UP, the Court held that, if the murderous operation of a die-hard criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.
  • Thus there is a need to read Sections 302 of the IPC and Section 354(3) in the humane light of Part III and Part IV further illuminated by the Preamble of the Constitution.

Does Death Penalty deter crime?

  • Death has been prescribed as a punishment for murder since 1860 (the year IPC was drafted), still, murders continue unabated.
  • Death has been prescribed in rape cases since 2013 (376A), still, rapes continue to happen and in fact, the brutality of rapes has increased manifold.
  • This compels one to think if the death penalty is an effective deterrent to crime.

Conclusion:

  • The highly technical and formal legal system of ours suffers from gaping lacunae which convicts use to their advantage. We need to expedite investigations at the hands of a well trained and equipped police system ably supported by fast track trials to reinforce the faith of the public in our legal system. Hence, it is not the severity, but the unquestionable certainty of punishment, that can act as a deterrent to control crime.
[Ref: Times of India]
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