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Updated: Dec 12, 2022

Written by: Kanika Wadhawan

Does Capital Punishment Deter Crime?

Death Penalty or Capital Punishment is the highest degree of punishment that can be awarded to an individual under any penal law in force in any part of the world.

Death Penalty also known as Capital Punishment is the State-sanctioned killing of a person as punishment for a crime. Capital punishment is the legal procedure of the state in which it exercises its power to take an individual’s life. It has been in existence since the inception of the state itself. In the British era, there have been countless instances of Indians being hanged after the trial or even before it. After 1947 India became a democratic state and the system of awarding death penalties too changed drastically.

The IPC in accordance with the provisions enshrined in the constitution of India provided for awarding of capital punishment for certain specific offenses.

Article 21 of the Indian constitution, which guarantees every citizen the fundamental right to life, also expressly states “no person shall be deprived of his life or personal liberty except according to procedure established by law, that the state can take away life through the given process of law if it deems fit. Not all offenses are punishable by death instead it is only reserved for the most heinous of crimes.

According to the Indian Penal Code, the offenses punishable by death within the territory of India are as follows section 120B of the IPC, section 121 of the IPC, section 302 of the IPC, and Section 303 of IPC 1860.

The Indian Justice system is based on Deterrent and reformative measures and the inherent principle of innocent until proven guilty.

Deterrence is the objective behind the death penalty.

The Indian Penal Code prescribes ‘death’ as an alternative punishment to which the offenders may be sentenced, for offenses such as Waging war against the Government of India. (S. 121); Abetting mutiny committed (S. 132); Giving or fabricating false evidence upon which an innocent person suffers death. (S. 194); Murder (S. 302); Punishment for murder by life convict (S. 303). This Section was struck down by the Supreme Court in the case of Mithu v. State of Punjab (AIR 1983 SC 473) as being unconstitutional and void; Abetment of suicide of a minor, insane; or intoxicated person. (S. 305); Attempt to murder by a person under sentence of imprisonment for life if the hurt is caused. (S. 307); Punishment for causing death or resulting in a persistent vegetative state of the victim (S. 376A); Punishment for rape on a woman under twelve years of age (S. 376AB); Punishment for gang rape on a woman under twelve years of age (S. 376DB); Punishment for repeat offenders (S. 376E); Dacoity accompanied with murder. (S. 396).

In Bachan Singh v. the State of Punjab (AIR 1980 SC 898), a Constitution Bench of the Supreme Court propounded the dictum of “rarest of rare cases” according to which the death penalty is not to be awarded in the rarest of rare cases when the alternative option is unquestionably foreclosed. This judgment became a benchmark for the courts in India.

In Machhi Singh v. State of Punjab (AIR 1983 SC 957), the Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not.

Criminologists and Socialists have for a long time been demanding the 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 the Death penalty was challenged before the Supreme Court in Jagmohan Singh v. State of UP (AIR 1973 SC 947). 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 Cr.PC and the Indian Evidence Act are not unconstitutional under Art. 21.

In another case of Rajendra Prasad v. State of UP (AIR 1979 SC 916) while addressing the issue of judicial discretion in the award of the death penalty 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.

In the majority of these cases, death was commuted to life imprisonment and some were acquitted by the higher courts. Death has been prescribed as a punishment for murder since 1860 (the year IPC was drafted), but 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.

Awarding the death penalty is an infrequent phenomenon in India.

Nirbhaya judgement

This case is indeed the first and foremost case to be mentioned while talking about retributive justice in India. In this case judgment, the SC sentenced four out of six felons involved in the extremely heinous Delhi rape case to death, much to the delight of the society, as they had committed an extremely gruesome as well as morally unimaginable crime.

Thus, not only do the courts exercise this power to award Capital punishment in extremely rare cases but also many of these death sentences are commuted to life imprisonment on grounds of health pregnancy family conditions, etc. Whenever any court awards a death sentence, it mentions special reasons for giving such punishment relating to the special circumstances of the case,

Is the Death penalty valid in today’s world? It totally depends on the legal experts to decide.

My opinion of this is that it helps to deter crime.

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