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Updated: September 16, 2013 02:44 IST

India’s muddled thinking on punishment

Suhrith Parthasarathy
Comment (54)   ·   print   ·   T  T  

Not only is the death penalty barbaric and immoral and its deterrent effect unproven, it also contradicts the core objectives of the criminal justice system

Advocating for the abolition of the death penalty in the immediate aftermath of the sentencing in the Delhi rape case may appear morally dubious. What rights do people guilty of so heinous a crime lay claim to, and what do they deserve but death, you might be inclined to ask. But when you apply an immoral law to monstrous criminals, it becomes easier to make comparably iniquitous laws for the rest of us. Capital punishment, perfectly legal as it may be under India’s laws, even if only in a prescriptive sense, runs counter to the core objectives of the criminal justice system. Equally, its application in the “rarest of rare cases”— as mandated by the Supreme Court — speaks to a larger, underlying incoherence in India’s penology.

Beccaria’s treatise

Today’s debate over capital punishment has its broad genesis in 1764 when the Italian jurist, Cesare Beccaria, published his treatise, “An Essay on Crimes and Punishments.” In it, Beccaria argued that abolishing the death penalty was crucial to a society’s progress from barbarity to civilised refinement. “Is it not absurd,” he asked, “that the laws, which detect and punish homicide, should, in order to prevent murder, publicly commit murder themselves?”

Beccaria’s thesis was founded on two central arguments. One, that the objectives of punishment were dual: to deter the future commission of crimes, which the death penalty decidedly did not achieve, and to reform the offenders, which the death penalty decidedly cannot achieve. And two, that the state’s right to take the life of a citizen was illusory, and opposed to the social contract from which it derived its sovereignty.

Beccaria’s assertion at the first level, therefore, comes down to whether capital punishment, by a measure above common imprisonment, deters people from committing crime. “Every act of authority of one man over another that does not derive from absolute necessity is tyrannical,” he wrote. “For punishment to be just it must have only that degree of intensity that suffices to deter men from crime.”

After centuries of debate, the answer to Beccaria’s question remains as clear as it did when he published his thesis. There is no empirical evidence evincing the death penalty’s ability to deter crime; if anything, the converse has been shown to be true. In the United States, for instance, death penalty States have far worse homicide rates than abolitionist States. So given that capital punishment does not act as a deterrent, and given that it cannot reform an offender (who will be too dead to be reformed), the only logical argument in its favour is on retributive grounds.

Yet it wasn’t for such objectives that the death penalty was instilled as punishment for some offences (viz. murder and the highest offences against the state) under the Indian Penal Code 1860. In fact, the only reason murder was punishable with death, while rape was punishable with mere imprisonment, was on deterrent grounds. Lord Macaulay, who drafted the code with painstaking precision, wrote in his notes to the statute that “no argument that has been brought to our notice has satisfied us that it would be desirable wholly to dispense with [the death penalty].” But, according to him, while many were of the opinion that gang-robbery and rape were offences that ought to be punishable with death, atrocious as the crimes may be, they cannot be placed on the same class with murder. These offences, he wrote, “are almost always committed under such circumstances that the offender has it in his power to add murder to his guilt.” If the punishment of the crime already committed were the same as the punishment for murder, the offender, said Macaulay, would have no restraining motive. “A law which imprisons for rape and robbery, and hangs for murder,” he wrote, “holds out to ravishers and robbers a strong inducement to spare the lives of those whom they have injured.”

Macaulay’s argument, in spite of its chilling moral nuances, is lucid and logical assuming the death penalty acts as a deterrent. But in the several decades since the Indian Penal Code’s drafting, capital punishment’s deterrent effect remains, at best, unproven. Yet, India continues to retain the punishment. And in doing so, it has muddled a largely rational penology that stood as the basis for its substantive criminal law.

Retaining the death penalty on grounds of retribution alone is flawed at many levels beyond its inherent immorality. In India, while murder is punishable with death, theft is not punishable with a corresponding theft nor is rape punishable with rape. Although retribution does not always envisage an eye for an eye, we see it used as the theoretical basis for the punishment of some offences, while for others the law reverts to deterrence and reformation for justification.

“Rarest of rare” cases

Further widening this penological schism is the Supreme Court’s dictum that the death penalty be applied only in the “rarest of rare cases.” In 1982, a bench of five judges, in Bachan Singh v. State of Punjab, upheld the constitutionality of Section 302 of the IPC, which prescribes the death penalty as punishment for murder. And in so upholding its validity, the court prescribed that the penalty be accorded only in the “rarest of rare cases.” The Court referenced Macaulay, who in drafting the code said capital punishment ought to be sparingly inflicted. But his intentions weren’t to instil in judges discretion in determining which were the “rarest of rare cases.” On the contrary, he was providing a rationale for why the death penalty was restricted only to murder and the highest offences against the state.

Justice Krishna Iyer’s concern, expressed in Ediga Anamma v. State of Andhra Pradesh, that “… it is unfortunate that there are no penological guidelines in the statute for preferring the lesser sentence, it being left to ad-hoc forensic impressionism to decide for life or for death,” went unheeded in Bachan Singh. The “rarest of rare cases” doctrine has, on the other hand, exacerbated the confusion over which cases merit the death sentence. By its fundamental ethos, as Justice P.N. Bhagwati put it in his dissenting opinion, the doctrine is constitutionally flawed. “The question may well be asked,” wrote Bhagwati, “by the accused: Am I to live or die depending upon the way in which the Benches are constituted from time to time? Is that not clearly violative of the fundamental guarantees enshrined in Articles 14 and 21?”

Irrevocability

The strongest, practical argument, however, against capital punishment is its irrevocability. The dangers are most evident from the Supreme Court’s judgment in 2009 in Santosh Kr. Bariar v. State of Maharashtra. Here, a bench comprising Justices S.B. Sinha and Cyriac Joseph ruled that previous judgments of the Court, in which 13 death sentences were validated, were rendered per incuriam, or in other words were rendered in ignorance of the law laid down in Bachan Singh’s case. Out of these 13 convicts, whose sentences were confirmed by a decision that was admittedly incorrect, two have already been hanged. Such episodes are too high a price to pay for a punishment that, all else apart, is ineffectual. What’s more, in a country where an accused’s right to free legal counsel is, at best, a mockery, retaining capital punishment sounds a virtual death knell to the Constitution.

That this debate is still alive in India, however, speaks to an even broader problem: an underlying incoherence in the country’s penology. Hang the murderers and the rapists and we will deter all future crime, seems to be the attitude. “I have raised the demand to award capital punishment to these four convicts,” said the Leader of the Opposition, Sushma Swaraj, after the four men were found guilty in the Delhi case. “If they are awarded the death sentence, it would become a model for the country and effectively curb incidents of rapes.” Such demands for the guillotine shift the focus from far more significant considerations: the maintenance of law and order through better policing, effective, efficient prosecutorial conduct and, most importantly, the need to reform the country’s prisoners. The death penalty is not only barbaric and immoral, it also contradicts the criminal justice system’s core objectives: to reform and rehabilitate offenders while ensuring that the accorded punishment deters others from committing crime.

(The author is an advocate practising in the Madras High Court)

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Main reason for supporting life term against capital punishment is based on the chances of reform. But what are the statistics on this? Does the number of reformed criminals outnumber non reformed ones to a great drgree? If not how is life term helping?

from:  Ann Varkey
Posted on: Sep 18, 2013 at 20:06 IST

Messr G Balasubrahmanyan & Vikram

Both of you invoke the case of Singapore or Sharia laws in places like Saudi Arabia
when clamouring for the death penalty.

The problem is that you conflate co-relation with causality. The low rates of crime
in Singapore are due to a number of factors and to pin it down to just one variable
i.e. capital punishment is specious reasoning. Likewise, the arbitrary nature of
Sharia law where you can get away with murder if you pay blood money or happen
to be a white Westerner is hardly a solution for India. Few Middle East countries
publish stats about crime anyway.

But I would point you to a survey in Journal of Criminal Law & Criminology, Univ of
Colorado-Boulder:

- 87% of criminologists believe that abolishing the death penalty will not affect
murder rates
- 75% believe that debates about the death penalty distract Congress &
...legislatures from focussing on real solution to crime…

These facts apply to India as well.

The report is at: bit.ly/c4TDs

from:  V. Suresh
Posted on: Sep 17, 2013 at 13:03 IST

punishment should be soooo severe that a monster thinks a kazillion
times before even thinking of committing a rape.

from:  anonymous
Posted on: Sep 17, 2013 at 10:47 IST

I find this article to be missing out on few key points

1. The existing law is not a better deterrent than capital punishment. So do we repeal the existing laws too? A large majority of the people who commit crime know that their actions have consequences but do it either way. The key lies in effective execution of the law.

Just an example. Link all vehicles to a bank account and put sensors to check crossing of line. The moment the vehicle crosses the line automatic debit from the bank account. We will have all red signal jumping end in 2 days!!!
I do not see this law being misused by the judiciary and dont see this as being debatable.
2. Prevention is better than cure. Analogically, preventing the society from getting rotten is better than reforming. And that is equal to obviating the need to reform thousands before they get spoilt. If only the perpetrators are given quick justice and there is abundant media coverage (which i am glad there is) this will act as a deterrent.

from:  ravi
Posted on: Sep 17, 2013 at 10:09 IST

This is one of the best articles I have read in months. Took me quite
a while to understand it.
"If they are awarded the death sentence, it would become a model for
the country and effectively curb incidents of rapes" is what BJP
leader said. Well, she is not a Judge and this is no longer just a rape, it's a murder. So she was portraying it wrongly (though perhaps unintentionally). I am sure that the judge gave capital punishment for the murder (through rape) and not just for the rape itself. WIMTS is if she was alive then these 4 would have been serving a long term instead.
I do agree that there is a mob like mentality very clearly indicates
that all rapists must get capital punishment. This is wrong. Then these criminals will no longer stop at rape they will murder too as the Macaulay said.

from:  S Iyer
Posted on: Sep 17, 2013 at 04:48 IST

One presumes that prison is meant to reform and rehabilitate someone, not simply just for vengeance. But the unspeakable crimes of torture, mass murder, gang rape of little children have no chance of reform. In many cases these prisoners commit further crimes while in prison either upon the other inmates or on the outside through bribes and plotting terror attacks. The law does not have to be an eye for an eye, but certainly the punishment in these cases must fit the crime. These thugs may not see the death penalty as a deterrent, but how many politicians would think twice, before looting x lakh crores from Indias poor if it was there for corruption?
The article is light on statistics and facts and heavy on being "civil". In a completely broken system, referring to previous cases in which the law is vague and obfuscates the issue serves no purpose. Ideally, the law of the land should be fixed and would be specific. Where are the statistics on cost, time and overcrowding of prisons?

from:  Nikhil
Posted on: Sep 17, 2013 at 04:34 IST

How about the psychological benefit for the families affected by the heinous crimes. Many of these families experience a sense of closure when they see the perpetrators brought to Justice. Does that mean any thing? I think it does. Just for that reason alone I think Death Penalty as a punnishment should still be alive. The argument of a deterrent is secondary. Closure for the families is primary.

from:  Manoj Chandran
Posted on: Sep 17, 2013 at 02:38 IST

It is time to abolish the death penalty if we are to be a truly humane
and civilized society. There should be a way to reform a criminal and
make him compensate society for his misdeed/s by doing constructive work
and undergoing moral rehabilitation. Of course this sounds platitudinous
but the alternative is a fatalistic view of human nature as being
impervious to reform. The cure is as bad as the disease if one life is
to be taken for another which cannot be restored anyway.

from:  Lionel Fernandes
Posted on: Sep 17, 2013 at 02:23 IST

The article definitely is lucid and has sync in the thought process. I respectfully want to disagree with the author. The author quotes Beccaria whose treatise assumes a social contract as the source of the state's sovereignty. Firstly, A huge mass of people would question that social contract. Secondly, even people who agreed to would definitely not be able to give a foolproof 'solution" to reform the criminals of such inhuman cases. Thirdly, What would then act as a 'deterrent' to such crimes? Capital Crimes deserve capital punishment. I myself being a female realize the constant fear and fight for survival in daily life. Fast track Capital punishment for such crimes can only make such probable criminals, if not reformed, fearful and deter them at least to some degree.

from:  Namrata Choudhury
Posted on: Sep 17, 2013 at 00:21 IST

I think that the jurisprudence behind the punishments proposed may be
correct, but, somewhere, we are missing the correct way in conveying
the gravity of the punishment. When a common man reads in a newspaper
or watches on a television about a person being convicted to, say life
imprisonment, how does he get to know the gravity of the punishment?
The homeless and the poor may even think that, at least, the convicted
has a roof over his head and gets two meals a day. The people may be
portraying themselves as equals or maybe even worse than the ones
behind the bars. You cannot deter criminals by saying that going to
jail or being hanged is a considered to be a taboo. The rationale for
a punishment needs to be conveyed in a more appealing manner.

from:  Swapnil Gupta
Posted on: Sep 16, 2013 at 23:40 IST

A good article which shows the real motto behind the ideals of justice system. Its very true that nobody knows the effect on the society of sanctioning death penalty to the guilty as we see lot of same kind of crimes registering in the police station yearly. So much needed reforms is the mental treatment to the convicted in jails by the team of psychiatrists. This will also ensure in what circumstances or what type of backgrounds of convicted leads to committ such heinous crimes. Our justice system also must ensure the convicted has been given proper punishment for his crime.

from:  Vakkodan
Posted on: Sep 16, 2013 at 22:39 IST

Firstly,the barbarity of the few instances of the death sentence is overshadowed by the monstrosity and almost daily occurrence of murder terrorism rape etc,2.the damage caused by the blatent violence on innocent civilians to the social fabric as compared to that meted to monsters in the form of humans is like comparing the destructive effect of a nuclear explosion to that of an arrow 3.the author like many of his creed lecture from a position of safety and security which the present system fails to provide to its other less fortunate members 4.no system on earth can provide perfect justice and the death sentence is the only weapon however weak to offer against predators who have no respect for life

from:  Dr N M Sudhir
Posted on: Sep 16, 2013 at 20:07 IST

The author is right. Death penalty may not be an effective deterrent
for preventing crimes of rape in our male dominated society. But if it
is still on statute books and if courts would continue awarding it, we
must review our law of pardon by the President of India.
But one question that agitates me is this: Why should the society bear
the cost of keeping alive a murderer or a rapist for a long duration,
which at times may be some thirty-forty years assuming that the
criminal is sentenced to life imprisonment till he is alive?
Incidentally, to deal with crimes against women in a pro-active way,
we must make every effort to change the mindset of common people about
the step motherly treatment meted out to the girl child, which I
suppose is the beginning of discrimination against the women in
general.

from:  Narendra M Apte
Posted on: Sep 16, 2013 at 19:45 IST

I have to admit, I was feeling quite happy when I heard that the
convicts of the gang rape case were being sentenced to death but this
has shown the whole situation in a new light.

from:  Ed
Posted on: Sep 16, 2013 at 19:18 IST

Dear Mr. Parthasarathy,
Kudos on a very well written article on the much debated subject of
capital punishment. What you’ve said is true that this debate is a really old one. While the opponents of the punishment have a strong
case, it is not without reason that the punishment and its supporters
exist. While reading the numerous comments below is a bit tedious, it
is with great humility that I offer my 2cents on the points you have
missed, deliberately or otherwise, so that others who think like you
might learn a thing or two.

While what you said is true, that immoral actions do not demand an
‘immoral’ punishment, the premise here is that capital punishment is
immoral. Let me remind you and your readers that the design of every
punishment is crime deterrence. The tougher the punishment, the more
effective it is. Hence, the aspect of morality here is to view a
punishment not through the glasses of suffering rather through the
glasses of its effectiveness.

from:  Ananta Poolla
Posted on: Sep 16, 2013 at 17:11 IST

Without running away from the broader debate about the death sentence,we need to keep that practical problem in mind. Agreed ,the verdict for the rapists is not an occasion to rejoice because, it will not act as a deterrent.So some of the sympathisers suggest : to make India safe for women - and for men - we must tackle deep-rooted social problems.They argue that the men who targeted the woman and her friend that night had more or less the same profile: uneducated, unskilled, lived in sub-human conditions, and with no hope whatsoever of a secure future. Unless these critical issues are tackled decisively, violence, not just sexual, will only grow in the coming years.
Of late it is no more just the 'low socio-economic' condition of a rapist or an acid attacker.They do it out of sheer cussedness. There is a spurt of rapes on infants either out of enemity or lust even by the fathers!Will such people listen to any type of 'Holy Talk' of reformation?
Hence, death penalty is the only way to ensure that criminals do not escape back into society or commit further crimes while in prison. Human life is sacred; there must be a deterrent mechanism in place that ensures that those violating that fundamental precept are punished. Capital punishment symbolizes the value and importance placed upon the maintenance of the sanctity of human life. Any lesser sentence would fail in this duty.

from:  K.S.Jayatheertha
Posted on: Sep 16, 2013 at 16:16 IST

Messr G Balasubrahmanyan & Vikram:
Both of you invoke the case of Singapore or Sharia laws in places like Saudi Arabia when clamouring for the death penalty.
The problem is that you conflate co-relation with causality. The low rates of crime in Singapore are due to a number of factors and to pin it down to just one variable i.e. capital punishment is specious reasoning. Likewise, the arbitrary nature of Sharia law where you can get away with murder if you pay blood money or happen to be a white Westerner is hardly a solution for India. Few Middle East countries publish stats about crime anyway.
But I would point you to a survey in Journal of Criminal Law & Criminology, Univ of Colorado-Boulder:
- 87% of criminologists believe that abolishing the death penalty will not affect murder rates
- 75% believe that debates about the death penalty distract Congress &
...legislatures from focussing on real solution to crime…
These facts apply to India as well.
The report is at: bit.ly/c4TDs

from:  V. Suresh
Posted on: Sep 16, 2013 at 16:06 IST

I understand that author tries to highlight the fact that it won't anchor-down the statistics of such crimes but eventually lead to documented loop-holes in Indian judiciary system. That's one opinion. But sometimes it not about the past or future, it is simply about present. And not about how it will effect other crimes but how it will bring, if not justice than balance to Nirbhaya's case. It may be inappropriate to compare the below cases with it but I have been with people who had terminal diseases, and year on year they live in pain. However they accept it and it becomes bearable, yet knowing it all along, the fear they experience in their last moments surpasses the pain of all those years. Being mute and deaf is suffocated but eventually it becomes lifestyle similar to lifetime in jail. And 4 hanged for 1 victim is not 'an eye for an eye' but 'music of justice'

from:  Ravi Sidhu
Posted on: Sep 16, 2013 at 16:03 IST

Excellent article by the author.
Capital punishment cannot be a deterrent to any crime however distant it is from the morals of a society, conversely it can also be seen as a state accepting its incapability of rehabilitating its own citizens.
The barbaric argument that it is a deterrent falls flat in the face of overwhelming evidance to its contrary.
Quoting historical texts as an argument also holds no good as the morals of Society have evolved since.
It is time for the government to accept that even the “Rarest of the Rare” criminals need to be rehablitated and terminating its own citizens cannot be an answer to the problem but good policing and rehablitation can be.

from:  Shantanu
Posted on: Sep 16, 2013 at 15:52 IST

My question to the author is this: What would deter criminals from not
murdering after robbery if there is just a difference of few extra
years in jail ? This is assuming that capital punishment gets
abolished then criminals would go to the extreme of murdering the
victim without any extra thought as they would not want to leave the
victim alive who is the prime witness?
Its very easy to question capital punishment but very hard to provide an alternative. I don't see anywhere in article any alternative
suggestions. You can't just ask for removal of something without
providing an alternative.
The evidence pointed that in US states which don't have capital
punishment are better off "could be" because states where crime rates
was high had to put capital punishment in place. There could be
reasons with worse economic disparities as compared to others.
Also how can we make the assumption that life imprisonment is better
than capital punishment which itself is debatable.

from:  Akshay
Posted on: Sep 16, 2013 at 15:44 IST

It is not the time to hail the verdict of "Death Penalty". It is the
time to introspect our governance in our executive and judiciary. Our
parliament has never failed inn bringing good laws to our citizen to
protect their own rights.It is the failure of the governance and
judiciary which enabled the convicted persons to act in a barbaric and
heinous crime. Compulsory education upto aged 14 alongwith good food
to our children if implemented in an effective manner,these guys
would have formed into good citizens rather than declaring them as non
reformative. In our country and in our judiciary The term "rarest of
rare cases" is synonyms to "poorest of poor" as our judiciary could
ever fit other groups into the term. Our judiciary always depend upon
corrupt policing force to nab the criminals. It transferred its
responsibility onto to the police and the public prosecution to avert
the criminality in our society. Very often the apex judiciary often
repents that the judiciary in India is accountable on its own to our
citizen. Unless a legislation is enacted it would be an Utopian
thought in our judiciary. The judiciary in recent times encouraged PIL
to clean the system in our country. But at the same time in order to
ensure accountability to our system it should initiate suo moto
contempt proceedings without waiting for a litigant. All executives
in the State/UT are to be made accountable to the people of India as
the rights of the people are often violated to satisfy their political
masters by wrong interpretation of our Constitution and making wrong
policies deliberately. In financial business the auditors role is
watch dog. In s similar manner the judiciary should function as a
Closed circuit camera placed at public places to stop the wrong
polices being adopted against our constitution provisions. The
judiciary should reflect the people's faith in its functioning rather
than adopting technical excuses. Such technical excuses are the root
causes for these heinous crimes in our country. It is the need of the
hour in our country.

from:  P.Annadurai
Posted on: Sep 16, 2013 at 15:39 IST

Completely in agreement with the views expressed. When the state
legislates to punish murder with murder there is no end to the cycle of
violence/ The death penalty is at best a balm for the wounded and for a
society reacting in anger. What is required is a solution to societal
ills that make rape shockingly commom.

from:  nsg
Posted on: Sep 16, 2013 at 15:03 IST

I agree with Vikram. While the author is absolutely right that the
death penalty is a mere fig-leaf to cover the state's own failures,
one must see its presence as a deterrent in a time when our justice
and law enforcement systems are basically a joke. Crimes are committed
with the certain knowledge that there will be no retribution. Indeed,
many murder accused are sitting in our Parliament and in both major national
parties of our country.

While a dysfunctional justice and law enforcement can also not
guarantee that criminals involved in such a case will actually be
caught and punished or that the right people will be caught, we are
not yet far even on the path to abolishing the death penalty.

One must take one step after the other and try to do it well before
moving further. Making bold ideological moves will not change the
ground reality. We remain among the proverbial crows that must face
shame in the assembly of swans that democratic states are supposed to
form.

from:  Vivek
Posted on: Sep 16, 2013 at 15:02 IST

Very well written article.
There is a hierarchy in the judicial system. District courts, high courts and the supreme court.If the district court sentences someone to death as a punishment, the guilty can appeal in high court, and if the HC rejets the appeal,then the guilt approaches the SC. He can further plead with The President. Then what is the use of the district courts....? Why is the hierarchy provided then.....? By the time this whole process is carrying the guilt dies naturally due to old age. The decisions taken in such cases by the local/ fast track courts must be final and must be refrained from any further change.

from:  Ashutosh Dalal
Posted on: Sep 16, 2013 at 15:01 IST

> Hang the murderers and the rapists and we will deter all future > crime, seems to be the attitude.

Why don't you comment on our broken system of life imprisonment and parole? People won't be baying for blood if life term actually meant life term. When convicted, jailed felons roam freely with the support of the police, what do you expect the common man to feel?

Fix that first before you talk about the death penalty.

from:  Mahe
Posted on: Sep 16, 2013 at 14:52 IST

Good, timely article. I hope some of the commenters would respond
to the points made in the article rather than simply asserting
their disagreement.

from:  Raamganesh
Posted on: Sep 16, 2013 at 14:48 IST

The death sentence is barbaric whether by hanging, electrocution or fatal injection or any
other state sponsored means. Respect for human rights negates its very existence on the
statute books. Most civilized countries are abandoning its use for all the reasons alluded to in
the article. It is not a deterrent and does not allow for review. More importantly, justice meted
on streets reduces a great democracy to a banana republic. No to the death penalty.
Succumbing to mass hysteria as seen on the streets of Dehli is not acceptable.

from:  Viren RAMBIRITCH
Posted on: Sep 16, 2013 at 14:41 IST

Justice to the victim and a coherent message to the society whose
collective consciousness has suffered due to the crime are two
important parts of any judgement.The author, it seems is concerned
about reform of the perpetrators of the heinous crime in this case and
the deterrent effect of capital punishemnt only. What reform is
expected of men who not only raped this girl but brutalised her
so that her intestines were shoved out of her body with
iron rods.The rape was so brutal that nobody will dare to write about
such things . Even animals kill prey before dissecting them to eat.
Can such animals in guise of humans be ever reformed. As a woman , i
feel saddened for the fate of women who are born and those who shall
be born and for those who will never be allowed to born in such a
society as ours. Why protect criminals when one cannot protect the
women from crime. Do away with capital punishment only when we create
a society where men do not turn into beasts.

from:  Mansi
Posted on: Sep 16, 2013 at 14:33 IST

i am not convinced with author's argument that death penalty
can't play a deterrent.i think it is not playing deterrent role
because of our inefficient criminal justice system which takes
years to give justice.it is true that as a civilised nation we
should not eager to award death penalty but when gruesome murder
like delhi crime then state has every right to take the life of
criminals as a repersentative of people, state need to ensure
that such inhumane person does not roam again on earth.throughout
the human civilisation we find the combination of bad and good
people.it is true that some of the person are bad because of
their circumstances but some of them are beast from whom you
can't expect reform.how can one be sure that death penalty is not
a justice.if we see carefully by awarding death sentence to such
criminals as in delhi case state is providing justice to criminal
also by way of freeing him/them of inhumane life.one should also
think about the pain experienced by victim.

from:  MANOJ KUMAR
Posted on: Sep 16, 2013 at 14:22 IST

I respectfully disagree with the author.
"The death penalty is not only barbaric and immoral, it also
contradicts the criminal justice system’s core objectives: to reform and rehabilitate offenders while ensuring that the accorded punishment
deters others from committing crime."
And the brutal gangrapes that result in death are not brutal and inhuman? Today's local newspaper has a front page report of a 4-year old girl child raped by a cleaner in a school bus. Does these perpetrators deserve any mercy? They break, loot, plunder bodies and spirits of others; yet the author thinks they deserve rehabilitation?
The core objective of criminal justice system cannot be to merely rehabilitate criminals, nor merely to accord punishment to deter others. The core objective has to be to mete out rightful punishment to criminals, and give justice to victim. Else, the word 'justice' loses its meaning.

from:  Anurag
Posted on: Sep 16, 2013 at 14:03 IST

I hope the author sees the contradiction of firstly, the media position against hanging, and second, the 'hyper' reporting that followed the gang rape, (and the baying for the blood and the 'instant' justice that was meted out ) thanks to feminist/ anti-male bias.
What else could the 'hyper' reporting of rape do, but to pressurise the judiciary into more severe ( and cruel ) punishment? The media needs to introspect.

from:  Parthasarthy
Posted on: Sep 16, 2013 at 13:39 IST

Regardless of what the author has argued, capital punishment for heinous crimes must be retained by India. It is not barbaric. It's an essential feature of jurisprudence. Capital punishment should never be abolished. Never ever. There are numerous reasons for the retention of death penalty in India. Even the Central Government should seriously consider rescinding the power of the President of India to commute death penalties. No more petitions for mercy or clemency. Once the Supreme Court confirms a death sentence, the convict goes to the gallows. No one on earth should be able to challenge that order.

from:  J.Vensuslaus.
Posted on: Sep 16, 2013 at 12:31 IST

My compliments to the author for such a lucid and educative article. I understand two reasons for the public anger that bays for capital punishment. One, the failure of the legal system, as rightly brought out by the author, which fails to prevent such incidents by aggressive presence and which doesn't act for swift justice unless there's media glare. Second, the perception of people that jail sentence is not a punishment for most of the criminals as they find food thrice a day and conditions not too different from those in which they come from. In both cases, we can see the failure of the society collectively and that of state rather than anything else. The state has no right to hang people for its own failures!

from:  Sandy
Posted on: Sep 16, 2013 at 12:13 IST

A recent news report about the rape committed around Mumbai highlighted the fact that the perpetrators had committed similar crimes in the recent past. It was also revealed in the newspapers that in Delhi murder/rape case, one of the men had said to the others during the act that nothing would happen to them. It is clear that such people believe that they would get away with it.
Singapore, which went through much turmoil, including racial riots and kidnappings, during her early years, has used punishment as a deterrent; and is today one of the safest cities in the world.
To suggest that swift and harsh punishment is not a deterrent in my opinion is sheer ignorance.
There is a time and place for everything. When there is debate in Singapore and the west about death penalty it is perhaps the right time for them. For India, the focus ought to be on delivering a message that the populace and its representative government will not tolerate crimes against women.

from:  Vikram
Posted on: Sep 16, 2013 at 12:00 IST

It is a genuine request from a citizen of this country that please do
not bring thesis and hypothesis in a situation as grave as this one
which would occur and reoccur without fail. I write this comment to
your article with all due respect to your experience ad facts put
together, but I am petrified. I stand for the victim’s agony and my
perpetual fear. With all due respect to your article, I would like to share my inputs on the same.
1. BECCARIA’S TREATISE: I agree with this ideology which if put in a more famous way would be “An eye for an eye will leave everyone blind.” I am more interested in the “intensity of the punishment”. It is not about instilling fear in the minds and heart of the people but the aftermath of the consequences of the hideous action. 2. In order to take into account the consequences the following factors need to be taken into account. (a) Drugs/Alcohol/any kind of dope- History also counts that how frequently and in what quantity the abusive substance is consumed by the offender. (b) The societal framework or background to which the offender belongs. c)The planning of the crime- (was it impulsive or premeditated)(d)Moral values of the youth (Men of India taken in large)
note: Many men derive pleasure In pinching or being physically abusive to women in a crowd. Taking into factor today’s scenario in places like Malls, cinema halls, supermarkets, parking and the list goes on. 3. A point which I strongly disagree with is the comparison of an Indian citizen with that to an American citizen with respect to the crime.
India is a male dominated country and I am not meaning philosophically but according to the human sex ratio; India has males more than females.
4. If a soul wrecking crime like rape is to be treated In a mild way then let’s not even think about cases of eve-teasing.
You being in the system of Justice decide upon the intensity of the punishment.

from:  Nivedita Mitra
Posted on: Sep 16, 2013 at 11:12 IST

Well judged article. We don't have any rights to take other lives.
Death penalty has not given any desired results as far as crimes in
India is concerned. We need to address the problems, that induce the
people to indulge in such crimes. If a child has not been given proper
food, proper education and proper guidance, what would do we except
that child to become, an IAS officer. Of course it is duty of the
parents to provide it but our society too has some responsibilities.
If we address these problems that are deep rooted in this society,
there is no need for an argument of death penalty.

from:  Naveen Prasad A
Posted on: Sep 16, 2013 at 10:50 IST

The objective of punishment I believe, is prevent crimes from occurring
and the convict should not repeat the offence. If mere effective
counselling satisfies the requirements then I believe we have reached
Utopia. But today we can see capital punishment too is not giving
results. The question needs to be asked what action should be taken so
that the above requirements are met, and when we find one then we can
say Utopia is truly achieved!!!

from:  Srivardhan V
Posted on: Sep 16, 2013 at 10:14 IST

Capital punishment is often defended on the grounds that society has a moral obligation to protect the safety and welfare of its citizens. Murderers threaten this safety and welfare. Only by putting murderers to death can society ensure that convicted killers do not kill again.
Those favouring capital punishment contend that society should support those practices that will bring about the greatest balance of good over evil, and capital punishment is one such practice. Capital punishment benefits society because it may deter violent crime.
While it is difficult to produce direct evidence to support this claim since, by definition, those who are deterred by the death penalty do not commit murders, common sense tells us that if people know that they will die if they perform a certain act, they will be unwilling to perform that act.
Defenders of capital punishment argue that justice demands that those convicted of heinous crimes of murder be sentenced to death. Justice is essentially a matter of ensuring that everyone is treated equally.
It is unjust when a criminal deliberately and wrongly inflicts greater losses on others than he or she has to bear. If the losses society imposes on criminals are less than those the criminals imposed on their innocent victims, society would be favouring criminals, allowing them to get away with bearing fewer costs than their victims had to bear. Justice requires that society impose on criminals losses equal to those they imposed on innocent persons. By inflicting death on those who deliberately inflict death on others, the death penalty ensures justice for all.
The case against capital punishment is often made on the basis that society has a moral obligation to protect human life, not take it. The taking of human life is permissible only if it is a necessary condition to achieving the greatest balance of good over evil for everyone involved. Given the value society place on life and our obligation to minimize suffering and pain whenever possible, if a less severe alternative to the death penalty exists which would accomplish the same goal, we are duty-bound to reject the death penalty in favour of the less severe alternative.
There is no evidence to support the claim that the death penalty is a more effective deterrent of violent crime than, say, life imprisonment.
In fact, statistical studies that have compared the murder rates of jurisdictions with and without the death penalty have shown that the rate of murder is not related to whether the death penalty is in force.
The death penalty harms society by cheapening the value of life. Allowing states like India to inflict death on certain of it citizens legitimises the taking of life.
The death of anyone, even a convicted killer, diminishes us all. Society has a duty to end this practice which causes harm, yet produces little in the way of benefits.

from:  kurt waschnig
Posted on: Sep 16, 2013 at 09:26 IST

I appreciate the writer for successfully presenting a case against
capital punishment but one has to see as to why capital punishment
become inevitable at certain point in time and in certain cases.Recent
case of Nirbhya is a case in point whereby Indian judicial system has
tried to give a clear massage to people in general and potential
criminals in particular that how effective it could be when it is
supported by a thorough police investigation and appropriate public
opinion.In fact for any law to prove its appropriateness it is not
that we look back in the pages of history as to what Macaulay had said
about it as it only proves our slave mindset and does not reflect the
fact that we can take an appropriate legal decision on our own,on the
merit of the case. For A law to be effective and pertinent,it has to
gauge and respect the public opinion,of course when it is not based on
biasses and in no case should be put in a straitjacket and looked
through the window of past.

from:  vinayak singh
Posted on: Sep 16, 2013 at 09:17 IST

Judiciary has one more objective other than above mentioned 'deterrant to crimes' and 'reform to convict'. In a society which feel injustice will be more inclined to take law in its own hand. Consider, for example, for murder if death penalty is abolished, revenge killing will definitely increase.

from:  vivek tyagi
Posted on: Sep 16, 2013 at 09:13 IST

The author asserts that the death penalty is morally wrong and he wants everybody to accept it as a fact. He is sure that the debate on the death penalty started only in 1764 with Beccaria and uses Macaulay of all people to support his position. It may come as a rude shock to him, but India is not based on the culture or moral values of the west in any case. Nor should it be. As far back as the Ramayana and the Mahabharata, even God has taken human births with the primary aim of administering the death penalty to the wicked. It is outrageous to impose self righteous, half baked ideas without understanding the fundamental culture or ethos of the people. But this is what happens when we live on borrowed thinking from the west instead of exercising our own.

from:  Viswanath
Posted on: Sep 16, 2013 at 09:07 IST

I completely disagree with author .writing here with some western
jurist quotes doen't make any sense ....if death is not deterrent
then author should suggest some other punishments .what will be the
agony of parents of the little girl ,what wrong doing does that girl
did i would like to ask removing intestine and inflicting girls womb
with rods is not a barbaric act ?...in world women is an goddess with
out she none of us would be there on this planet...i would like to
let author know that death penality is the coreect sentence given by
court.simply dont mislead the judgement aftreall ur also a judge
repect the judgement given .......

from:  praveen
Posted on: Sep 16, 2013 at 08:30 IST

The death penalty will definitely be a deterrent, especially if it is well publicized. It is also used only in the rarest of the rare cases. How does shoving a rusted metal pipe up a woman and pulling out her intestines not constitute such a case? It is very difficult for someone who has not been harassed on the streets to realize how tough the situation is for women, and men even, especially at night. It is also very easy to speak of forgiveness and rehabilitation, even in the case of such obvious brutality, when it has not impacted your own loved ones. Also, do we have any proof that sex offenders can be rehabilitated? It is true though that the onus is on the judiciary to make sure that innocents are not subject to capital punishment, but in this day and age of DNA evidence it is much easier to place the culprits at the scene of these crimes.

from:  vijaya
Posted on: Sep 16, 2013 at 07:57 IST

There seems to be no remorse for the utter pain and trauma and rights of the victims of rape or the deep impact of such gruesome incident on their lives.
Rape as a crime has much deeper impact on life of a girl and her family.
1> She is torn mentally and loses all the trust on society especially the male section.
2>Her confidence in herself is shaken and fails to take any future decision on her own or is deterred to do so by family/society in fear of its repetition or comments from society.Only exceptional cases where the girl belongs from a well to do family or has strong family support are able to take new steps ahead.So the very right to a dignified life is brutally taken by the convict.
3>Our society never fails to find mistakes with girls and her family, blaming it on upbringing, the chauvinistic comment of Advocate A.P.Singh is best eg.Hence the rights of family members stand enfringed.
Capital punishment for rape should be implemented with recourse to appeal in higher court.

from:  aadesh
Posted on: Sep 16, 2013 at 07:46 IST

While deterrence & reform are lofty objectives, they remain as unproven as effectiveness of death penalty. Conviction & sentence have also the overriding object of punishment. Otherwise, society at large will have an excuse to take to extra-legal ways to punish criminals, such as lynching. Moreover, effectiveness of death penalty is well proven in the mandatory sentencing in states like Singapore. We can't also overlook effectiveness of Sharia in the Middle East to prevent crime.
Overemphasis of reform of the criminal, certainly desirable, will dilute the predominant object of punishment.

from:  G Balasubrahmanyan
Posted on: Sep 16, 2013 at 07:39 IST

It is doubtful if any criminal, contemplating a theft, rape, murder or any other crime, ever gives a thought to the potential punishment he might receive if caught. A criminal who is worried about getting caught and punished will not be able to carry out the crime in most cases. If this sounds plausible, then it is certainly flawed to think that punishments can ever act as "detterence" to criminals. I am surprised that even senior lawyers and jurists continually bring in the concept of "deterrance" when debating death penalty. How stupid is it to expect that a man who has just committed a terrible act of rape will think rationally at that wretched moment to spare his victim so that he may escape the gallows!
As regards the vagueness associated with "rarest of rare category", it is something that has to be worked out on a case-to-case basis. Surely we can expect our judiciary to be capable enought of doing this. Such a criterion can not be laid down clear-cut once and for all.

from:  A Ramakrishnan
Posted on: Sep 16, 2013 at 07:03 IST

You know what you and many others fail to acknowledge in your
impassioned pleas for reformation of prisoners and abolition of the
death penalty? Some people are evil and beyond redemption. Period. Just
look up stats and accounts of repeat offenders, particularly in cases
of rape and murder. Why should the taxpayers support
institutionalisation of psychopathic monsters who show no remorse and
almost certainly have no hope of reforming, PARTICULARLY WHEN THERE IS
ZERO DOUBT ABOUT THEIR GUILT like in the case of the Delhi rapists or
Ajmal Kasab. Please give me a precise answer to this question.

from:  Arjun
Posted on: Sep 16, 2013 at 06:56 IST

One who has no concern for other's lives and indulges in violent
crime does not deserve anything including one's life. Their
elimination is a necessary duty of government and is far from
barbaric. Society owes however, a due process and a conviction
beyond reasonable doubt in a fair trial for itself and not for the
perpetrator.

from:  V. Ramaswami
Posted on: Sep 16, 2013 at 06:32 IST

I am in absolute agreement with your views. I really wish the educated
class which has a lynch mob mentality sees through the logic and also
that crimes also result from the socio-economic and socio-political
conditions.

from:  Harpreet Chugh
Posted on: Sep 16, 2013 at 05:41 IST

An editorial in this paper demanded, "sentence all four convicts in the
case to an actual lifetime in prison". If "actual lifetime" means until
death, then imprisonment does not meet the criteria of "reforming the
criminal" (since there will never be a "pardon"), nor be less
"retributive"(the convict will be punished all his life, each and every day), nor be "more humane" (the convict can have no "hope" & may well suffer torture/injury in prison).
What is needed urgently are (1) unbelievably brutal murders (of any sex) must stop (2) murdering of girls/women after rape/gang-rape must end (3) every girl/woman in India must be treated like a human being, not as a sex object or a slave or worse.
It will be grossly unjust to the victims and a retrograde step in society, even if it is for banning capital punishment, if murderers are guaranteed their own lives after killing someone however brutally, and rapists can escape with a light sentence and that too after a very long trial process.

from:  D Mahapatra
Posted on: Sep 16, 2013 at 05:12 IST

I respectfully differ from the author on capital punishment. Capital
punishment does create a fear among wrong doers in the society. Our
traditional dharma sastras, on which the Indian constitution is based
( rather indirectly ) advocate strong punishments for nefarious wrong
doers.
For example, in arab countries, punishment for stealing is very severe, or in the USA, traffic policing is done very thoroughly and its effects are definitively perceived. Without severe punishments, it is impossible to instill good behavior
among citizens at large.

from:  Sundara Pasupathi
Posted on: Sep 16, 2013 at 04:32 IST

Historical arguements are not a guide to the present. The dynamics of the society changes the interpretation of the laws. What is normal in 1764 is not normal today. In India, with so many people living in poverty can easily commit rape and murder as a pathway to free and better boarding and lodging, unless there is a death penalty. In fact, the death penalty should be swift and regular until the society comes to understand that a crime is punishable with death and it is swift. The death sentence is neither barbaric nor immoral. On the contrary, it is moral and humane to the family that lost.

from:  KVRao
Posted on: Sep 16, 2013 at 03:47 IST

One of the points raised is key: What is the aim of the legal system anywhere in the world? Some might say, as Mr. Parthasarathy has pointed out, the aim is to rehabilitate prisoners, and put them on the right path. Other might say that the aim is to mete out punishment, perhaps both arguments have strength, depending on the crime and depending on the individual. If the prime reason of the legal system is to rehabilitate criminals, then all punishment, should be removed, and criminals should be put in homes which are more like schools rather than prisons.
There is also a matter of the victims involved in any crime, whether it be a victim of simple pickpocketing or a murder victim. I remember when I was pickpocketed, the sense of loss that I felt demanded some amount of retribution from the heartless thief. Just imagine the family of the poor girl who was raped and killed, do they and victim not deserve some retribution? We do not live in an ideal world, unfortunately.

from:  Kumar
Posted on: Sep 16, 2013 at 03:36 IST

i agree with the author over many points but the author should have thrown
some light on the law of arab land also so we can get better picture that
whether punishment have any role in curbing crime? Indian picture regarding
punishment is different because of long trial periods & many criminals are not convicted & set free, as our supreme court also mentioned recently that 90% convictions in rape case are set free !

from:  gurpreet sk
Posted on: Sep 16, 2013 at 03:28 IST
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