Death penalty no deterrence

Vishavjeet Chaudhary 

Assistant Professor, OP Jindal Global University, Sonipat

The Cabinet has cleared an ordinance to allow for capital punishment in case of rape of minors. An ordinance is a law that is passed when the Parliament is not in session. It is an executive order that receives the President's assent without discussion in Parliament. The ordinance is widely seen as a reaction to the horrifying rape cases in Kathua, Surat and elsewhere recently. 

It is important to visit jurisprudential principles and the issues in this ordinance. 

First, the question of how effective the new law will be is open to debate. In a study published in the United States in the Journal of Criminal Law and Criminology, an overwhelming 87 per cent of the criminologists who took part said that the capital punishment is unlikely to have an impact on crime. The subject of this study was murder. There have been other studies, too, that show that enforcing capital punishment does not necessarily reduce crime. Take the example of the European Union. Crime rates, in most countries, have gone down despite the fact that all the European countries (except Belarus) have abolished capital punishment. 

Further, the purpose of a criminal justice system is to stop crime. To put the entire burden of this on the punishment stage is not entirely satisfactory. In the study quoted above, 75 per cent of the respondents also believed that the debate around death penalty 'distracts' the legislature from 'focussing on real solutions to prevent crime.' Knee-jerk reactions, and hastily passed laws make a firm statement on the state's commitment to punishing the guilty. It does not necessarily bring about a cultural shift which is mandatory to stop crime. 

Most countries are in the process of abolishing capital punishment. One of the arguments against capital punishment is one of morality. Does the state have the moral right to take away its own citizen's life? More imminently, the argument against death penalty revolves around the inherent problems in the justice system. Whilst conviction and acquittal is done after great deliberation, it is not beyond imagination for the justice system to have made mistakes. In fact, in the United Kingdom for instance, in numerous cases, like that of Evans, the convicts who were executed were later posthumously pardoned. 

A system that is unquestionably and beyond all doubt perfect can, perhaps, impose a penalty which is as permanent as death. A system that is not perfect has its problems. In a study done by the National Law School, Delhi 38 out of 39 (retired) judges interviewed said that torture was 'rampant.' Torture can lead to fabrication of evidence, false testimony and ultimately miscarriage of justice. Thus, in a system where imperfection is so widely acknowledged, we have to be very careful in cases of death penalty. 

The Law Commission, in 2017 had recommended the abolition of death penalty. The report cited various international commitments and acknowledged that there was now a possibility to use more advanced methods of crime control and punishment. 

The chilling crimes and the aftermath have left the country in a shock. There is understandably an uneasiness in our minds. We must act to ensure the safety of each and every person. However, what is needed is a broader discussion and uniform implementation of engaging models that work and change the mindset of society.