By – Malvika Nambiar

Abstract

The death penalty is the most rigorous form of punishment that can be awarded by the criminal justice system. It is reserved for the most heinous crimes in the ‘rarest of rare cases’. However, in today’s times, this penalty is awarded in a manner that is largely arbitrary and judge-dependent. This practice is a violation of fundamental rights to which even accused persons are entitled. Can the idea of the death penalty be reconciled with the growing concept of reformative justice? How can these two completely opposing ideas co-exist? This paper seeks to analyse the two ideas of justice and whether these can be reconciled.

Introduction

The death penalty is harsh. Does any crime justify taking the life of those who committed it? What is the standard to determine those ‘deserving’ the death penalty? A plethora of questions boggles the mind of a prisoner awaiting trial in a remote Indian prison. He believes in his innocence, but the courts state otherwise. The man spends day and night awaiting death, made certain with the court’s judgment. The wait becomes the most intense part of being imprisoned, every shadow becoming more menacing and every silence deafening.

Prison is a dark realm that brings out scarier aspects of humanity. Treating prisoners in zoo-like conditions leads to barbaric behaviour. Irrespective of the verdict, the harassment, silences and isolation they suffer cause mental breakdown. For instance, the Netflix show Black Warrant amazingly captures this grim reality in the Tihar Jail. The main character is an outsider, learning the haunting truths of prison and the killers that await. The show consumes the viewer and takes one to the deepest and scariest parts of Tihar prison. A self-righteous officer who is determined to change the face of the prison system and reform conditions is exposed to the harsh truth of the Indian justice system; it is arbitrary and unfair, a slave to years of political and societal conditioning, and resistant to change. Hence, we must focus on reformation and abolish the death penalty. 

Death Penalty in India

The Bharatiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Nyaya Sanhita confer powers on the State and the Union Government to confirm the death penalty awarded by the courts concerning various offences. The case of Bacchan Singh v. State of Punjab led the Supreme Court to a judgment that there must be ‘aggravating and special circumstances’ to justify it. However, the nature of these aggravating circumstances was not clearly defined. Hence, in the case of Macchi Singh v. State of Punjab, the judiciary established guidelines to follow before awarding the death penalty, including consideration of the socially abhorrent nature of the crime and the circumstances that led to its commission. These guidelines would help rule out the death penalty in most cases, and life imprisonment could be considered.

Yet, the problem with using this doctrine is that it is extremely subjective and judge-centric. As the American Realists have often stated, the law is what the judge had for breakfast. In the case of the death penalty, subjectivity can be literally and figuratively fatal. For example, the Punjab and Haryana High Court commuted the death sentence of a man accused of raping his 17-year-old daughter and getting her pregnant. He is now subject to thirty years in prison. The court held that this case was not a ‘rarest of rare situation’ requiring the death penalty. However, many opine that at least life imprisonment should have been awarded to the accused for committing such a heinous crime. These kinds of crimes shock the moral conscience of society, and to leave it up to a bench to decide on the life of the accused is a game of chance.

The Indian Constitution guarantees citizens’ rights to equality, freedom of speech and expression, and the right to life, enshrined in the golden triangle of Articles 14, 19, and 21. Justice Bhagwati has openly criticised the death penalty as being unconstitutional and against human rights in his dissent in the Bachan Singh case. The majority bench held that the death penalty is awarded under notable provisions of the Constitution, such as Article 72(1)(c), 161 and 134. Yet, the Constitution is a living document that evolves with progressive changes, an example being the decriminalisation of homosexuality. According to Justice Bhagwati, the most worrying omission was upholding the death penalty without dealing with the issue of pain and suffering inherent to the punishment.

The Painful Effects of the Death Penalty

A report by Project 39A found an overwhelming mental health crisis among prisoners awaiting death penalty in India. This crisis is further exacerbated by the poor living conditions, physical and sexual harassment, social isolation and ostracisation of not just the prisoners but also their families.

The 262^nd Report of the Law Commission of India concluded that the death penalty neither has a deterrent effect on crime nor is it a justified form of retribution. Unfortunately, the criminal justice system works in favour of those who have the resources to defend themselves. India has an alarming rate of wrongful convictions, and the death penalty makes such convictions more worrisome. According to Matters of Judgement, an opinion study by Project 39A involving sixty former judges, one confirmed that the police would often pick up helpless men and torture confessions out of them even if they were innocent. Botched up investigations and a lack of good defence counsel impede the presentation of a comprehensive picture of the accused and their lives, costing many innocent people their lives. 

Death Penalty and Reformative Justice

Humans are adaptable beings, capable of reform. Human rights are for all, not just the victim. The justice system must be willing to look at the possible reformation of the accused persons before awarding the death penalty. Prisoners’ rights have become important in the international law space, with Nordic countries such as Norway adopting a reformative prison system that believes in treating prisoners as human beings. The system provides a conducive environment for potential change. Reformative justice includes a mix of humanity and accountability. The offender can  make amends with the victims and walk a ‘second mile’. 

A retributive system makes the accused run from justice and adopt strategies that delay justice. Poor and dangerous conditions chip away at the humanity left in prisoners, who toughen up to survive prison. This makes their transition back into ‘normalcy’ difficult and leads to more crime. A retributive criminal system purports a cycle of crime where prisoners are stuck. This is seen across cases, including the tactics adopted by the convicts in the Nirbhaya case to delay their execution. As per a US based study (a country with a harsh retributive system and high recidivism rates), prisoners once free are unable to find jobs, live a normal life and are forced to return to crime. Hence, a death penalty provision stands in the way of a reformative system. On the one hand, we are changing our laws, seeing the potential of accused persons to reform and granting judicial discretion. On the other hand, the retributive system is maintained in ‘rarest of rare cases’. This law is not only futile in the face of many more progressive laws but also is a hindrance to societal growth and development. 

A reformative system can save an accused person from severe mental distress, agony, and save their families. While there are attempts to institute a reformative system through more lenient bail laws, judicial discretion is considered to be the underlying cause of committing the crime due to reduced sentencing. There is a need for bigger leaps into reformative laws. A structured policy of how and when reformation is possible must be introduced.

Conclusion

Black Warrant refers to a death sentence signed by judges. The show portrays a glaring symbolism of breaking the nib of the pen used to sign the document since it has signed a life away. The show’s protagonist adapts and engages with his conditions as a prison manager to ultimately realise that dysfunction in our judicial and political system persists. The hierarchy will never be erased, and the power to end a life encompasses within it greater political power that wants to maintain the status quo.

Studies show that there are several proponents of both abolitionist and retentionist arguments for the death penalty. Even if the death penalty were to be abolished, what would justice look like? The answer lies in reformation aimed at making every prisoner an upstanding, responsible citizen. We need to move past theory and invest in reformative facilities. A structured path with streamlined guidelines for sentencing can lead us to a reality where life, instead of death, is the answer.

About the Author

Malvika Nambiar is a final-year law student at O.P. Jindal Global University, pursuing BA LLB (Hons.). She is interested in International Human Rights Law, Business, Dispute Resolution and their intersection.

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