Why the death penalty should be abolished

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In 2015, Momin Khan, Jaikam Khan and Sajid Khan were found guilty and sentenced to death by the Bulandshahr Magistrates’ Court. Three years later, the high court of Allahabad confirmed the judgment (by acquitting another convicted person).

Jaikam and Momin are cousins ​​and Sajid is Jaikam’s son. They were charged with the murder of six family members – Momin’s parents and brother, his sister-in-law and nephew and his brother’s niece – in an intra-family land dispute. Homicides were deemed fit to fall into that small category of cases – exceeding the Supreme Court’s “rarest of few” threshold – to merit capital punishment.

On December 15, 2021, the three were exempt. In its acquittal order, the Supreme Court expressed its amazement at the judgment of the High Court. He spelled out the many loopholes in the prosecution’s case – which the High Court overshadowed with “guesswork and guesswork.” In its final decision, the Supreme Court wrote that the prosecution had “totally failed” to prove its case beyond a reasonable doubt.

The conclusion – and it should be emphasized – was not that the courts had been too harsh in imposing the death penalty, but that the whole case was without merit. In other words, innocent men would have been hanged had the decision not been appealed.

While the efforts of their advocates and other organizations in the fight for their cause are laudable, this situation does not reify confidence in our criminal justice system. It only reaffirms the urgent need to take into account the place that capital punishment has in our broken architecture of punishment.

The justification and practice of the death penalty

The advocacy for the death penalty seems instinctive and easy to do. It provides greater safety for victims and survivors and eliminates the possibility of reoffending (relapse into crime), potentially saving many lives. It is also a deterrent par excellence, say its supporters, although it is a deeply contested, if not refuted, proposition.

At a more jurisprudential level, one could argue that it encompasses the principle of proportionate retribution. This argument is based on the premise that retribution is a component of our punitive justice system and for certain crimes – murder, rape and the like – the death penalty is the only punishment worthy of the name.

These arguments were all recognized as legitimate arguments by the Supreme Court in its landmark decision. Bachan Singh v Punjab State case, where judge PN Bhagwati had mounted a lively criticism death penalty and majority judgment, but was only a minority.

In addition, the verdict stated that the framers of the constitution did not seek to abolish the death penalty. It was a compelling argument, no doubt, given that the Constituent Assembly was aware of the sentence and specifically incorporated an exception to Article 21, which guarantees the right to life and liberty.

However, Bachan singh became famous for another reason: it stipulated that the death penalty could only be applied in “the rarest” cases. In order to determine the “rarest of rare” cases, the Court identified certain elements – both aggravating and mitigating – to which courts should refer in capital punishment cases.

Some of the mitigating factors are youthfulness of the accused, intellectual disability, duress, justification, and likelihood of recidivism (a subjective assessment of the accused). Aggravating circumstances mentioned include cold-blooded murder – “devilishly designed and cruelly executed” – and “extreme depravity” killings. The Supreme Court said judges, when balancing their equations, should interpret mitigating factors as broadly as possible. Recent case law has emphasized that crime should not be compartmentalized; a broader analysis of the crime and the criminal is necessary.

Sentencing and the failings of our criminal justice system

So there are a host of conditions that the courts should consider at the sentencing stage. While courts have been criticized for being trigger-happy in the past, especially in cases of high public interest, Allahabad’s high court sentence – in the context of Supreme Court guidelines – did was not beyond pallor.

If we accept the state’s version of events, we could plausibly state that all three defendants deserve death. The homicide was cold-blooded and calculated. They used a dangerous weapon which they sought beforehand. Momin killed his parents and his brother; all were close relatives of Jaikam and Sajid.

There were no compelling mitigating factors on their side. While the state must prove the accused to be irreformable, the High Court’s view – that people who unhesitatingly massacre blood ties with deadly weapons fit that description – is not flawed. Like Anup Surendranath from “Project 39-A” against the death penalty noted, “The ability to be reformed is a forward-looking consideration. . . . But the [Supreme Court] is not interested in getting this information.

In other words, punishment is not at issue here, at least in the context of capital punishment in India. The case, on the contrary, reflects part of what is fundamental in the penal system: that it is made up of human beings. It is not – and cannot be – free from vagaries and errors. The bias obscures the eyes of the judges. Often, even reluctantly, the deepest prejudices within us transcend our sensibilities; sectarianism of caste, class and religion all too often determine who is condemned.

Entrusting a system like this – riddled with human error – with other defining life and death issues leads to situations like those of Momin, Jaikam and Sajid. Arguably, this error is an outlier – and maybe it is. But outliers do occur and there is no guarantee that an appeal process will change anything, especially if convicts are under-resourced and cannot afford good representation.

Towards abolition

There may very well be people who deserve the death penalty; people whose actions are so frightening that there can be no other answer. Another reason for the death penalty that I didn’t mention above is that it provides a closure in these cases. In its finality, survivors and their families can grieve and find catharsis.

This is also what is wrong. Sentencing an innocent person to life imprisonment robs him of the joys of a free human life. In many cases, it is difficult to reward this. But it’s still allow for the possibility of a return to freedom. Capital punishment excludes this possibility; it is absolute and irreversible. No discovery of forensic evidence or change of facts can change that.

There are several moral arguments against the death penalty that resonate with some people. Catholics (and here I must reveal that I am), for example, believe that dignity is inherent in all human life; the Church’s preaching on the death penalty is therefore resolutely abolitionist. I agree with this position. There is no justice in stifling human life; it does not restore anything, it only destroys.

But I understand that these assertions are necessarily limited to who they appeal to. A more appealing argument – which I tried to make above – is simply that the human institutions dealing with the issue of life and death are too human for that. The Supreme Court must reconsider its view on capital punishment.

Kieran Correia is a law student at Jindal Global Law School.


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