Capital Punishment: on the State’s Right to Kill

While delivering his final judgement as a Judge of the Supreme Court of India, Justice Kurian Joseph recently chose to disagree with his fellow judges and speak against the purpose and practice of capital punishment. He observed that death penalty has failed to achieve any constitutionally valid penological goals and that it was being arbitrarily and freakishly imposed.

Though the majority of the bench, while delivering judgment in Chhannu Lal Verma vs the State of Chhattisgarh, reiterated the 40 years old views of a constitutional bench in 1980 that approved of the state’s right to kill, the resounding dissidence from Justice Kurian Joseph has ensured a fresh debate on the contentious topic of death penalty in India.

Is the practice of capital punishment justifiable?

Punishment, being unnatural and a practice imposed by human authority, cannot be executed for its own sake and needs to be justified with reference to its consequences or intention.

In the historical evolution of the state, it has come to be the responsibility of the state to protect the legitimate interests of its citizens, life being the most important among them. In return, individuals subject themselves to the rule of law under the state. Under this arrangement, state and its instrumentalities are authorised to exercise violence in their efforts to protect the innocent against arbitrary violence by the violators of law. Capital punishment is arguably the highest form of violence that a state is authorised to perform.

It may be argued that the criminal, by committing or attempting to commit a heinous crime against an innocent person, murder for example, forfeits his own individual right to live as a rational moral agent. Hence, it is moral and justifiable for him to be killed by the attacked in defence or by the state to preserve the common good, the argument in favour of capital punishment says. This was the line of argument that Thomas Aquinas presented in saying that “... therefore to kill a man who retains his natural worthiness is intrinsically evil, although it may be justifiable to kill a sinner just as it is to kill a beast, for, as Aristotle points out, an evil man is worse than a beast and more harmful.”

This argument is in line with the retributive intention of punishment. The element of vengeance in capital punishment cannot be ignored as is often seen in the expression of a society’s desire to have someone executed. But, in awarding death penalty to a murderer, what difference exists between a state that claims to be modern and civilised and a criminal, violent and inhumane that the state doesn’t think deserves to be alive? – one can always ask.

It may be doubtful if capital punishment serves any other purpose of punishment like deterrence or reformation than retribution. Death penalty does away with the possibility of reformation for sure and there is no empirically proven data to argue for the deterrent effect of capital punishment. At best, it is unproven. A survey conducted for the UN in 1988, to find out the relation between death penalty and homicide rates, concluded that “research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis.”

We could also ask the moral question as to if it is ethically acceptable for the state to force someone pay with life for the predicted crimes of others in the future.

Even when capital punishment is justified as an ethical practice on whatever account, we should ask another question as to what should be the burden of proof in cases of capital punishment and make sure that it is specified and always met. The burden of proof in case of capital punishment must be much higher than normal as death penalty is an irreversible form of punishment. The burden of proof must be objective and possible and the system must weigh the risk of executing an innocent person heavily. When that is not possible, it is better to abolish the practice for the possible tragedy of executing an innocent person.

What if death penalty is arbitrary?

As mentioned in the beginning of the article, Justice Kurian Joseph of the Supreme Court, termed the practice of capital punishment as arbitrary and inconsistent, re-enflaming an already existing debate on the sanctity and permissibility of capital punishment in a modern civilised state. This statement echoes with the observation of Justice Harry A. Blackmun of the US Supreme Court that “despite the effort of the states and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake.”

Not only in its very purpose, but also in its practice, capital punishment is flawed, Justice Joseph observed. Capital punishment is “arbitrarily and freakishly imposed”, in most cases to satisfy the public conscience. The decision making process as to what constitutes “the rarest of the rare” is too subjective to be depended upon in such significant matters as another human person’s life.

The judgment in discussion also questioned the application of psychological and psychiatric intervention made before unquestionably closing on a person’s capacity for reform or rehabilitation. What scientific measures do we take in particular cases, even if capital punishment was an unavoidable and constitutionally valid form of punishment? The practicality and implementation process of death penalty, at least, has to be immediately debated upon, if not the existence of the practice itself.

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The senior Judge also lamented the unduly influence of public discourse on crimes and criminals, which are emotionally charged and are often legally incorrect, over the judgments made in the case. The judiciary’s efforts should be to be constitutionally correct, even if it is against the majority view of the public. But it is important to note that Justice Kurian Joseph was emphasising on the imposition of the biggest form of punishment in inconsistent ways and the judges’ inability to judge objectively as to what was a “rarest of the rare” case.

A basic research into factors like the social and economic status of persons granted death penalty and their victims may help to empirically establish if what the judge observed is true. The traditionally powerless and the vulnerable that can satisfy the public consciousness and imagination are often made subjects of capital punishment, it is alleged. The former President of India, APJ Abdul Kalam had also mentioned that as President of India he felt pain in deciding on death penalties as most of the cases had 'social and economic bias' in them.

The dissenting position of Justice Joseph should also be seen in the light of the admissions made by the apex court of its own past errors in imposing capital punishment in a number of cases. No possibility for such fatal errors as killing someone innocent using state machinery should exist, even if the mistakes occur only in isolated cases, since Capital punishment is irreversible and lethal.

If proven to be arbitrary and inconsistent, it violates a fundamental principle as far as capital punishment is concerned that death penalty must be imposed 'fairly, and with reasonable consistency, or not at all.” There is an urgent need to conduct proper research about the histories and situations of the executed by the state so that the consistency or arbitrariness of capital punishment could be empirically established. If proven arbitrary, inconsistent, and fallible, that single factor should work as sufficient ground to abolish the institution of capital punishment, no matter if such form of punishment was morally permissible.

Alternative forms of punishment

Can evil be fought with evil might be a question too philosophical to merit a discussion in the legal circles. But an eye for an eye is the most primitive form of punishment that a civilised society can think of. The negative effects of capital punishment on the society are telling. It is commonsensical that violence, criminal or legal, leads to more violence. The FBI Uniform Crime Report shows that among the US states, more murders take place in states where death penalty is practiced.

Though capital punishment is not a degrading public spectacle in most of the civilised countries today, the dramatic presentation of capital punishment by the media makes sure that the public is aware of the horror and violence involved in death penalty, one that is imposed on their behalf. Death penalty may lower the moral tone of the society and lead to brutalisation of the society in such a way that it will have strong implications for the state’s relationship with the citizens.

As a matter of principle, a civilised state should aim to force least violence when this is unavoidable. If there are better alternatives to deter potential criminals, the highest form of violence/punishment should not be applied. More than death penalty, what might deter a potential offender is the higher likelihood of speedy detection, arrest and conviction.

There are only a few countries in the world today that allow death penalty. If the other countries have effective ways of punishing crime and appropriate ways of ensuring an orderly and legally satisfied society, such alternative practices should be emulated. And capital punishment has to be abolished as being overtly harmful.

Human life is too valuable to be snuffed out in a stroke. A civilised society should also seek to understand the circumstances that made a human person criminal - the role and responsibility of a society in the making of a criminal - and the possibility of bringing the culprit back to normal life and reforming the society.

Conclusion

Laws and policies are to be changed timely, in accordance with the new sensitivities that the society comes to realise, and capital punishment is no exception. The authority of the state to practice capital punishment or any other legislation stems also from the collective will of the people. If so, as a society moves forward to newer insights and values, the laws enforceable by the state should accordingly change too.

Justice Kurian Joseph’s judgement quoted extensively from the 262nd report of the Law Commission submitted in 2015, whereas the constitution bench while upholding the constitutional validity of capital punishment in the Bachan Singh case in 1980 had relied on the 35th report of the Law Commission, submitted in 1967. During the few decades in between, the sensitivities of the Indian and international societies have changed and the enthusiasm for blood thirsty forms of punishment has generally given way to more humane responses to crime in the society.

In the authors’ opinion, capital punishment in more ways fails the purposes of punishment than it serves and is not one without alternatives. It hinders a society’s journey toward sensitivity and civilisation. As opined by the dissenting Judge, it is time that we reviewed the practice in line with the march of jurisprudence and international trends and took a stand against capital punishment. It is hoped that the minority but convinced stand of Justice Kurian Joseph in the present case will initiate healthy discussion on the practice of capital punishment.

References

1. Jose Abraham, Advocate on Record, Supreme Court of India
2. Dr. Bins Sebastian, Assistant Professor, Department of Philosophy, St. Stephen’s College
3. Channu Lal Verma v. State of Chhattisgarh, 2018 SCC OnLine SC 2570
4. Bachan Singh vs. State of Punjab (1980) (2 SCC 684)
5. Thomas Aquinas, Summa Theologiae, 2-2, q. 64, a. 2.
6. Amnesty International, The Death Penalty: Questions and Answers,
7. The New York Times, “Blackmun: ‘I . . . Concede That The Death Penalty Experiment Has Failed’”,
8. The Wire, “Kalam Wants Abolition of Death Penalty”,
9. The Telegraph, “You were wrong, My Lords”,
10. Eddings v. Oklahoma, 455 U.S. 104 (1982)
11. Death Penalty Information Centre, “FBI Crime Report Shows Murder Rates Remain Higher in Death Penalty States”,