Why the Death Penalty Should Be Abolished

In 2015, Momin Khan, Jaikam Khan, and Sajid Khan were convicted and sentenced to death by the Bulandshahr trial court. Three years later, the Allahabad high court confirmed the judgement (while acquitting another convict).

Jaikam and Momin are cousins and Sajid is Jaikam’s son. They were charged with the murders of six relatives – Momin’s parents and brother, his sister-in-law and nephew and his brother’s niece – over an intra-family property dispute. The homicides were deemed fit to be in that small category of cases – crossing the Supreme Court’s “the rarest of the rare” threshold – to merit capital punishment.

On December 15, 2021, the three were exonerated. In its acquittal order, the Supreme Court reported amazement at the high court’s judgement. It spelt out the numerous gaps in the prosecution’s case – which the high court glossed over with “conjectures and surmises”. In its final decision, the apex court wrote that the prosecution had “utterly failed” in proving their case beyond reasonable doubt. 

The conclusion – and this must be stressed – was not that the courts had been too harsh in awarding the death penalty but that the entire case was baseless. In other words, innocent men would have been hanged if the ruling had not been appealed.

Whilst the efforts of their advocates and other organisations in fighting for their cause are commendable, this situation does not reify confidence in our criminal justice system. It only reasserts the urgent need of reckoning with the place that capital punishment holds in our broken architecture of punishment.

The rationale and practice of capital punishment

The case for capital punishment seems instinctual and easy to make. It ensures greater safety for victims and survivors and aborts the possibility of recidivism (relapse into criminality), potentially saving many lives. It is also a deterrent par excellence, advocates for it say, although that is a deeply contested, if not rebutted, proposition. 

At a more jurisprudential level, one might argue that it encapsulates 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 penalty worthy.

These have all been recognised as legitimate arguments by the Supreme Court in its landmark Bachan Singh v State of Punjab case, where Justice P.N. Bhagwati had mounted a spirited critique of the death penalty and the majority judgement, but stood in a minority of one.

Moreover, the verdict said the Constitution’s drafters did not seek to abolish the death penalty. This was a convincing argument, no doubt, considering the Constituent Assembly had known about the penalty and specifically baked an exception into Article 21, which guarantees the right to life and liberty. 

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

Some of the mitigating factors are the accused’s youth, intellectual disability, duress, justification and unlikelihood to recidivate (a subjective assessment of the accused). The aggravating circumstances mentioned include cold-blooded murder – “diabolically conceived and cruelly executed” – and murders of “extreme depravity.” The Supreme Court has stated that judges, in balancing their equations, should interpret mitigating factors as expansively as possible. Recent jurisprudence has emphasised that the crime should not be siloed; a broader analysis of the crime and the criminal is necessary. 

Sentencing and the failings of our criminal justice system

There are, therefore, a host of conditions courts should consider in the sentencing stage. Whilst courts have been criticised for being trigger-happy in the past, particularly in cases that draw a lot of public interest, the Allahabad high court’s sentence – against the backdrop of the Supreme Court’s guidelines – was not beyond the pale. 

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

There were no compelling mitigating factors on their side. Whilst the state must prove that the defendant is beyond reform, the high court’s view – that people who unhesitatingly slaughter blood relations with deadly weapons fit this description – is not irregular. As Anup Surendranath of the anti-death penalty ‘Project 39-A’ said, “The capacity of being reformed is meant to be a forward-looking consideration. . . . But the [Supreme Court] is not interested in eliciting this information.” 

In other words, the punishment is not the issue here, at least in the context of capital punishment sentencing in India. The case, instead, reflects part of what is fundamental in the criminal system: that it is composed of human beings. It is not – and cannot be – free of caprice and error. Bias clouds judges’ eyes. Oftentimes, even unwillingly, the deepest prejudices within us overtake our sensibilities; the bigotries of caste, class and religion too often govern who is convicted.

Entrusting a system like this – riddled with human mistakes – with further determining questions of life and death leads to situations like Momin, Jaikam and Sajid’s. One may argue that this error is an outlier – and maybe it is. But outliers do happen and there is no guarantee that an appeals process will change anything, particularly if the convicts are starved for resources and unable to afford good representation.

Moving towards abolition

There may very well be people worthy of the death penalty; people whose actions are so bloodcurdling that there can be no other response. One other reason for the death penalty that I did not mention above is that it offers closure in these cases. In its finality, survivors and their families may grieve and find catharsis.

That is also what is wrong with it. Sentencing an innocent person to life in prison robs them of the joys of free human life. In many cases, it is difficult to recompense that. But it nonetheless allows for the possibility of a return to freedom. Capital punishment forecloses on that possibility; it is absolute and irreversible. No unearthing of forensic evidence or change in facts can alter that. 

There are several moral arguments against the death penalty that find purchase among certain people. Catholics (and here I must disclose that I am one), for example, believe dignity inheres in all human life; the Church’s preaching on the death penalty, therefore, is resolutely abolitionist. I agree with this position. There is no justice in snuffing out human life; it restores nothing, only destroys. 

But I understand these contentions are necessarily limited in whom they appeal to. A more inviting argument – one that I have tried to outline above – is simply that the human institutions tasked with the question of life and death are too human for it. The Supreme Court must reconsider its view on capital punishment. 

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