Ever since the enactment of the Indian Constitution in 1950, public awareness of problems with death penalty and prevailing legal standards has evolved significantly. In dozens of countries, democratic governments in the course of conducting a major review of their national constitutions have decided to curtail or abolish the death penalty. Nearly all European and several Pacific Area states (counting Australia, New Zealand and Timor Leste), and Canada have abolished death penalty. The majority of states in Latin America have also absolutely abolished capital punishment, however, a few countries, like Brazil, use death penalty only in special situations, for example, treachery committed during wartime.
In India also, it should be noted that right from the days of the British rule, there has been a strict opposition to the enforcement of capital punishment. For example, in 1931, Gaya Prasad Singh, a member of the Legislative Assembly introduced a Bill in the Assembly which proposed to abolish the death penalty in the country. However, it was overturned. Other significant events were the Supreme Court judgements in Jagmohan Singh V State of U.P. and in Bachan Singh V State of Punjab. In these cases the Supreme Court held that death penalty is an exception not a rule and also came up with the doctrine of ‘rarest of rare case’. Thus, these developments in these cases can be regarded as the steps towards an attempt to abolish the death penalty. In retrospect, these cases are neither a small nor the insignificant achievement for the abolitionist.
It is now recognised in both national and international systems that the death penalty has no place in a democratic and civilised society. India is sovereign, secular, and democratic but yet, it is astonishing that India is one of the few countries in the world which still embraces the concept of capital punishment or the death penalty. Through this paper, the Author is going to study what Bentham has said about death penalty and will try to find out its relevancy in India.
Now coming to the theory, since Socrates, philosophers have examined the morality and policy of the death penalty, but Bentham devoted more space to the topic than any of his predecessors. Jeremy Bentham twice undertook to apply his general utilitarian principles of punishment to a critique of death penalty. First was in 1775 and the second was in 1831. In his 1775 essay, firstly he explained the distinction between ‘simple’ and ‘afflictive’ death penalties and then also criticised the latter. Then he argued his case against the death penalty on the utilitarian grounds. His second effort in 1831 was entitled as ‘On death penalty’. This effort was mainly devoted against the death penalty on utilitarian grounds as it was made in his earlier effort of 1775, but the style was distinctly inferior then his essay of 1775. Thus taken together Bentham’s 1775 and 1831 essays constitute of the death penalty unique among leading philosophers.
BENTHAM’S ANALYSIS OF DEATH PENALTY
The structure of 1775 essay of Bentham on capital punishment was not simple. He gave four factors in favour of capital punishment and four factors in against of it. But he in his ultimate analysis found the later four outweighing the former. Thus, in his view, if a choice is given between the death penalty and an alternative punishment, a utilitarian must favour the alternative. So, the Author will confine himself to the factors which were against the capital punishment.
But Bentham’s critique of the death penalty in 1831 differs both in structure and in rhetoric from his essay of 1775. In his essay of 1831, he only favours the abolition of the death penalty not like that of 1775 essay in which he favoured also it with some reasons. Also in 1831 essay, instead of making factor by factor critique, Bentham argues entirely around four ‘bad properties of the death penalty’.
So, in totality there are seven factors (one factor ‘Irremissibility’ can be found in both of his essays) on which Bentham favoured the abolition of death penalty. Out of these seven factors, the first three can be easily made applicable in India without any much explanation but the other four need some explanations to prove whether they are relevant or not. All these factors are discussed in detail below:
Bentham says that a dead convict cannot provide ‘compensation’. By convicting a person to death penalty, we are actually destroying a source of ‘compensation’. He says that compensation may be for repairing the loss suffered by the victim of the crime or to the loss suffered by society in bringing the offender to the justice. So, according to him, death penalty prevents both sorts of compensation and thus, death penalty is unprofitable and not convertible to profit.
‘Frugality’ can be explained by an example-Fine a wealthy man Rs. 10,000 and use it to distribute Rs. 100 each to poor persons. Such a fine would inconvenience one wealthy person only slightly but would benefit many poor persons to a great extent. Here, Bentham argues that death penalty is defective in the point of ‘frugality’. He said this because he thinks that the infliction of death penalty fails to produce the desirable quantum of pleasure if compared with the amount of pain produced to the person punished. What Bentham thinks that imprisonment can do this more effective. He also gives reasoning for what he claims. He says that the convicted person can be beneficial to the society only when he is alive. He can do good works during punishment or afterwards and both are possible only with imprisonment not with capital punishment. Thus, through this back door Bentham introduces the idea of the utility of reform.
Under this heading, Bentham has two quite distinct points to make. The first aspect of inequability is the absence of what he calls ‘variability’ or that general property of punishment by means of which it admits of more or less, as with lashes of a whip or time in prison. The second property is that by virtue of which, when punishment is inflicted, everyone who undergoes it experiences the same amount of pain. Bentham calls it ‘Equability’. It is the second point on which he devotes much attention. For some offenders, Bentham says that death constitute ‘a very heavy punishment’, but for a person who is ‘a first-rate delinquent’, long hardened to grim circumstances of life, it may be ‘next to nothing’. Bentham thus repudiates the seeming egalitarianism of the death penalty. Thus, he argues that the death penalty cannot serve as an effective deterrent from the fact that the prospect of death has such a differential impact on the imagination and motivation of prospective criminals.
Now, the Author is going to analyse the other four factors which need some explanations to show whether they are relevant in India or not. They are:-
For this Bentham divides punishments in two parts, namely, continuous and instantaneous. Continuous punishments are those in which punishment if given for a time period may be made to cease at any point of time. And Instantaneous punishments are those in which if any part of punishment is suffered that every part will be suffered. Thus, he says:
‘For death there is no remedy’
For Bentham this is a winning ace. There is always a chance of wrong infliction of punishment. So, Bentham thinks that in case of death penalty, there is no chance to correct the erroneous infliction. But in case of imprisonment, there is always a chance to rectify the error and the person imprisoned wrongly can be made free to lead his life happily.
He further says that there is no way to compensate the wrongly executed person but a wrongly imprisoned person can be awarded a compensatory sum. This thinking of Bentham flows from his reasoning that criminal justice system can do such error in which an innocent can be executed or imprisoned. He further says that no occurrence of error can happen only in case of confession of the crime by the party accused, but he further says that this is not always made.
In his other reason to oppose capital punishment, he mentions that executing a criminal destroys a source of testimonial proof, concerning other crimes, committed by the offender or by other criminals. So, he thinks that if that convicted criminal is kept in a prison under imprisonment can divulge important information regarding whereabouts of other criminals and their evil-motives and thus, in this way he can aid the justice. Thus, he says that in utilitarian terms, the usefulness of the convict to the administration of criminal justice is frustrated by the death penalty, at least when compared to imprisonment.
In order show that this practice is prevalent in Indian Judiciary system, the Author refers to a landmark judgment in Rajiv Gandhi Assassination case. This case serves as a warning to the dangers of sending an innocent person to the gallows. The three Judges of the Supreme Court who heard the case concurred in holding that none of the 26 accused could be held guilty of any of the offences they were charged with under TADA and acquit all of them of those offences. Only 7 of the accused was found guilty of offence under Section 302 IPC read with 120-B and out of those 7 only 4 were sentenced to death. The others were set at liberty since they had served more than 8 years in jail.
Thus, this shows that there is always a chance of an innocent getting the death penalty. The above case is just an example of such possibility. It cannot be denied that in India there are many more cases like that. There is more chance of poor and minorities people being subjected to this type of injustice. In this way it also infringes the constitutional ‘right to life’ provided in Art.21 of the innocents. Thus, this factor has relevancy in India.
This property was not mentioned in the 1775 essay. He says that the cause of inefficiency is the increasing hostility to the death penalty among the accused, witnesses, prosecution, judges and juries. He further says that all these parties to the administration of justice in effect conspire to withhold the death penalty, so that ‘this punishment fails of being productive of preventive effect looked for and endeavoured to be produced in a manner unlike what happens with ‘any other mode’ of punishment. So, Bentham is complaining of the administrative and judicial nullification.
Further, if death penalty becomes inefficient then it will not be able to deter the crime rate and if so then it should be abolished.
Today what Indian State argues that the presence of such a punishment will install a sense of fear and will act as a system to deter future criminals, and will safeguard the society against rising criminal and terrorist attacks. Public opinion, also often supports retention of the death penalty based on the erroneous view that it deters violent crime. However, it has been comprehensively proved by studies that death penalty is not as effective in the deterrence of crime as an ordinary life imprisonment. Thus, there is no co-relation between the threat of death penalty and the occurrence of violent crime.
Today, in India despite of the retention of death penalty there is no sign of any deterrence of crimes including murder or terrorist acts. If statistics are to be relied upon, then the countries which have done away with capital sentence and the countries which have abolished it have not witnessed any dramatic rise in the crime rate forcing them to re-introduce it. But on the other hand countries like China, Iran, Pakistan and Saudi Arabia which are still retaining the death penalty are struggling to reduce the occurrence of crime.
So, in Author’s view if death penalty is not serving the purpose of decreasing the crime in India then it should be abolished in conformity of what Bentham has to say on this point
Tendency to produce crime:
Bentham says that if evil is produced by false evidence, it can also be produced by extinction of true evidence. By false evidence a man may be invested with a right that does not belong to him and may also be divested of the right which belongs to him by the extinction of true evidence. Likewise, by false evidence a guilty may be acquitted and a guiltless may be convicted of capital punishment. Now what happens due to this that the real guilt are encouraged to more and more crimes because they know that even after doing the crimes they can escape the liability taking the help of false evidences. So, he says hat thus it has a tendency to produce crimes.
In Indian context this should be kept in mind that we have a large numbers of poor and under privileged in the society. The most common victims of the death penalty are the have-nots and the under privileged of the society. This phenomenon pervades throughout the globe, whether it is the Afro-Americans in the United States or the poor in India. It is quite logical because a competent lawyer can save a person from the death penalty irrespective of the crime committed by him or written law in the books. He can also produce false evidences to bring case in his favour and thus can make the innocent to be hanged. It is also quite obvious that a competent lawyer comes with a price which cannot be affordable by the poor or under-privileged. Now left to the mercy of inefficient state legal aid boards, these under-represented and ill-represented people finally suffers injustice.
In post independent India, there is hardly any affluent person who has been hanged. So, poor and the under privileged are more subjected to the death penalty. It just brings out the fact that an execution of death penalty is not one isolated incidence. So, it will be foolish to believe that society will be unaffected by any such legitimate killing.
Enhancing the evil effects of undue pardon:
Pardon, as Bentham says, is an act of ‘mercy’ and as such is a ‘mischievious’ eruption of God-like attributes that have no place in a society governed by penal code that takes ‘for its first principle the greatest-happiness principle’
He further says that Punishment is everywhere necessary and thus also its application but ‘Pardoning Power’ is also a requisite part of judicial process. Evils which are liable to be produced by pardoning power is due to its unapt application. Here, unapt application means exercise of pardoning power without any guidelines. The Author will explain the evil effects of pardoning power in the absence of any guidelines in the context of Indian scenario.
The power of the executive to grant pardon is vested in both the President and the Governor under the Articles 72 & 161 respectively of the Indian Constitution. In Manu Ram V Union of India, a Constitution Bench of the court held that the power under Article 72 is to be exercised on the advice of the central government and not by president of his own, and that the advice of the government binds the head of the state. This was also reiterated in Kehar Sing V Union of India.
So, in the context of the above decisions, in deciding the clemency petition the President has to take the advice of the Council of Ministers. The evil which is created by this is that there is always a chance of political consideration weighing the decision to exercise it and so, there is always a chance of wrong outcomes. The political interference can play its ugly role in deciding a clemency petition.
Further there is no provision of publication of the grounds on which a petition of a clemency has been decided. In Gentela Vijayvardhanrao V State of A.P., the Supreme Court of India held that in the absence of the requirement to give any reasons for such decision and further since the order of the President is neither published nor made available, it is impossible to know what weighed the President in commuting the sentence. If such decisions were made public it would help know the factors in deciding the case of clemency and thus would provide guidance for the future. This case also shows that there is a reasonable apprehension that it is capable of being arbitrarily used. If it is coupled with the above issue of political interference in the decision, the apprehension of the arbitrary use of this power is increased further.
The next issue with the pardoning power in India is that there is no any time limit mentioned in our constitution for deciding a case of clemency. Sometime what happens that the petitioner has to wait for an unreasonably longer period. So, during that period of pendency the petitioner passes through the phase of mental agony and trauma. Due to this, he suffers more than the punishment itself because he does not know that whether he will be alive in future or not.
In view of the above discussion, the Author can conclude that what Bentham has to say for the abolition of the death penalty has quite relevancy in India. While some of his factors, like no chance of reform or compensation in death penalty have general applicability, the others like irremissibility, non-deterrence and tendency to produce crime has been also found applicable by the Author by citing some cases and prevalent practices in India.
So, the next question which comes to our mind is that why it has not been abolished in India till date. The most obvious answer may be that it is analogous to the crime done by the convicted person. Secondly, it is thought that it creates a sense of fear in the minds of criminals and thus can prevent crime. The government also thinks about the cost of keeping the murderer in jail because that money can be used in other public services.
Despite of all these defences for death penalty, in India there is ever present risk of the execution of the innocent due to an unsafe judicial system. Disadvantaged sections of society — usually the poor and minorities — are disproportionately at risk of execution. The death penalty also asks public servants, prosecutors, judges, prison guards, etc, to betray their humanity and be involved in the brutal act of taking the life of a prisoner rendered defenceless, and no longer a threat to society, via their incarceration. The trauma and loss suffered by the family of the victim (in murder cases) is inflicted in turn upon the family of the person being executed, thereby continuing the cycle of violence. Thus, the Author would like to support that judicial state killing has no place in the modern world and that India should abolish the death penalty as soon as is practically possible and should follow the global move against the death penalty.
“If we believe that murder is wrong and not admissible in our society, then it has to be wrong for everyone, not just individuals but governments as well”
-Helen Prejean, Dead Man Walking
 AIR 1980 SC 898; 1980 Cri LJ 636
 In two chapters of Book II of his ‘Rational of Punishment.’
 In his essay ‘Jeremy Bentham To His Fellow- Citizens of France, On Death Penalty’