Capital Punishment: Collective Conscience And The Cost of Justice

“Under what circumstances is it moral for a group to do that which is not moral for a member of that group to do alone?” ― Robert A Heinlein

Crimes like gang rape, cold-blooded murder, hate crime and terrorism with their unimaginable brutality are some of the constant subjects taking up space in Indian newspapers and television screens and consequently in the social discourse.The public outrage created over them as a result of extensive media coverage has negated the long developing jurisprudence in favour of the abolition of death penalty. The nature of these crimes is so horrific that even the abolitionists are shaken in their beliefs.The collective conscience of the society demands justice, condign and swift, and it seems that nothing short of death penalty would suffice. 

Capital Punishment-Collective Conscience And The Cost of Justice


The term capital punishment is taken from the Latin word ‘capital’ which means ‘head’. It means the execution of a person convicted of a crime after going through proper judicial process. It was a popular punishment in ancient times but with the passage of time, the concept of right to life developed and it was seen as morally unacceptable. More than two-thirds of the countries on earth have abolished it.

It has multiple grounds of justification. Most prominent is the concept of deterrence, that capital punishment serves as an example to future offenders and deters them from committing such horrendous crimes thereby serving an important social function of social peace and security. The retributive theory of punishment says that an individual is morally responsible for the consequences of his actions and despite knowing this if he goes on to commit a crime, he should get the punishment, it being the just reward for his actions.


Since Indian independence, the constitutionality of this form of punishment has been challenged in Indian courts in a  number of cases. Bachan Singh v State of Punjab (1980) is a landmark case in which the Supreme court declared that death penalty is not unconstitutional and does not violate Article 21(right to life and personal liberty). But the court limited its application to the rarest of rare cases only. It held that life imprisonment is the rule and death penalty is an exception.The court laid down certain guidelines to be followed before awarding death penalty :

1.This penalty should be awarded only in gravest cases of extreme culpability.

2.Not only the circumstances of the crime but also those of the offender must be considered.

3.Death penalty should be awarded only when life imporisonment seems inadequate,regard being had to the nature and circumstances of the crime.

4.The  mitigating and aggravating circumstances have to be properly balanced.

In another landmark case, Machhi Singh vs State of Punjab(1983), the court attempted to define the expression rarest of rare and included in its ambit,cases where murder is committed in an extremely brutal , grotesque , diabolical,revolting or dastardly manner so as to arouse intense and extreme indignation of the community or when the murder is committed for a motive which evinces total depravity and meanness, or where murderer is in a dominating position or in a position of trust in relation to the victim, or it is a case of murder of multiple members of the same family.

Since then,the court has repeatedly cautioned that it should be used only where it appears that the convict is totally incapable of being reformed and rehabilitated.


As per the data made available by the National Crime Records Bureau, India has executed 22 convicts between the period of 1995-2018. The last recorded execution was of Yakub Memon in 2015 and was related to the offence of terrorism, same as the previous two(Ajmal Kasab and Afzal Guru), while Dhananjoy Chaterjee executed in 2004 was guilty of rape and murder of a 14 year old school girl.


According to the Supreme Court, the medical reports and other evidences have established the fact that the accused persons had treated the deceased-victim in a devilish and perverse manner, which is bound to shock the collective conscience of the community. Thus, the Court has held that the aggravating circumstances have outweighed the mitigating factors, and as a result, this case has fallen under the ‘rarest of rare case’ category. Therefore, the SC upheld the order of the High Court to sentence the accused persons to death.

The  aforesaid principles were applied by the Supreme Court in a recent judgment of Mukesh and another vs. State of NCT of Delhi 2017 (Nirbhaya case) involving the brutal rape and murder of para-medical student in december 2012 which had shook the conscience of the whole nation and created a storm of rage. The death penalty was awarded to some of the rapists.

Capital Punishment-Collective Conscience And The Cost of Justice


Despite the fact that the public is overwhelmingly in support of death penalty, jurists and social activists have repeatedly called for the abolition of the same.


Executions occur in 5.2 cases for every 1 lakh murders. 

There is no set standard to decide whether the particular case falls in the category of rarest of rare or not. It depends heavily on the judge’s discretion and personal beliefs. Abolitionist Judges never gave the sentence. Presidents like S. Radhakrishnan and APJ Abdul Kalam who were opposed to this punishment refused to reject mercy petitions while others who had opposite inclinations generally denied clemency. How can we let the personal belief of an individual be the deciding factor in a case of life and death?

Krishna Mochi case(2002) perfectly illustrates this problem, in this case, Justice  B.M.Shah acquitted the accused for insufficiency of evidence and the majority but Justices Agarwal and Pasayat not only found it sufficient to convict but also to award death penalty. 

Out of the 60 death sentences imposed by  the Supreme Court between January 1, 2000 and June 31, 2000, 15 (25%) were error ridden as admitted by the court itself. The Law Commission in its report in 2015 said that death sentences are ‘arbitrarily and freakishly imposed’.

Justice Kurian Joseph in his parting judgement in Chhanu Lal Verma v State of Chhatisgarh in November 2018 underscored the arbitrary manner in which it is imposed and how it is heavily influenced by public discourse and called for its review.


On March 5,2019 the Supreme Court found Khushwinder Singh guilty and befitting of the death sentence for killing six relatives of his wife with the motive of committing theft in Khushwinder Singh Vs State of Punjab. In a similar case of M.A.Antony Vs State of Kerala (2018) involving the murder of six relatives for money, the same court chose to commute the death sentence. The difference in both cases was that while in Khushwinder Singh, the court relied only on the pre-planned nature of the crime, its brutality and number of victims, the court in M.A. Antony chose to consider factors like socio-economic conditions and lack of criminal antecedents. In the former case the court made no attempt to consider the possibility of reformation of the convict.


There has been no study that proves or even positively suggests that death penalty is more effective in preventing crimes than other forms of punishment. In the US, states that employ capital punishment have substantially higher rates of homicide in comparison with the state who have abolished it. Deterrence only works when punishment is severe but also certain and swift. In fact, capital punishment will incentivize offenders of crimes like rape to kill their victims afterwards to avoid identification and in- turn prosecution.There should not be a need to state the fact that it is meaningless in crimes like terrorism or armed rebellion where the offender already has taken up an activity which is inherently fatal, capital punishment in such cases can only serve as a tool to validate their cause and commitment.


The police system in India is deeply flawed and is ridden with problems like custodial torture, unnecessary arrests and forced confessions. It is made more sinister because of the underlying biases in Indian society which permeate the walls of the criminal justice system. It should not come as a revelation that it is prejudiced against the weak and the poor. It leads to them being the prime targets for harsher punishments. Hardship is itself a normative value in punishment, it leads to demands for harder punishment for poor and the marginalized since their lives are already hard. Reformation for them is seen as a prize for their crimes.

The Death Penalty India Report (DPIR), released on May 6, 2016, by Project 39A of the National Law University, Delhi, for example, shows that 74% of prisoners on death row, at the time of the study, were economically vulnerable, and 63% were either the primary or sole earners in their families. More than 60% of those sentenced to death had not completed their secondary school education, and 23% had never attended school, a factor which, as the report states, “points to the alienation that they would experience from the legal process, in terms of the extent to which they are able to understand the case against them and engage with the criminal justice system.” Just as distressingly, 76% of those sentenced to death belonged to backward classes and religious minorities, including all 12 female prisoners.

In a flawed system like this, those without capital get the punishment.


What if the capital punishment is abolished? Does it result in injustice to the victims and their families? Has their loss been devalued? The answer is no. Already in most cases, it is not awarded, nobody can say that the victim has been wronged in these cases and injustice has been caused. Also, justice can be equally well served and protected by other forms of punishment, this form of punishment only causes the state to lose its moral authority and brutalizes the society .It teaches the lesson that it is okay to take a life to emphasis the sanctity of another life. Collective conscience of the community demands and deserves justice but not at the cost of its own moral degradation.