It is predicted by many that the societies with greater differentiation and specialization are less prone to executions. Contrary to this assumption, it has been shown that societies with greater social differentiation and structural hierarchy are more likely to embrace death penalty. Social systems with more hierarchical order would have greater brutal punitive culture and repressive legal mechanism. The celebrated goals of the Constitution such as Liberty, Equality, and Fraternity can only be realized through constant and continuous commitment to the principles of Constitutional morality by the civil society and the State institutions. Capital punishment does not hold any space in constitutionally valid penological goals since the spirit of the constitution does not recognize ―an eye for an eye, a tooth for tooth.
The origin of everything in the human society is collided with bloodshed and vengeance. The liberal, constitutional and democratic order of the day that can be seen in the USA, France and England had its origin in blood bath. The regicides of the Charles Stuart and Louis Capet, the violent killings of aristocrats, the bloodletting terror that followed, marked the establishment of sovereignty and the incorporation of the divine rights of the king. Here, the punishment was directly issued at the head of the state. Hence, the capital punishment delivered the answer to the capital crimes. The civil society has acknowledged the fact that there had been distinctions in treating different deaths contrastingly. The guillotine, which put forward the principle of equality on the institution of capital punishment, had been used to manifest common death to all. This machine in fact does not detect the status or privilege rank by birth. Therefore, it treated powerful, powerless, commons and aristocrats equally. The guillotine invented the system of equality in raising the commons over the aristocrats. De-capitation had been the punishment for the delinquent aristocrats (Norton, 1999).
Deterrence has often been identified as one of the oldest theories of punishment which is highly related to and closely associated with the utilitarian approach. This view recognizes the situation where the physical and material security maximization is being obstructed by high crime rates. Therefore, it lowers welfare. Imprisonment, rehabilitation, and confinement of the culprits are the various methods by which state can maximize welfare and help the victim (Rajan, 1998). However, the utilitarian approach on capital punishment is often contested and debated at large. The deterrence argument has the tendency to seek private revenge which is embedded in the retribution aspect (Balagopal, 1998). In some cases, an innocent person would have to sacrifice his/her life for the interest of the majority. Also, the concerned authorities would take this opportunity to make the accused an apt example for preventing crimes. This is the classic case in favour of capital punishment (Rajan, 1998).
When the justice is done on behalf of the society in a public justice system, the question of personalized conception of justice is no more valid. The craving for the retribution has been directly or indirectly stood for the cause of punitive deterrence which has been short sighted and against the modern jurisprudence. Satisfaction of the victim has got much attention from the judiciary itself. Many judges have already used and been using the same logic to legitimize their actions of imposing harsh punishments including death penalty to the accused for satisfying the victim. Such logic and arguments have no place in the modern jurisprudence. Modern law has explicitly taken its stand against private revenge (Balagopal, 1998).
Deterring the future crimes and reforming the offenders have been the core objectives of the punishment. However, death penalty has, historically and factually, failed to achieve the deterrent effect. Reformation of the offenders cannot be achieved through death penalty as it does not even give a space to reform. The death row prisoners have often been kept in solitary confinement. Although the Supreme Court had directed that death row prisoners should only be separated from the inmates once the punishment is executable, but they were confined in the cells alone ( Surendranath, 2017). Prisoners have the view of gallows which often acts as the consistent reminder of fate. There has been a practice in some of the Indian jails that the convicts will be taken by the officers to see the gallows before heading to their cells.
Balagopal, K. (1998). Of capital and other punishments. Economic and Political Weekly, 33, 2438-2447.
Norton, A. (1999). After the terror: Mortality, equality and fraternity. In Sarat, A. (Ed). The Killing state: capital punishment in law, politics, and culture. New York: Oxford University Press.
Surendranath, A. (2017). Understanding the death penalty in India: The challenges and potential of empirical research.
Rajan, N. (1998). Is there an ethical basis for capital punishment? Economic and Political Weekly, 33, 701-704.
Muhammed Jahfer graduated from Tata Institute of Social Sciences, Tuljapur Campus. I have strong interests in researching on human rights and communal harmony.