Hanging on theories

Data published by the government over the years belie the claim that the death sentence deters murder more than life imprisonment does.

In Shashi Nayar vs Union of India (1992), the last reported challenge to the death penalty, it was argued that capital punishment does not serve any social purpose, and in the absence of any study, the barbaric penalty of death should not be awarded to any person as it has no deterrent effect. Five Supreme Court judges held that this argument had been considered and rejected in Jagmohan Singh (1973) and in Bachan Singh (1980), and that since they agreed with those judgments, reconsideration in the case was unnecessary. The court relied upon the Law Commissions 35th Report (1967) and quoted its recommendations: Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.

The petitioner argued that this report was very dated, that conditions in India had changed considerably since 1967, and that as there was no empirical study before the court to show that the situation which prevailed in 1967 is still continuing, the court should reconsider the matter. Rejecting this argument, the court said:

We do not find any merit in this submission. The death penalty has a deterrent effect and it does serve a social purpose. Further, a judicial notice can be taken of the fact that the law and order situation in the country has not only not improved since 1967 but has deteriorated over the years and is fast worsening today. The present is, therefore, the most inopportune time to reconsider the law on the subject.

Contrary to popular belief, and even Supreme Court dicta, the murder rate has declined consistently in the past 20 years. It is now at its lowest levels since 1970. There has also been a drastic decline in the award of capital punishment since 1980. The corresponding decline in the rates of murder and execution raises questions about the justification for the use of capital punishment and the validity of the claim that it deters murder more than life imprisonment does.

Three principles must inform any discussion on the justifiability of capital punishment. First, if two types of punishment are available for a crime, both serving the same purpose with no additional benefits, the less harsh punishment must be preferred, from a humane, moral and also utilitarian perspective. Since life imprisonment is always prescribed as an alternative to the death penalty, the latter can be justified only if it is shown to have so much more social utility than life imprisonment as to vindicate killing a person. Second, killing human beings needs strong justification, and the onus lies on those defending capital punishment. Third, arguments justifying the death sentence must be based on data and objective analyses rather than on subjective opinions and impressions.

Two claims

The deterrent theory of punishment makes two claims: (i) that crime is deterred by severe punishment (which we shall hereafter call the positive claim) and (ii) its corollary, that the absence of severe punishment encourages crime (which we shall hereafter call the negative claim). The deterrent theory of punishment is one of the main planks in defence of capital punishment. Its adherents argue that capital punishment deters murder more than life imprisonment does and that it should, therefore, be retained (the positive claim). Conversely, they also claim that diminishing the use of capital punishment reduces the deterrence effect and causes murder rates to rise ceteris paribus (the negative claim). Both claims are amenable to proof, and it is therefore necessary to examine each of them individually in the light of available evidence.

To date, no Indian study has substantiated the positive claim, which is largely based on individual impressions and intuitive reasoning. However, Mohan Kumaramangalams study, referred to in Justice P.N. Bhagwatis dissenting opinion in Bachan Singh, has adduced evidence contradicting the positive claim that the death penalty deters murder more than life imprisonment does. The study shows that in the former state of Travancore and Cochin, a total of 962 murders were committed between 1945 and 1950 when a moratorium on the death penalty was in force, whereas a total of 967 murders were committed between 1951 and 1956 when the moratorium had been lifted. The study is particularly important because it shows that even when the death sentence was commonly employed as the main punishment for murder, it had no additional deterrent effect on the murder rate. It can, therefore, be inferred that if the heavy use of the death sentence in the pre- Bachan Singh era did not deter murder, the use of the death penalty at a fraction of its former frequency today cannot have any deterrent effect. National crime records confirm this inference.

As for the negative claim that reduction in the number of executions causes the murder rate to increase, there are no Indian studies supporting it, although there is empirical data on the two issues it raises, namely the number of executions and the murder rate.

Special reasons

The Code of Criminal Procedure (CrPC) of 1973 and the Bachan Singh judgment drastically reduced the number of death penalties. Under Section 367(5) of the CrPC of 1898, the normal punishment for murder was the death sentence, and in exceptional cases, if the judge awarded life imprisonment, he had to record reasons for not passing the death sentence. The CrPC of 1973 expunged Section 367(5) and introduced Section 354(3) requiring the judge to give special reasons for imposing a death sentence. This effectively replaced the presumption in favour of a death sentence with one against it. The effect of these provisions on the law was first articulated in Ediga Anamma (1974) by Justice V.R. Krishna Iyer, but as Prof. A.R. Blackshields study Capital Punishment in India (1979) notes, the Ediga case had little impact on the Supreme Courts sentencing practices. It was only in Bachan Singh that the law was crystallised through the Constitution Bench judgment, which held that life sentence was the norm and the death penalty an exception that could be awarded only in the most extreme and rarest of rare cases.

Bachan Singhs impact on death sentences was so enormous as to completely change the death penalty landscape and constitute a watershed in the history of criminal law in India. The death sentence, formerly awarded in almost all murder cases, was now reserved for that exceptional and extreme category which was measured in fractions rather than in integers. Between 1974 and 1978, there were 85,000 murders and 25 executions, that is, there were 34 executions for one lakh murders, as reported in Kehar Singh (1989). Since 1980, there have been 10,11,703 murders and about 83 executions at the rate of 8.2 executions for one lakh murders ( Crime in India). Furthermore, many death penalties are commuted by the Governor or the President, thereby reducing the number of persons executed to a minuscule percentage. Since 1995, there have been 5,94,009 murders and 25 executions at the rate of 4.2 executions for every one lakh murders (0.0042 per cent). Since 1999, there have been 4,42,678 murders and one execution (0.0002 per cent), and since 2005 there have been 2,30,293 murders and no executions (0 per cent).

As per the negative claim made by the supporters of the death penalty, such a drastic diminution in the use of the death penalty to a fraction of its former levels would signify a quantum reduction in deterrence and therefore cause a quantum increase in the murder rate. It is, therefore, necessary to study the impact of this change in the sentencing policy on murder rates.

In 1952, the Ministry of Home Affairs first started reporting trends in and rates of murder and other crimes through its annual survey, Crime in India. The scepticism attached to police crime statistics because of under-reporting, and so on, does not apply to murder cases. Unlike other crimes, murder is more difficult to under-report, cover up, or disguise as corpses cannot be disposed of, even by the police, without proper documentation about the cause of death.

According to successive editions of Crime in India, the national murder rate (number of murders for a lakh of people) was 2.81 in 1952. By 1959, it had reached 3, and fluctuated between 2.5 and 3 until 1978. After 1978, the murder rate increased steadily until 1992, when it reached 4.6. From 1992, the murder rate has been in decline. Since 2007, the murder rate has been 2.8 (Figure 1).

Contrary to the negative claim made by supporters of capital punishment, the decline in death sentencing has not caused an increase in murder rates. Far from it. The murder rate has, in fact, declined. The murder rate today is what it was in 1952, 1956 and 1969. Post-1970, it has never been lower. It has been declining for 20 straight years since 1992. These figures demolish any claim about the supposed deterrent effect of capital punishment and thereby refute one of the main arguments in support of the death penalty.

In other countries, when confronted with such evidence, supporters of capital punishment have argued that the decline in murder rates has been much too transient a flash in the pan to question the deterrent effect of the death sentence. However, this argument fails in the Indian context. The murder rate increased over 13 years from 1978 to 1991 at a rate of 0.12 per cent and decreased over 20 years from 1992 to 2011 at the rate of 0.09 per cent. Clearly, the decline in the murder rate in India has been neither sudden nor short-lived. On the contrary, it has been continuous and steady over a period of 20 years hardly a flash in the pan.

Economic and sociological factors

Supporters of capital punishment also argue that the decline in murder rates may be a freak occurrence or because of a combination of a set of variables. They attribute such decline in murder rates elsewhere to changes in various economic and sociological factors: standard of living, per capita income, literacy, infant mortality, death rate, and so on.

In the Indian context, these arguments do not stand scrutiny. The economic and sociological factors mentioned above have been constants and not variables. From 1952 to date, the human development index, gross domestic product (GDP), per capita income, life expectancy and percentage of urban population have been increasing steadily without aberration. Similarly, death rate, infant mortality, birth rate, and the percentage of the population below the poverty line have been decreasing steadily over the same period (Figures 2, 3, 4 and 5). These show no correlation to the murder rate, which increased from 1978 to 1992 and then declined thereafter.

However, the one variable that has consistently and inversely followed the trend in murder rates is the sex ratio (number of females per 1,000 males). The sex ratio was 941 in 1961, and it declined steadily until 1991 to reach 927. It has increased since then and is now at about 940, more or less the same level as in 1961 (Figure 1). The inverse correlation between murder rates and the sex ratio was first noticed in Philip Odenburgs 1992 study (Sex Ratio, Son Preference and Violence in India) focussing on districts in Uttar Pradesh. Odenburgs findings were confirmed and extended by Jean Dreze and Reetika Kheras study Crime, Gender, and Society in India (2000), which noted that there was a robust negative correlation between the sex ratio and murder rates in the whole country: the higher the sex ratio the lower the murder rate, and vice versa. The explanations adduced by these scholars indicate that the sex ratio and the murder rate are not randomly correlated, and that so long as the sex ratio improves, murder rates are likely to decline until they reach an optimum level. The presence of a consistent correlation in India between the sex ratio and murder rates, and the absence of any correlation between death penalties and murder rates undermine the positive and negative claims made by the supporters of capital punishment.

The absence of any data or empirical evidence supporting the positive claim that the death penalty has a deterrent effect on murder is defended with the argument that it is not possible to show statistically how many people did not commit murder because of the threat of capital punishment. This is no doubt true, but the claim can be tested in other ways. If indeed the threat of the death sentence deters more people from committing murder than the threat of life imprisonment, then the type of person who refrained from committing murder earlier when the death sentence was the standard punishment for murder would commit murder more readily when life imprisonment became the standard punishment and the death penalty fell into relative disuse.

Consequently, the murder rate would rise because of the additional murders committed by these people who were formerly deterred by the threat of capital punishment but are not so deterred by the threat of life imprisonment. As we have seen, this is another form of the negative claim that is contradicted by the Indian data, which show that with the decline in the death sentence the murder rate did not rise in fact, it fell. The absence of any increase in the murder rate with the drastic reduction in executions of death sentences shows that people are not deterred more by capital punishment than by life imprisonment.

The main ground on which capital punishment is defended is that the death sentence is a greater deterrent to murder than life imprisonment is. The data published over the years by the government belie this claim. The deterrence of the death sentence has been drastically reduced by its infrequent use, and yet not only has the murder rate not increased, it has declined. This significant statistical fact falsifies the central thesis of the deterrent theory of capital punishment.

With life imprisonment extending to the convicts full natural life at the option of the state, and death sentence serving no additional purpose, it is time India reconsidered its stand on a practice that has been abolished by 66 per cent of the worlds countries.