Capital punishment: The Schrodinger’s paradox of the Indian judicial system

By Nila Nair

Returning violence for violence multiples violence, adding deeper darkness to a night already devoid of stars”- Martin Luther King.

Austrian physicist Erwin Schrodinger (1935) designed an experiment to prove quantum mechanics in which a cat trapped in a box of poisonous material was to be considered both ‘dead’ and ‘alive’ at the same time. Death penalty and the question of ‘to kill’ or ‘not to kill’ can thus be considered as the Schrodinger’s paradox of Indian judiciary as India still holds on to this retributive form of punishment though for the rarest of the rare cases. The Code of Criminal Procedure (1973) directs the person to be hanged by the neck until dead. More than 100 people have been sentenced to death (not executed) in India since 2001 according to Amnesty International. Tracing it back to the British who even hanged children for petty thefts during the 19th century and to Maharaja Nanda Kumar’s hanging during the British Raj in India, the incessant conundrum of ‘hangman’ has established its way past the country to the Criminal law amendment act of 2013.

The society has moved on from the deterrent and retributive (an eye for an eye, a tooth for a tooth) theories of punishment to the reformative theory which promotes the most humane ways of reforming the legal offender. The idea being that no one is born a criminal and punishment should be aimed at educating and training them to be law-abiding citizens. The UN in their Universal Declaration of human rights has already encouraged the world to put an end to this and has declared 10th October as World Day against the death penalty. However, in 2007, India voted against a UN moratorium on banning capital punishment.

Philosopher Immanuel Kant regards the practice to be rationally required by the law of retribution. That is, we must execute the murderers because they deserve to die. In India, ‘Waging War against the country’ (Section 121 of IPC 1860), Abetting mutiny actually committed (Sec. 132); Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194); Murder (Sec. 302) etc., are considered to be the ultimate form of crime for which there should be no other alternative than death. In addition to this, the Army Act, the Navy Act and Air force Act also provide for the execution of the death sentence. The question here is 'what else can be done with such criminals'. But are our judiciary and legal system capable of being immune to errors? Is our system of interrogation unbiased? The answer will have to be rendered in negative. Kant’s conclusion is, therefore, regarded against moral principles of the 21st century because no innocent should be punished even if a thousand criminals walk free. In the landmark case of Bachan Singh v. State of Punjab, Justice Bhagwati remarked that “death penalty has a certain class complexion in as much as it is largely the poor and downtrodden who are the victims of extreme punishment…this circumstance also adds to the arbitrary and capricious nature of death penalty and renders it unconstitutional”. The statement itself confirms a wild violation of Article 14 (Right to equality and equal protection of the law) and Article 21 (Right to life) of the Indian constitution. But, as long as the death penalty is awarded using a procedure established by law, it cannot be deemed unconstitutional (Jag Mohan Singh vs. State of UP 1973).

In conclusion, killing a person is an irreversible execution. The flaws in the justice system should not interfere with an innocent’s life. There are not many studies or statistical evidence that confirms the success of deterrence to determine whether crime rates have reduced by implementing capital punishment. The death penalty has been induced in the case of rape in India since 2013 through the Criminal law amendment act. Still, even today, the number of rape cases and its brutality increased in multitudes. If the death penalty is indeed a deterrent to such heinous crimes, why has it only been increasing?  Even the British who brought this practice to India ceased executing people by 1964. Nevertheless, the perpetrator of the highest crime cannot be pardoned easily and it calls for better systems and increased faith in our institutions.

Is capital punishment right or wrong? Is it constitutional or ultra vires? Is it dispensable or indispensable? Like Schrodinger’s paradox, the answer would be ‘it’s everything at the same time’ here and now. These questions still arise in the never-ending labyrinth of law and social justice. Consequently, it is high time that the enigma engulfing the said dispute be addressed once and for all.

Sources: 

  1. Bachan Singh v. State of Punjab (Supreme Court of India 1997).

  2. Drishti. (n.d.). Retrieved from https://www.drishtiias.com/daily-updates/daily-news-editorials/death-penalty-2

  3. Koestler, A. (1997). Reflections on hanging.

  4. United Nations Human Rights, Office of the High Commissioner. (n.d.). Retrieved from https://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx