Capital Punishment: What It Is, and Where India Keeps It

In one line

Capital punishment is the killing of an offender by the state as a punishment for an offence, and Module II is about the problems that follow from a state doing that.

In the wording a student can write in an exam: capital punishment, or the death penalty, is the lawful infliction of death on a person convicted of an offence, by the authority of the state and after a judicial determination of guilt. It is the only punishment that cannot be undone, the only one whose administration requires the state to do the very thing its criminal law forbids, and the only one whose imposition Indian law surrounds with a separate procedure of confirmation, special reasons and mercy.

Why the module is called "The Problems of Capital Punishment"

Because MU's own printed syllabus says so. She does not print "Capital Punishment"; she prints "The Problems of Capital Punishment", and the word tells the candidate what kind of answer she wants. A description of the law is the setting; the problems are the subject.

There are six problems and this module treats each of them. Naming them at the start of an answer is worth doing.

The problem of justification. Is a state entitled to kill?

The problem of standards. How is a court to choose between death and life imprisonment when the statute says only "special reasons"?

The problem of consistency. Two courts on the same facts reach different answers, which MU quotes in terms on two papers.

The problem of error. A wrong conviction cannot be corrected after execution.

The problem of delay. A sentence passed and not executed for years produces a suffering nobody imposed.

The problem of mercy. A judicial sentence is undone by an executive decision on grounds no court fixed.

The features that make it different

Six things distinguish the death penalty from every other punishment, and a student who lists them has explained why the module exists.

It is irrevocable. Every other sentence can be shortened, remitted, reversed on appeal or compensated for after the event.

It cannot be graded. Imprisonment comes in lengths and fines in amounts. Death is a single quantity, so the whole of the sentencing judgment collapses into a yes or a no.

It ends the offender rather than the offending. No reformative or expiatory purpose is possible, and only retribution and incapacitation can even be argued for.

It requires the state to kill. The state has to do deliberately, in cold blood and after preparation, exactly what it punishes in the offender. Whether that is a defect or merely an irony is argued in [The Demerits of the Death Penalty].

It falls on a very particular population. In every retentionist country the people on death row are disproportionately poor and disproportionately without competent representation.