Home Article Critical Analysis of Capital Punishment in India

Critical Analysis of Capital Punishment in India

August 27, 2020

273

capital punishment — source: https://theappeal.org/

Table of Contents

Introduction

“For centuries the death penalties, often accompanied by the barbarous refinements, has been trying to hold crime in check; yet crime persists”

—Albert Camus

The human instinct is the root cause of all boon & bane to our civilization- be it a peaceful meditated mind or a hazardous criminal intention. Crime, a conjugation of actus reus (act) & mens rea (guilty mind), allures penalty in various forms, of which capital punishment is considered the apex. [Capital punishment, also called the death penalty, is the execution of an offender after conviction by a court of law for a criminal. ^[[1]].

There are examples of different forms of capital punishment like execution by [hanging (e.g.-Japan), shooting (e.g.-North Korea), beheading (e.g.-Saudi Arabia), electrocution (e.g.-Philippines), lethal injection (e.g.-Vietnam)] ^[[2]], etc. In India, we follow the rules of execution of an offender to be ‘hanged by the neck till he is dead’ under Section 354(5) of Code of Criminal Procedure, 1973.

Historical Background

[Capital punishment for murder, treason, arson & rape was widely employed in ancient Greece under the laws of Draco (7th century BCE)] ^[[3]]. The history of Rome is also a burning example of this barbaric act. The transition from guillotine, forceful & organized man-wild animal conflict, crucifying to modern-day hanging; the barbarism is upheld by this modern-day society too.

In colonial India, death was prescribed as one of the punishments under the Indian Penal Code, 1860 (IPC) which continues to date of this 21^st century. Hanging of Nathuram Godse is the first example of this uncivilized act of independent India & with the latest example of execution of the 4 convicts in 2020 related to the Nirbhaya case.

Provisions of Capital Punishment under Indian Legislation

Capital Offences in IPC

Sl. No.	Section Number	Description
1	121	Waging, or attempting to wage war, or abetting waging of war, against the Government of India
2	132	Abetment of mutiny, if mutiny is committed in consequence thereof
3	194	Giving or fabricating false evidence with intent to procure conviction of a capital offense If an innocent person be thereby convicted & executed
4	195A	Threatening any person to give false evidence
5	302	Murder
6	303	Punishment for murder by a life convict
7	305	Abetment of suicide of child or insane person
8	307	Attempts by life convicts
9	364A	Kidnapping for ransom, etc.
10	376A	Punishment for causing death or resulting in a persistent vegetative state of the victim
11	376E	Punishment for repeat offenders
12	396	Dacoity with murder

Capital Offences in other laws

Sl. No.	Section Number	Description
1	Section 3(1)(i)	The Andhra Pradesh Control of Organised Crime Act, 2001
2	Sections 34, 37, and 38(1)	The Air Force Act, 1950
3	Sections 21, 24, 25(1)(a), and 55	The Assam Rifles Act, 2006
4	Sections 34, 37, and 38(1)	The Army Act, 1950
5	Section 3	The Geneva Conventions Act, 1960
6	Section 65A(2)	The Bombay Prohibition (Gujarat Amendment) Act, 2009
7	Section 5	The Defence of India Act, 1971
8	Section 4(1)	The Commission of Sati (Prevention) Act, 1987
9	Sections 17 and 49	The Coast Guard Act, 1978
10	Sections 14, 17, 18(1)(a), and 46	The Border Security Force Act, 1968
11	Section 3 (b)	The Explosive Substances Act, 1908
12	Sections 16, 19, 20(1)(a), and 49	The Indo-Tibetan Border Police Force Act, 1992
13	Section 3(1)(i)	The Karnataka Control of Organised Crime Act, 2000
14	Section 3(1)(i)	The Maharashtra Control of Organised Crime Act, 1999
15	Section 31A(1)	The Narcotics Drugs and Psychotropic Substances Act, 1985
16	Section 27(3)	The Arms Act, 1959 (repealed)
17	Sections 34, 35, 36, 37, 38, 39, 43, 44, 49(2)(a), 56(2), and 59	The Navy Act, 1957
18	Section 15(4)	The Petroleum and Minerals Pipelines (Acquisition of rights of user in Land) Act, 1962
19	Sections 16, 19, 20(1)(a), and 49	The Sashastra Seema Bal Act, 2007
20	Sections 10(b)(i) & 16(1)(a)	The Unlawful Activities Prevention Act, 1967
21	Section 3(2)(i)	The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
22	Section 3(1)(i)	The Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002

Apart from these laws, there are landmark judgments known as precedents regarding the death penalty. Our apex court upheld the death penalty based on [‘R-O-R Test’ that is rarest of the rare test] [[4]]. Though, there is an option to a convict to change the existing death sentence into any of the 5 (Pardon, Commutation, Remission, Respite, Reprieve) other forms by requesting the President of India under the power of Article 72 of the Constitution of India.

Global Scenario on Capital Punishment

Globally, out of 195 UN nations, 55 countries retain capital punishment, 104 countries have abolished de jure for all crimes, 8 countries have abolished for ordinary crimes while retaining it for special circumstances & 28 countries are abolitionist in practice. Out of 62 states, those who are recognized in very high Human Development Index (HDI), 12 countries (e.g.-Singapore, USA, etc.) are still in the practice of capital punishment & rest of the high HDI countries abolish this practice.^[[5]]

Abolitionist countries: 104

Abolitionist-in-practice countries except those committed under exceptional circumstances: 8

Abolitionist-in-practice countries (have not executed anyone during the last decade or more): 28

Retentionist countries: 55

The International Covenant on Civil and Political Rights (ICCPR), is one of the key documents discussing the imposition of the death penalty in international human right laws, does not abolish the use of the death penalty, but Article 6 contains guarantees regarding the right to life and contains important safeguards to be followed by signatories who retain the death penalty.

Law Commission Report on Death Penalty

The Law Commission in its 262^nd Report ^[[6]] (August 2015) recommended that the death penalty should be abolished for all crimes except terrorism & waging war against the Government. Though, there is no concrete jurisprudential theory reference is given in favor of this discriminatory recommendation, but on the verge of the alarmingly increasing terrorism globally, it is a dreaded threat to the national security & the sovereignty of a nation.

The commission also suggested various reforms to turn down the crime rates viz. police reforms, witness protection scheme, victim compensation scheme, etc.

Arguments in Favour & Against Capital Punishment

Arguments in Favour of the Death Penalty

Deterrence effect
Justice to the victim
Saving of tax payer’s money
No surety that rehab can change the offender
Dangerous to live for society

Arguments against Death Penalty

State-sanctioned killing is a moral wrong
The death penalty is a financial burden upon the State
Wrongful conviction is irreversible
It is an act of revenge in favor of the victim’s family
Criminals mostly fear of getting caught than punishment

Analytical View

People, who are prejudiced to the death penalty, always point out the ‘Deterrence Effect’ as the most important factor of the death penalty. But, researchers have serious doubts about this theory. [In a recent study in the USA by Amnesty International, it is found that the states with the death penalty have a higher murder rate] ^[[7]].

Having a long history of capital punishment, it is highly likely to conclude that the death penalty has barely a dreaded effect on crime.

Many people say ‘Justice to the Victim’. The father of the nation Mahatma Gandhi once said ‘An eye for an eye makes the whole world blind’. There’s no doubt that an offender should be punished for his Karma by the effective judicial mechanism, but killing by the state is a serious moral foul. Except for some very rare occasions, crime is also the fiasco of Government & its law enforcement agencies.
People argue that the death penalty saves taxpayer’s money. This argument has barely any logical foundation. [An estimated rough projection of California Commission of Fair Administration that the annual cost of giving death penalty is around $232 million which is more than 20 times the annual cost of giving life imprisonment which is around $11 million] ^[[8]]. [Various studies exhibit that the cost of the death penalty is much higher than any other punishments.] ^[[9]].
A wrongful conviction is irreversible. Though, our judicial system is no doubt a pioneer in giving the right to the offender to seek justice at any point of reasonable doubt, still there are chances of faulty convictions. After all, we, human beings are directed by human instinct. A landmark case regarding this issue is the execution of Dhananjay Chatterjee ^[[10]] which possesses [numerous doubts about his conviction] ^[[11]] but those doubts are of no use as he is executed. The execution of a person, having reasonable doubts, is the biggest slap on the Principle of Natural Justice.
[Most of the time, the crime of which death penalty is a punishment, is followed by murder to wash out the evidence(s) & witness(s)] ^[[12]] which is a huge concern not only for the victim but also for the whole society.
Definitely, there is no surety that giving punishment other than death will change the offender but there are thousands of examples in the past where the offender committed crime & then surrendered & was properly rehabbed by the rehabilitation mechanism towards a normal life. So, an outright repudiation of this possibility is no prudent man’s decision. We have to develop both of our rehabilitation & crime prevention mechanisms on par.
Though imprisonment, fine, etc. are effective options as punishment, but we have to emphasize on the rate of conviction. Most of the time, an offender is not getting caught after committing the crime due to ineffective law enforcement machinery. An offender apprehends more to be getting caught than to be convicted & if he is caught, then it is in his mind that nothing very grave will happen to him. In terms of punishment, our century-old IPC is not up to date to withhold the modern crimes on multiple-aspect & that’s why an extensive amendment in IPC is strongly needed.

Reforms

We expeditiously need reforms in order to decrease the slope of criminal activity drastically. Some of the exigent reforms are-

Police reforms:

There are numerous cases where unlawful police activity is raising the offender. To change this practice, we need to consider the behind scenes.[The the sanctioned strength of the police across states is around 2.8 million but only 1.9 million police officers are employed, which is a 30% vacancy (2017 data), which means a huge burden of work on each police personal] ^[[13]^]. [According to recent studies, police personnel is working for nearly 14 hours a day(average)] ^[[14]^]. With this kind of burden & with underpaying salary schemes, no society can expect an effective & neutral police system. We highly need reforms in the police because police are the ‘first line of law enforcement’ of this nation.

Judicial reforms: ‘Justice delayed is justice denied’.

This maxim perfectly explains our sloth justice system. [In India, there are over 3crore cases pending as of 2017]^[[15]]out of which 86% are in subordinate courts.

Number of pending cases in Supreme Court (in 10³)

Number of pending cases in High Courts (in 10⁵)

Number of pending cases in Subordinate Courts (in 10⁷)

[Nationally, India spends 0.08% of its budget on Judiciary as of 2019] ^[[16]^]. [There are over 22000 vacancies of judges in India with High Courts & Subordinate Courts combined as of 2017] ^[[17]^]. If the required strength of judges is not fulfilled, how can we even expect a reformation in Judiciary? We need a swift appointment of judges immediately before a reformation measurement.

Political reforms:

In terms of political reforms, we can consider 5 key elements suggested by Chanakya–

1. Highest possible individual rights
2. Institutional autonomy
3. Vibrant federalism
4. Transparency in electoral finance
5. Reforms in political parties

Criminal reforms:

We should not look at the offender with high eyebrows. Most of the offenders commit an offense under the heat of passion or intoxication whereas very few are habitual offenders. We should have empathy for them & must develop rehabilitation centers so that they can return back to mainstream society. Offenses like Sedition must be abrogated. Nowadays, Section 124A IPC, which is very vague in its definition, is used as a basic rule of crime & that is what it shouldn’t be. It should be used more cautiously only on the occasions of a threat to national security. We should more liberalize our Bail (Chapter-XXXIII of Code of Criminal Procedure, 1973) provisions, especially to poor economic class people. A Criminal Justice Reform Committee with a mandate to evolve criminal justice policy should be formed for this exercise.

Dynamic punishment Policy:

IPC, which is the primary source that deals with crime & punishment, is century old. Though our last amendment was in 2018, still the punishments for the crimes are too obsolete & stagnant. We need a dynamic punishment policy depending on crimes. The juvenile of the Nirbhaya case is the perfect example of that. As he was a juvenile during the commission of the crime so he is saved from the dreaded punishment that the other offenders received. The point being here is only the dynamic punishment policy, so that we can take measures on case to case basis with the continuation of the existing policies.

Jail reforms:

Probably India has the world’s one of the most overcrowded jail with negligible creative activity with a very poor lifestyle. Social activists, from time to time, raised their concerns over it, but of no use. Criminologists point out many times, an offender with a small degree of crime becomes a jail-mate with a serious offender due to lack of living space & surveillance & this causes the rising of another serious offender. India’s first woman IPS officer Kiran Bedi took tremendous steps towards Jail reforms to give the offenders a better quality lifestyle, which pays her off with the Raman Magsaysay Award & UN recognition. Now, Tihar Jail in Delhi is one of the most productive jails in the world.

Conclusion

There are ample reasons as discussed earlier, why the death penalty should be abolished & an effective reformation system should be adopted. Indian Constitution gives us Article 21 i.e. Right to Life, expect to the cases of passive euthanasia. A State doesn’t give life to a person, so it doesn’t have the right to take it, no matter how evil the offense is committed by the offender. We have Section 73 of IPC i.e. Solitary Confinement, which could be a very good alternative to the death penalty.

Developed countries with high HDI rank abolished capital punishment on humanitarian grounds. [Even, our former President Dr. APJ Abdul Kalam was in favor of the abolition of capital punishment]^[[18]]. If the State is doing the same thing which an individual has done & he is facing the death penalty for that, then how the State is different from the offender? And for the same reason, should the State also be hanged? The State should be a protector of every citizen, not the executor. We must reform an offender through a systematic process rather than executing him. Our target should be to prevail upon the evil souls by the heavenly propensity.

“If we believe that murder is wrong & not admissible in our society, then it has to be wrong for everyone, not just individuals but Governments as well”

– Helen Prejean

Author(s):

Souvanik Mahapatra | Law Centre-1, Faculty of Law, University of Delhi

Sayantani Bag | Regent Education & Research Foundation, MAKAUT

References

[[1]] https://www.britannica.com/topic/capital-punishment

[[2]] https://en.m.wikipedia.org/wiki/List_of_methods_of_capital_punishment

[[3]]https://www.britannica.com/topic/capital-punishment

[[4] ] Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947; Rajendra Prasad v State of Uttar Pradesh 1979 AIR 916; Bachan Singh vs. State of Punjab (1980) (2 SCC 684)

[[5]]https://en.m.wikipedia.org/wiki/Capital_punishment_by_country

[[6]]https://drive.google.com/file/d/1y85dka2E_D2UMUz5IleU4FOd_XBkOWCF/view?usp=drivesdk

[[7]] https://www.amnestyusa.org/issues/death-penalty/death-penalty-facts/the-death-penalty-and-deterrence/

[[8]]https://www.amnestyusa.org/issues/death-penalty/death-penalty-facts/death-penalty-cost/

[[9]]https://www.reddit.com/r/abolish/comments/39xodb/cost_of_death_penalty_in_california/

[[10]] Dhananjoy Chatterjee vs State Of W.B, 1994 SCC (2) 220

[[11]]http://www.millenniumpost.in/dhananjoy-chatterjee–an-innocent-person-judicially-killed-by-the-state-161059

[[12]]https://juniperpublishers.com/jfsci/pdf/JFSCI.MS.ID.555804.pdf

[[13]]https://www.livemint.com/news/india/india-s-police-force-among-the-world-s-weakest-1560925355383.html

[[14]] https://www.bloombergquint.com/law-and-policy/indian-police-work-14-hour-workdays-get-few-weekly-offs#:~:text=About%2024%20percent%20police%20personnel,14%20hours%20long%2C%20on%20average.

[15] https://www.prsindia.org/policy/vital-stats/pendency-cases-judiciary

[16] https://www.barandbench.com/news/india-justice-report-on-the-judiciary-average-case-pendency-in-subordinate-courts-is-5-years