death penalty
source: https://www.miltonkeynes.co.uk/

Execution of convicts may seem a hefty step by the state but it does not ensure deterrence of further crimes. Theories dictating the death penalty’s ability to decrease crime rate and shape crimeless society is losing its credibility which is evident from NCRB report highlighting an increase in cases despite a spike in the number of death sentence granted, incidents of rape and murders have increased drastically since 2018[1].

Introduction

Capital Punishment also is known as a death penalty, execution of an offender convicted of a criminal offence by a court of law. Capital Punishment is the highest form of punishment in the criminal justice system in India. It is charged upon those convictions of most heinous, grievous, and degrading crimes against humanity. It is to be given in “rarest of the rare” cases only after a detailed protracted trial.

Brief History on the Death Penalty

The death penalty existed in colonial India as various freedom fighters were given a death sentence and hanged after a stipulated period of time. According to the National Archives of  India[2]  more than 1000 people were hanged during British India. In 1931, there were debates about the abolishment of the death penalty in the British Legislative Assembly but the motion was dismissed. Further, in 1946, the legislative assembly refused to abolish capital punishment. After independence, India retained several laws of British India and after few amendments in Code of Criminal Procedure (Cr.pc) section 367(5), 354(3), 235(2) prescribed a provisional manner in awarding death sentence.

Execution methods followed in India

  • The death penalty in India is carried out by hanging the prisoner who is on their death row. The Apex court recommended giving the death penalty in “rarest of the rare cases”.[3] CRPC specifies hanging as a method of execution.
  • Death by Shooting is executed under the Army Act, Navy Act, and the Air Force Act.

Crimes attracting Death Penalty

Capital offences described under (India Penal code):- Terrorism related offences, Murder, Rape not resulting in death, Rape victim left on persistent Vegetative stage, Drug Trafficking, Kidnapping resulting in death, Treason, Military offences and all other offences not resulting in death. All these offences are listed under IPC in various sections. These are serious and destructive offences that pose a serious threat to society.

Exemption from the death penalty includes Minors – Below 18 years of age with this India is in Liu with Convention on Rights of a child,[4] pregnant women and person of unsound mind.

Constitution and Capital Punishment

Article 21 of the Constitution ensures Protection of Life and Personal Liberty Except according to the procedure established by law. This legally means if there is a fair, just and reasonable procedure established by a valid law, deprivation of life is constitutionally permissible. The Supreme Court has held the constitutional validity of Capital punishment.

The convict can file a plea of mercy petition to the Governor of State under Article 161[5] when his death penalty is upheld by the High Court. If the trial is in Supreme Court and Hon’ble court has rejected it and until every legal remedy of a convict is exhausted then the person sentenced can file a final plea for seeking mercy to the President of India under Article 72[6]. The President and Governor are authorized with 5 types of pardoning powers. However, such powers shall be exercised by the Executives only on the Aid and Advice of the Council of Ministers. It is an established fact through the judicial process that such power is subjected to Judicial Review[7].

Procedure Regarding Petitions for Mercy in Death Sentence Cases

In Shatrughan Chauhan vs Union of India[8], the Court recorded Ministry of Home Affairs to consider the following factors while deciding mercy petitions: Personality of the Accused (such as age, sex or mental deficiency) or peculiar circumstances of the case, Cases in which Evidence was questionable yet decided on Conviction, Justification of new inquiry on basis of allotment of fresh evidence, High court Reversing the Acquittal or Increasing the sentence on appeal, Difference of opinion among judges or they mulled for a need for a large bench, Strong evidence in deciding matters related to gang rape and if there is a delay in trial procedure and investigation. Nevertheless, these elements are not subject to any mandatory effect. Apex Court stated judicial clemency could be granted on the ground of inordinate delay even after a mercy petition is rejected.

Judicial Pronouncements

  • The Supreme Court in Jagmohan Singh vs State of Uttar Pradesh[9] case upheld Constitutional validity on the death penalty and also the court took notice of 35th Report of the Law Commission of India which recommended the retention of capital punishment. It was held that Article 14[10], Constitution of India can hardly be invoked in matters of judicial discretion since the exercise of discretion in each case would be peculiar to its facts and circumstances.
  •  In Rajendra Prasad vs State of Uttar Pradesh[11],  the Apex Court stated special reasons for giving the death sentence cannot pertain only to the crime but must account for human rights and the fundamental freedoms given in the Constitution. The reasons must show why a life sentence would not suffice. It was further held that the death sentence abrogates fundamental freedoms guaranteed under Article 19 of the Constitution of India and therefore the exercise of the discretionary power to impose the death sentence must show that such a sentence is a reasonable restriction and in a failure of such would lead to violation of the Constitution.
  • In Bachan Singh vs State of Punjab[12], the Supreme Court Affirmed the Death Penalty should only be given when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. However, the Court also laid down the principle of weighing, aggravating, and mitigating circumstances. Court went ahead and said, “Reasons must show why such a drastic step is justified”. This was a landmark judgment that laid down the notional idea of penalizing death sentence only in the “Rarest of the Rare” case.
  • In Machhi Singh vs State of Punjab[13], the Apex Court laid down five categories where society might mandate judges to an implicit death sentence. These were offences such as murder, the motive behind murder, abhorrent nature of the crime, severity of the crime, and personality of the victim. These points were added to keep a balance between aggravating and mitigation circumstances.
  • In Swamy Shraddananda & Murali Manohar Mishra v. State of Karnataka[14], the Supreme Court noted the principle of “rarest of rare” and factors, in this case, were leading to distorted opinion between the respected judges. These observations made the Court reluctant to confirm the death sentence. However, it was also felt that granting life imprisonment won’t grant justice to the victim such is unacceptable and therefore, the bench stipulated a special category of “fixed-term sentence”. The courts imposed a fixed-term sentence evolved as an alternative to impose a death sentence.

Law Commission’s report on Death Penalty

The 262nd Report of Law Commission of India [15] suggested several Recommendations and made few statements such as following;

  1. Amend in police reforms, witness protection and compensation to the victim must be taken up instantly by the State.
  2. From the past 3 decades, the courts seem to move its judicial power of not imposing the death penalty to signify the right to life under the constitution and circumvent the imposition of the death penalty. This is clearly evident from the above-mentioned cases as the courts tend to change its adequacy of punishment. Commission exceedingly recommended abolishing the death penalty.
  3. There seems to be no rational justification for waging war against India and targeting unarmed citizens. For the commission of these types of barbaric acts which leads to disturbance in public order, safety, and threats to national security, and those proved guilty should be granted with a death sentence and it should be mandatory.
  4. The death penalty should only be awarded in terror-related offences.
  5. The commission articulated complete abolition and irreversible shift of capital punishment.

The clear status quo of granting the death penalty remains unanswered

With human evolution and changing society terrifying crime like rape, murder, and terrorism as increasing and the crime report has been its witness. Well, thou the policing mechanism has constantly tried to safeguard its citizens but still the civil society has led towards a public outrage against those held guilty as the justice system is time-consuming, and the outraging community is been showing less patience and dissents to tolerate the laggy legal process.

Public view in India concerning the death penalty is supportive as they filter the States order of death sentence as an act of vengeance towards the criminal and a form of justice for the victim, well psychological it gives them a sense of retribution. With the growing notional idea of hanging rapists in India within a short stipulated time has deteriorated the principle of the fair trial also such populist sense is against the principle of criminal jurisprudence.

Ironically this constructed support towards the death penalty does not any ensure women’s safety. Capital punishment has been existing in society since time immemorial and with evidence dating back since Roman civilization and astonishingly such inhumane punishment is still significant in democratic nations. The hanging of terrorists like Yakub Menon, Afzal Guru, Ajmal Kasab has clearly not decreased the terror-related disturbances in the country. The arbitrary and secret execution in which the state is increasingly inclined to be grievously unethical and immoral. Hideous and bizarre incidents of terror will continue over the globe irrespective of the fact whether a terrorist is hanged or not. Therefore, awarding the death penalty to terrorists had failed to preclude terror-related crimes.

There are innumerable studies demonstrating the death penalty has no absolute effect on the deterrence of crimes. But with leaning to the fact of India being party to International Covenant on Civil and Political Rights (ICCPR) [16]which ensures safeguards for prisoners who are on death row. Research discloses harrowing insight of death row prisoners facing horrifying acts of police torture, most been a victim of unfair trials, and are made to live under basic hygiene conditions.

These revealing factors only prove the cynical attitude inside the prison where death row convicts are harassed and troubled by jailers. In T.V. Vatheeswaran v State of Tamil Nadu[17], the Hon’ble Court gave guidelines on prisoner’s rights preserved in Article 14, 19 & 21 of the Indian constitution which is violated in prison. The study also reveals 3 out of 4-row convicts are economically vulnerable or belong to marginalized communities. Some of them are disadvantaged or extremely poor resulting in a lack of legal representation.

Conclusion

An eye for an eye will turn the whole world blind – Mahatma Gandhi. The courts have been awarding capital punishment to convicts guilty of committing heinous crimes, yet there is a highlighting surge of crimes happing in recent years. Deterrence theory states Death Penalty is possibly a method for invoking a sense of civilizing and inflicting fear in minds of society for the consequences of committing a heinous crime. This theory is excoriated worldwide and has clearly failed to make an impact in India.

In the land of Gandhi, the State should adopt reformative theory by focusing on the betterment of criminals in prison, adopting special measure reforms, adequate treatment. Further as noted in  Narotam Singh v. State of Punjab case[18], The Court expressed a ‘Reformative approach’ to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to secure social justice.

Capital Punishment should not exist in any civilized society. Killing the criminal for serving justice and law demonstrates an immoral approach lack of respect towards human life. Legal experts and Former judges of Apex Court have raised concerns about the disagreement of the death penalty. Judges sought to rely on the opinion of “Pardon them not hang them”. The report of Justice J.S. Verma Committee claimed that capital punishment is a regressive step and may not provide deterrence. The committee recommended the life sentence for the most grievous of crimes.

Also, the current international trend reflects that majority of western liberal countries have either ban or abolished the Death penalty, like the Life of an individual is not states property and is precious in itself and ultimately death is irrevocable. For a Democratic State like India reflecting value on the right to life, the time has come to abolish barbaric punishment of the death penalty.


Author:

vedant deshbhratar Vedant Deshbhratar | Dr Ambedkar College, Deeksha Bhoomi, Nagpur


References

[1] National Crime Records Bureau report 2019.

[2] National Archives of India, New Delhi (1853-73)

[3] Bachan Singh vs State of Punjab (1980) (2 SCC 684)

[4] Article 37(a) of the Convention on the Rights of the Child (‘CRC’) explicitly prohibits the use of the death penalty against persons under the age of 18.

[5] Power of Governer to Grant Pardons, Constitution of India, Article 161

[6] Power of President to Grant Pardons, Constitution of India, Article 72

[7] Epuru Sudhakar vs Government of Andhra Pradesh 2006 (7) SCJ 501, 2006 (9) JT 72

[8] (2014) 3 SCC 1

[9] AIR 1973 SC 947

[10] Equality Before Law, Article 14, Constitution of India

[11] AIR 1979 SC p 916

[12] (2 SCC 684)

[13] 1983 AIR 957

[14] 2008 SCC 767

[15] India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.38-39

[16] Article 6 contains guarantees regarding the right to life and contains important safeguards to be followed by signatories who retain the death penalty.

[17] 1983 AIR 361, 1983 SCR (2) 348

[18] AIR 1978 SC 1542, 1978 CriLJ 1612, (1979) 81 PLR 65

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