Reforming death penalty
GS 2- Judiciary, Govt Policies and Interventions, Issues arising out of Design and Implementation of Policie.
Context:
- The Supreme Court has repeatedly expressed concern over the manner in which trial courts and High Courts have carried out sentencing with very little (relevant) information.
- The Bench headed by Justice Lalit will comprehensively examine procedures in death penalty cases to ensure that judges who have to choose between life imprisonment and the death sentence have comprehensive sentencing information.
- The court is undertaking an exercise to reform the procedures by which information necessary in a death penalty case is brought before courts.
- In so doing, the Supreme Court is acknowledging concerns with the manner in which death penalty sentencing is being carried out.
- While the death penalty has been held to be constitutional, the manner in which it has been administered has triggered accusations of unfairness and arbitrariness.
What is Capital Punishment or Death Penalty?
Capital punishment, also known as the death penalty, is a state-sanctioned practice of killing a person as a punishment for a crime. The sentence ordering that an offender is to be punished in such a manner is known as a death sentence, and the act of carrying out the sentence is known as an execution. A prisoner who has been sentenced to death and awaits execution is condemned and is commonly referred to as being “on death row”.
Pros and Cons of Capital Punishment:
Pros:
- The death penalty can provide a deterrent against violent crime: To avoid violent crimes in society, a strong deterrent is required. The goal of a law is to provide a deterrent against crime. This deterrent could be capital punishment which is used in cases of rarity and sets an example that if ever such acts are repeated the consequences would be dire. This would also help prevent the crime from happening in the first place.
- Beyond Rehabilitation: There are cases of horrific crimes which are beyond the point of rehabilitation. For such cases, capital punishment not only creates a deserved punishment equivalent to the crime committed but also provides safety for the rest of society. It also prevents the commission of such crimes in the distant future.
- Possibility of Escape: Death penalty eliminates the chance of escape for the consequences of a criminal’s actions. It eliminates the possibility of an illegal escape.
- Disproportion: A sentence of life in prison is disproportionate to the capital crime. If a convicted criminal receives life in prison for taking a life, proponents argue that this is not justice because the outcome is disproportionate to the action taken.
- No Re-victimisation: The death penalty does not re-victimize the affected family. There is rightful sympathy or empathy directed toward the family of someone accused of a capital crime.
Cons:
- Capital punishment many times does not show its effect on the rates of violent crime.
- In a country like India wherein many cases justice seems to be an ideal type which is hard to get, there are many cases where innocent people come within the clutches of Death Penalty. Though an exact number for such cases is impossible to be checked, this is a fact which cannot be denied.
- Capital Punishment simply takes away the right of a criminal who may prefer to get rehabilitated. It eliminates such possibilities where a person who is not a habitual offender can seek a chance to rehabilitate.
- While some societies see it as the only deterrence to crime others believe that there are other instruments as well which could be implemented to lower the crime rate by deterring the very criminality itself.
- It is the ultimate denial of human rights when implemented. Amnesty International describes the implementation of capital punishment – “The death penalty is the ultimate denial of human rights,” the organization says. “It is the premeditated and cold-blooded killing of a human being by the state in the name of justice. It violates the right to life. It is the ultimate cruel, inhuman, and degrading punishment. There can never be any justification for torture or cruel treatment.”
- It is used to control political messages.
Capital Punishment in the 21st Century
- Despite there are anti-capital punishment movements, many countries have retained capital punishment. For cases of drug trafficking, 30 countries have made it a capital offence. Singapore has by far the highest rate of execution in drug cases which is three-fourths of all the cases of 2000. In cases of economic crimes around 20 countries use capital punishment. Sexual offences of various kinds are punishable by death in more than 24 countries one of which is India as well.
- In the United States, where 60% of its states have retained the death penalty, about 2/3rd of all executions since 1976 have been made in only six states. Although the number of executions worldwide varies on yearly basis countries like Belarus, Congo, Iran, Saudi Arabia, Singapore have the use of capital punishment on a regular basis. India has till date retained the death penalty and carry out executions from time to time in rarest of the rare cases.
Death Sentence under Different Statutes:
Indian Criminal jurisprudence is based on a combination of deterrent and reformative theories of punishment. While the punishments are to be imposed to create deter amongst the offenders, the offenders are also to be given opportunity for reformation. The courts while imposing death sentence has to record its special reasons as to why the court came to the conclusion.
- As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.
- The situation has been reversed and a life sentence is the rule and death penalty an exception in capital offences.
- Moreover, despite a global moratorium against the death penalty by the UN, India retains the death penalty.
- India is of view that allowing criminals guilty of having committed intentional, cold-blooded, deliberate and brutal murders to escape with a lesser punishment will deprive the law of its effectiveness and result in travesty of justice.
- In concurrence of this, a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 35th report 1967.
- In India the number of prisoners on death row at the end of 2021 stood at 488, the highest in 17 years, according to the Death Penalty in India Report.
- The Indian Penal Code prescribes ‘death’ for offences such as
- Waging war against the Government of India. (Sec. 121);
- Abetting mutiny actually committed (Sec. 132);
- Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194);
- Murder (Sec. 302);
Some other criminal statutes that provide for the death penalty as a form of punishment:
- Direct or indirect abetment of sati is punishable with Death penalty under the Commission of Sati (Prevention) Act, 1987.
- Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty.
- Besides these, rape of a minor below 12 years of age is punishable with death under Protection of Children from Sexual Offences (POCSO) Act, 2012.
- Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for repeat offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
- Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide the death penalty for certain specified offences committed by members of the armed forces.
Cases on Death Penalty:
- Jagmohan Singh v. State of UP 1973 case: The Supreme Court held that according to Article 21 deprivation of life is constitutionally permissible if that is done according to the procedure established by law.
- Thus the death sentence imposed after a trial in accordance with legally established procedures under Cr.PC and the Indian Evidence Act is not unconstitutional under Art. 21.
- Rajendra Prasad v. State of UP 1979 case: The Supreme Court held that, if the murderous operation of a criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.
- Machhi Singh v. State of Punjab 1983 case: The Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not.
- Bachan Singh v. the State of Punjab 1980 case: A Constitution Bench of the Supreme Court propounded the dictum of ‘rarest of rare cases’ according to which death penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed.
Conclusion
- There must be a very high degree of fairness in a system that is interested in subjecting individuals to the experience of death row, and ultimately taking lives through the instrumentality of law.
- With that as the starting point, the criminal justice system needs to do all it can to ensure that systems are created for procedural fairness.
- The paths of reforming the death penalty on the one hand and abolishing it on the other, go along side each other for a very long distance. Every instance of engagement on reforming the death penalty throws light on the inherent unfairness of using the death penalty, especially in a system like ours.
- Capital punishment stands justified in India because of its use in Rarest in Rare Cases.
