CAPITAL PUNISHMENT OR DEATH PENALTY
Capital punishment is the punishment which involves the legal killing of a person who has committed a serious crime such as murder.
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Legal backing of death penalty in India
- Code of Criminal Procedure (CrPC), 1898: Death was the default punishment for murder and required judges to provide reasons in their judgment if they chose life imprisonment instead.
- Amendment to the CrPC in 1955: The requirement for written reasons for not imposing the death penalty was removed, showing no legislative preference between the two punishments.
- Section 115, IPC: Abetment for an offence punishable with death or imprisonment for life (if the offence was not committed).
- Section 118, IPC: Concealing design to commit an offence punishable with death or imprisonment for life.
Evolution of Death Penalty in India
- Normal Punishment: The death penalty was the standard punishment for murder for the first 5 years after the constitution was made (1950).
- Choice of Judge: Changed in 1955, allowing sessions judges to award either capital punishment or life imprisonment for murder.
- Special Reason Needed: The CrPC was amended in 1973 to mandate that special reasons be provided by the Sessions judge for imposing the death penalty.
- Rarest of the Rare: In Bachan Singh vs. State of Punjab (1980), the Supreme Court ruled that the death penalty could be imposed only in the “rarest of rare cases” where life imprisonment was not sufficient.
- Exceptions: The Machhi Singh vs. State of Punjab (1983) case outlined conditions where the death penalty could be invoked, such as:
- Murder committed in an extremely brutal manner causing extreme outrage.
- Murder with the motive of expressing total degeneracy.
- The crime being enormous in proportion.
India’s stand and provisions for Death penalty
- Indian penal provisions: IPC section 376A provides for the death penalty for rape or sexual assault (amended in 2013).
- India at UN: India voted against 2007 & 2012 UNGA resolutions for a ban on the death penalty.
- Death penalty acts: Awarded for offences under the Commission of Sati (Prevention) Act, 1987, Scheduled Tribe (Prevention of Atrocities) Act, 1989, and Narcotic Drugs and Psychotropic Substances Act.
- Recent instances of Death penalties: Recent death penalties include the Nirbhaya convicts and terrorist Yakub Menon of the Mumbai blasts case.
- Initiation by the states: Maharashtra has awarded the death penalty for non-homicidal rape of adult women and acid attacks. Andhra Pradesh, under the Disha Act, imposed the death penalty for sexual assault offences.
Judicial evolution of death penalty cases
- Jagmohan Singh vs. State of UP, 1973: The Supreme Court opined that deprivation of life is constitutionally permissible as per Article 21 of the Constitution by procedure established by law.
- Rajendra Prasad vs. State of UP, 1979: A murderer’s rights can be overridden when he jeopardizes social security.
- Bachan Singh vs. State of Punjab, 1980: The death penalty must be applied only in the “rarest of rare cases” when the alternative option is unquestionably closed.
- Machhi Singh vs. State of Punjab, 1983: This case outlined considerations for determining the “rarest of rare” cases, such as when a murder is committed in a brutal manner.
Arguments for Death Penalty
- Social
- Social confidence: The death penalty reassures the public that perpetrators of heinous crimes will face the ultimate punishment, instilling confidence in its deterrent effect.
- Principle of equal Retribution: This principle suggests that real justice requires people to suffer for their wrongdoing proportionally to the crime.
- Closure to victims: It is often argued that the death penalty provides closure to the victims’ families.
- Religious sanction: Many sacred texts prescribe death for certain crimes, supported historically by religious hierarchies.
- Moral correctness: Supporters argue that murderers have forfeited their right to life by taking another’s.
- Collective Conscience: The judiciary has referenced the concept of “Collective Conscience,” suggesting that crimes shaking society’s collective conscience merit the death penalty.
- Political
- Cheaper alternative: The death penalty is often seen as more cost-effective than life imprisonment, which requires state funding for the convict’s maintenance.
- Convenient Justice: Life imprisonment can result in prolonged cases involving appeals, witness tampering, parole, and furlough, keeping the convict’s case active indefinitely.
- Psychological
- Deterrent: The death penalty may act as a deterrent, preventing others from committing crimes out of fear for their own lives.
- Fear of Life: This fear can lead individuals to avoid actions that could result in a death sentence.
- Crime-infested regions: In areas with high crime rates, the death penalty may help reduce crime when imposed.
- Example: Due to an increase in executions, Saudi Arabia’s crime rate and statistics for 2017 showed a 1.27 rate, representing a 14.94% decline from 2015.
Arguments against death penalty
- Legal
- Not goal of justice system: The justice system aims at reforming convicted individuals in cases of life imprisonment, whereas the death penalty is often perceived as revenge.
- Chance of errors: With advancements in DNA technology, it has been found that many wrongful executions have occurred.
- Misplaced conviction: People have been convicted based solely on circumstantial evidence without concrete proof. This increases the chance of executing an innocent person.
- Example: Dhananjoy Chatterjee, a security guard, was executed in 2004 for the rape and murder of an 18-year-old schoolgirl in 1990 based on circumstantial evidence.
- Executing innocent: According to Amnesty International, as long as human justice remains fallible, the risk of executing an innocent person can never be completely eliminated.
- Social
- Ineffective methodology: Observations have shown that the death penalty has not significantly reduced instances of heinous crimes.
- Political statement: Some individuals, such as those driven by ideology, are not deterred by the death penalty and may even see it as a form of martyrdom.
- Example: Religious fundamentalists and suicide bombers may seek the impact of their execution when caught alive.
- Moral
- Legalized murder: The death penalty can be viewed as state-sanctioned murder. Many argue that no individual or authority has the right to take another’s life.
- Mental illness: Cases of undiagnosed mental illness among convicts may be overlooked in the justice process, leading to unfair executions.
- Against human rights: The death penalty infringes upon the rights of a condemned person, who is still entitled to basic human rights.
- International practice: About 170 states have abolished, placed moratoriums, or suspended executions for over 10 years. [UN Secretary General’s report on the death penalty]
- Judicial and legal precedents
- Rajendra Prasad v. State of Uttar Pradesh, 1979: The Supreme Court dealt with sentencing discretion and discussed the need for ‘special reasons’ for imposing the death penalty on exceptional grounds.
- Bachan Singh v. State of Punjab, 1980: The Supreme Court ruled that judges should apply principled reasoning for death sentences based on aggravating circumstances.
- Mithu v. State of Punjab, 1983: Section 303, which mandated the death penalty, was held unconstitutional as it violated Articles 14 and 21 of the Constitution, which ensure equality and personal liberty.
- Machhi Singh v. State of Punjab: The Supreme Court used the idea of “collective conscience” to justify the death penalty, emphasizing that when society is shocked, the judiciary is expected to respond accordingly.
- Rarest of Rare: The Supreme Court outlined principles in this case to apply the ‘rarest of rare’ doctrine.
- Law Commission: In 2015, under Justice A.P. Shah, the commission suggested abolishing capital punishment for non-terrorism cases, noting that India is among the few countries still carrying out executions.
Challenges for capital punishments
- Delay in police action: Police actions regarding filing complaints may delay the entire process and misguide it, providing opportunities for influential individuals to escape justice.
- Insensitive agencies: Many news agencies don’t cover heinous crimes promptly and only report them at much later stages.
- Low conviction rates: According to NCRB data, there are significant figures of repeat sexual offenders.
- No political bar: Numerous party leaders with allegations of heinous crimes have been given tickets and subsequently became MPs or MLAs. As per the Association of Democratic Reforms, 43% of elected Lok Sabha members have criminal charges.
- Outdated investigation modes: Traditional investigation methods are often inadequate for crimes committed through virtual means, necessitating updates.
- Ineffective prosecution: With around 4.7 crore pending cases, the judiciary struggles to provide timely and effective justice, especially for victims with limited resources.
Way ahead
- Exceptional Cases: The death penalty should be reserved for truly exceptional cases and should not become a standard practice.
- Based on hard evidence: Death penalties should not be based on circumstantial evidence and should only be applied when there is solid evidence.
- Following Court Precedents: The principles established in cases like Bachan Singh or Machhi Singh must be adhered to, ensuring uniformity in punishments for similar offences.
- Social interaction: High-crime regions need public sensitization and the identification of potential criminals.
- Database maintenance: Maintaining a database of repeat offenders and tracking their movements can help prevent future crimes to an extent.
Although the Law Commission recommended abolishing the death penalty for ordinary crimes, many activists advocate for its complete abolition. Ending the death penalty could also reduce the long-term litigation associated with murder cases. The Supreme Court must determine whether the absence of political will for abolition constitutes a violation of the right to life guaranteed under Article 21.