“Many
that live deserve death. And some that die deserve life. Can you give it to
them? Then do not be too eager to deal out death in judgement. For even the
very wise cannot see all the ends.”~J.R.R. Tolkien
“I
support the death penalty because I believe, if administered swiftly and
justly, capital punishment is a deterrent against future violence and will save
other innocent lives.”~ George Walker Bush
Just a few days back,
the perseverance of the parents of Nirbhaya got duly acknowledged by the whole
of the country on March 20, 2020, the day when all the four convicts were
hanged after seven long years. This decision was welcomed by some and deplored
by the rest. It appeared as an add-on to the ongoing debate of the
constitutional validity of Capital Punishment. Criticism by many international
organizations, say the UN ensued the hanging but it is worth mentioning that
India has made its stance clear on the matter in December, 2007 already when it
rejected UN’s plea for a worldwide moratorium on Capital Punishment
nevertheless it has always been a point of contention. This article aims at
presenting an overview of Capital Punishment.
Introduction:
Death penalty can be
defined as the lawful infliction of death as a punishment for a wrongful act.
In simple terms, it means the state taking the life of an individual.
It has existed since
time immemorial, the first recorded instance being that of Hammurabi[1]
in the 18th century BC. There has always existed an opposition
against Capital Punishment but a tremendous shift in the stance of different
countries towards it took place in the recent past with the increasing
influence of several human right organizations. According to Amnesty
International in 2017, 142 countries have either abolished the death penalty or
introduced a moratorium on its use[2].
Which crimes entail
Capital Punishment in India?
Death penalty or
capital punishment being the highest degree of punishment can be awarded to an
individual under the Indian Penal Code for some grave offences like criminal
conspiracy, murder, waging war against the nation, terrorism-related offences,
rape with injuries that may result in the death of the victim etc. Various
other legislations like Unlawful Activities Prevention Act, Arms Act, etc. also
provide for the death penalty. The now-repealed Prevention of Terrorism Act
(POTA) Terrorist and Disruptive Activities (Prevention) Act (TADA) also
contained death sentence. Recently, India allowed capital punishment for anyone
convicted of raping children under the age of 12 with the amendment of
Prevention of Children from Sexual Offences (POCSO) Act.
What has the Supreme
Court ruled on the constitutional validity of Capital Punishment?
A number of petitions
have been filed in the Supreme Court challenging the constitutional validity of
Capital Punishment wherein the petitioners have contended it to be violative of
Article 21 of the Constitution
titled ‘Protection of life and personal liberty’.
Some of the landmark cases are listed below:
Jagmohan Singh v. State of UP[3]-It was the first case dealing with the question
of constitutional validity of capital punishment in India. The five judge bench
of the Supreme Court by a unanimous verdict, upheld the constitutional validity
of death penalty and held that it was not violative of Articles 14, 19 and 21.
Rajendra Prasad v. State of UP[4]-Justice
Krishna Iyer empathetically stressed that death penalty is violative of
Articles 14, 19, and 21. He further said that to impose death penalty two
things are required
o
The special reason should be recorded
for imposing death penalty in any case.
o
The death penalty must be imposed only
in extraordinary circumstances.
Bachan Singh v. State of Punjab[5]-In
this case the doctrine of “rarest of the rare cases” was laid down where the Supreme
Court ruled that death penalty can be awarded in the rarest of the rare cases
only where an alternative sentence of
life is unquestionably foreclosed. A special reason had to be ascertained
for such a decision. The Supreme Court ruled that the judges will have to
strike a balance between the aggravating and the mitigating factors.
Macchi Singh v. State of Punjab[6]- In this case, the “rarest of the rare rule” was
clarified with illustrations where the application of death sentence could be
justified, some of which are written below:
I. Manner of
commission of murder
II. Motive for commission of murder
III. Anti-social or socially abhorrent nature
of the crime
IV. Magnitude of Crime
V. The personality of the victim of murder
What are the avenues
available to a death-row convict?
The fact that our Constitution makers were fully cognizant of
the fact that death sentence may be given in certain extreme cases only is
proven by the existence of provisions for appeal (Article 134), pardoning power of the President involving
the grant of Mercy Petition(Article 72) and that of the Governor(Article 161). These provisions come to the rescue
of the death-row convicts.
How is execution of
death sentence carried out in India?
There are two ways of
execution of death sentence in India:
o
Hanging the convict by neck till death
o
Firing by the death squad carried out in
cases related to Army Act, Navy Act, etc.
Can delay be a factor
leading to commutation of death sentence?
In the cases of T.V Vatheeswaram v. State
of Tamil Nadu[7] and Sher Singh v. State
of Punjab[8], the Supreme Court had to decide whether a
prolonged delay was reason enough to commute the death sentence to life
imprisonment. While the first case laid down that such a situation gave reason
enough for the convict to invoke section 21 and get the lesser punishment, the
majority in the latter case overruled the previous judgement.
Arguments against Capital Punishment:
- Baccaria’s Treatise[9]: o
The argument against Capital Punishment
has its broad genesis in 1764 when an Italian jurist Cessare Baccaria published
his treatise, “An Essay on Crimes and Punishment”. He argues that the
objectives of punishment are dual-one to
deter future commission of the crimes which death penalty decidedly did not
achieve and the other to reform the offender which death penalty decidedly
cannot achieve.
- Based on the evidence collected, the legal system cannot be trusted to take one’s life. For example, between January 1, 2000 and June 31, 2015, the Supreme Court imposed 60 death sentences. It subsequently admitted that it had erred in 15 of them (25%).
- The “rarest of the rare” rule even does not hold water always. Many a times it has been seen that in similar kind of cases, the judgements differ depending on the discretion of the judges, sometimes driven by the society’s abhorrence to certain crimes or sometimes their arbitrariness. So, this is even not a complete safeguard.
- Irrevocability: This stands as the most undeniable argument against Capital Punishment. Once it is granted, life cannot be restored and since this grant is subject to human error, it becomes a matter of grave concern.
The
case of Santosh Kumar Bariyar v. State
of Maharashtra[10] explicitly
shows how one can suffer an irrevocable loss for an error on part of the
judges. The bench comprising Justices S.B. Sinha and Cyriac Joseph
ruled that previous judgments of the Court in which 13 death sentences were
validated, were rendered per incuriam, or in other words, were
rendered in ignorance of the law laid down in Bachan Singh’s case.
The Law Commission of India has said that death
sentences have been arbitrarily imposed many a times in the absence of a proper
mechanism to check such situations and has also suggested abolishing the grant
of death sentences.
Arguments in favour of Capital Punishment:
o
Retribution: The retentionists believe that people should
suffer for their wrongdoings and suffer in a manner proportionate to their
crime.
o Deterrence: The retentionists do believe that it acts as deterrence
and prevents the future commission of crimes.
o
Prevention
of re-offending and other potential
threats: This can be illustrated with an example
of a terrorist who can be a potential threat to the national security if only
imprisoned for life as this can be an advantage for the terrorist
organizations, which can threaten the government by endangering others in order
to get that person out.
Conclusion:
According to me, in context of India, the abolition of
Capital Punishment seems more suitable in light of the above mentioned
arguments. It could have been way more effective if the decisions were taken
swiftly with minimal chances of error so that the life of any innocent person
would not be at stake unfairly. But unfortunately, what we see is protracted
delay due to which it does not serve the purpose it was supposed to. Moreover,
the errors in such decisions are too many to ignore, so the life of individuals
can just not be taken away so arbitrarily. I feel that in our context, death
penalty can hardly serve any purpose which life imprisonment cannot.
Tripti Singh
B.A.LL.B.(Hons.)
Faculty of Law, BHU
Email-imtriptisingh7@gmailcom
[3] 1973
AIR 947
[4] 1979
SCR (3) 78
[5] AIR
1980 SC 898
[6] 1983
SCR (3) 413
[7] 1983
SCR (2) 348
[8] 1983
SCR (2) 582
[9] Establishing a philosophical framework for society as a
contract between a sovereign, governmental authority and the individual members
that collectively unite under this system, Cesare Beccaria asserts that the
death penalty is neither effective nor necessary for the main- tenance of
justice. Beccaria presents evidence derived from historical examples, his own
social observations, and original lines of reasoning to criticize capital
punishment and instead advo- cate punishment in the form of long-term labor.
[10] CRIMINAL APPEAL NO. 1478 OF 2005
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