Capital Punishment

Retain Or Abolish?

Capital Punishment
Capital Punishment

Capital punishment or Death penalty is the highest degree of legal retribution in India. This provision has been laid down in the Indian Penal Code (IPC), 1860. Nathuram Godse and Narayan Apte were the first people to be hanged in independent India in the Mahatma Gandhi assassination case on 15th November, 1949. In Bachan Singh vs. State of Punjab case (1980), Supreme Court of India made it clear that only in the “rarest of rare cases” can the Capital Punishment be imposed. While stating this, the court further mentioned that “honour killing” will fall under this “rarest of rare” category.

There are two methods of execution under capital punishment. They are:-

  • Hanging – When a death sentence is imposed on a person, it should be clearly stated in the sentence that the person should be hanged till death. This is provided in the Code of Criminal Procedure 1973, under section 345 (5). This procedure was devised by William Marwood in Britain.
  • Shooting – the Air Force Act, the Navy Act and the Army Act also provides provision for execution of the death sentence. According to section 163 of the Army Act, the form of sentence reads thus – “In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death.”

According to Article 72 of the Indian Constitution, the President has the power to grant pardons, remissions, respites or reprieves of punishment or to suspend, commute or remit the death sentence of any convicted person. Similarly, according to Article 161 of the constitution of India, the Governor of a State has the power to grant clemency.

Capital Offences

Section under IPC or other law

Nature of crime

120B of IPC

If anyone is a party to the criminal conspiracy to commit a capital offence.

121 of IPC

War against Indian government

132 of IPC

Abetting or engaging in a mutiny

194 of IPC

Giving or fabricating false evidence with intent to procure a conviction of a capital offence

302, 303 of IPC

Murder

396 of IPC

Dacoity with murder

376A of IPC and Criminal Law (Amendment) Act, 2013

Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender

305 of IPC

Abetting the suicide of a minor

Part II Section 4 of Prevention of Sati Act

Aiding or Abetting of Sati

364A of IPC

Kidnapping for ransom

31A of the Narcotic Drugs and Psychotropic Substances Act

Drug trafficking in cases of persistent offences

The Criminal Law Act 2018

Rape of a child under 12 years of age.

 

Why Death Penalty should be abolished?

  • Death penalty does not make any sense as a punishment because when a convict commits a heinous crime of such (liable to be awarded capital punishment) high magnitude, he will never understand that killing is wrong. This punishment serves no purpose ultimately and that might be the reason why it had been abolished by most of the civilized world. There are no such evidences that it has deterred terrorism or murder or theft. Taking away a person’s life under the sanction of law depicts nothing but a sheer barbarity. There needs to be certainty and swiftness along with the severity of the punishment for deterrence to work.
  • There are flaws in the justice systems all over the world, therefore, there always remains a possibility that an individual may be punished wrongly and irrevocably.
  • Death penalty is full of errors. Out of 60 death sentences imposed by the Supreme Court Of India between the year 2000 and mid of 2015, errors were found in 25% of the cases as admitted by the Supreme Court itself. It’s a big question about how to trust this system to take a life based on the evidences gathered or fabricated by the police force which is known for its lack of efficiency and probity.
  • Those with “deep pockets” remain untouched. The poor and the marginalised prisoners who cannot afford private lawyers gets targeted the most while people with “deep pockets” remain unscathed with the help superior lawyers.
  • Administering death penalty in a fair and rational manner is quite impossible. It has been repeatedly admitted by the Supreme Court that it has arbitrarily given this extreme punishment. It is overwhelmingly dependent on the personal belief of the adjudicator. Judges who are in favour have doled it out while those with opposite beliefs never imposed a death sentence. Here is big question on how the life of a person be dependent on a particular individual’s philosophy?
  • The burden of the tax payers shall be eased if death penalty is abolished. Annually ₹30,000 is incurred on maintaining a prisoner. Moreover, expenditures are also incurred on hangman and protracted litigation that death cases involve.

 Why Death Penalty should not be abolished?

  • There are mainly three bases over which it has been criticized – human rights, arbitrariness &irreversibility. If these three bases were enough to abolish the punishment then liberal democracy like the U.S. had done it much earlier. The retention of the capital punishment cannot be a reflection of “uncivilised” polity in theocratic states that has been defined by violence but a formation of an independent geopolitical environment in each state.
  • It cannot be directly stated as arbitrary since the decision is an outcome of a judicial process. The process needs to be proved as flawed before commenting it as arbitrary.
  • The Law Commissions 35th report on death penalty had correctly called for its retention to see its effect on a new republic but the 262nd report could not recommend absolute retention of the punishment inspite of its desperate attempt to do the same.
  • India has a neighbourhood which is full of distress. Unlike European Nation that facilitate towards common growth, India has to counter the attempts to destabilise its sovereignty from across every border it shares. This is a vital reason why death penalty cannot be abolished because to protect the national stability it plays a crucial role in the national response.
  • A sentence should not be judged by its effects on criminal but by the level of impact that the crime has inflicted on the innocents.
  • Punishment demonstrates societal mores, hence, retention of death penalty can never be an arrogant state interest to seek revenge, rather it is far more radical. It determines that there are some indubitable acts which the nation so essentially loathes that they rationalize the taking of the most crucial of rights – the right to life (Article- 21). The sacredness of life can only be preserved if those who take it away are proportionately punished. The execution of Ajmal Kasab and Yakub Memon, thus, strongly affirms India’s fidelity to the protection of life.

Recommendations of Law Commission:-

  • The commission has recommended revamping of police reforms, victim compensation scheme and witness protection scheme for superior and more effective investigation and prosecution.
  • The march of our own jurisprudence — from eliminating the necessity of giving special justification for imposing life imprisonment as an alternative to death in 1955; to mandating special justification for imposing the capital punishment in 1973; to 1980 when the capital punishment was restricted by the Supreme Court of India to the rarest of rare cases – shows in which direction we have to head. Informed also by the intensified and expanded contents and horizons of the right to life and heightened due process requirements in the interactions between the individual and the state, prevailing standards of human dignity and constitutional morality, the Commission presumes that it is time for India to move towards abolition of the capital punishment.
  • Although treating terrorism differently from other crimes has no valid penological reasons yet there are concerns that abolition of capital punishment for offences relating to terrorism and waging war may affect national security. Nevertheless, given the apprehensions brought by the law makers, the commission does not find any reason to postpone abolition of capital punishment for all offences except terrorism related offences.
  • The Commission consequently recommends that the capital punishment be abolished for all crimes except wagging war and terrorism related offences.

A Complicated View

There are several questions on the moral foundation of judicial killing which has been judged as untenable in multiple countries. The UN general assembly in 2007 adopted a resolution to abolish death penalty and protection of human rights when it recommended a worldwide moratorium on capital punishment.

Apart from India, there are 58 countries including the US, China, Pakistan, Iran and Saudi Arabia where capital punishment is still awarded to the convicts. Over 140 countries have already abolished practice of capital punishment which indicates that rising standards of human decency and dignity are against capital punishment. The global drift towards successful and sustained abolition affirms that retaining capital punishment is not a necessity for effectively responding to terror, insurgency or violent crimes.

In India the demand to abolish capital punishment has only been raised by a few political parties which include the DMK and the Communist parties. It was opposed by B.R. Ambedkar on the philosophy of non-violence in the constituent assembly debates. After the execution of Bhagat Singh, Sukhdev and Rajguru, the congress had opposed it in 1931, but since then while being in its multiple terms as ruling party, it never moved for abolition of capital punishment.

The capital punishment was supported by the Law Commission in 1962 when it declared that “experiment” with the abolition cannot be done considering India’s particular circumstances. Even the Supreme Court of India in 1991 stated that capital punishment cannot be abolished in order to defend law and order. Its alleged functionality augments from being a prospective deterrent to aiding as a primordial requirement for retribution.

Retribution has a crucial role to play in punishment. So, it cannot be reduced to vengeance. In our constitutionally mediated criminal justice system, the notion of “an eye for an eye, tooth for a tooth” has no existence. Death penalty fails to achieve any constitutionally valid penological goals.

Multiple judgments of the Supreme Court as well as various reports from committees have recognized that the country’s administration of criminal justice in is in deep crisis. Backdated modes of investigation, Lack of resources, over-stretched police force, poor legal aid and ineffective prosecution are some of the drawbacks besetting the system. Capital punishment operates within this context and hence suffers from the same systemic and structural impediments. The administration of death penalty thus remains error-prone and vulnerable to misapplication. The vagaries of the administration also perform disproportionately against the economically& socially marginalized who may have insufficient resources to effectively barrister their rights within an adversarial criminal justice system.

Article 72 and 161 which contain provisions of mercy power have failed to provide final safeguard in the imposition of the death sentence against miscarriage of justice. The Supreme Court of India has repeatedly pointed out the lacunas and illegalities in how the executive has executed its mercy powers. When even discharge of mercy powers is occasionally vitiated by gross procedural infringement and non-application of mind, death sentence becomes indefensible.

Long delays in trials, petition and subsequently in executive clemency are faced by death row prisoners. The prisoner on death row undergoes extreme anxiety, agony and debilitating fear arising due to an imminent yet uncertain execution. The Supreme Court of India has admitted that an amalgam of such distinctive circumstances produces psychological and physical conditions of near-torture for the death row convict. Moreover, the death row phenomenon is consolidated by the oppressive and degrading effects of conditions of imprisonment charged on the convict, including solitary confinement, and the prevailing harsh prison environment. The death row phenomenon has become a distinctive and unfortunate feature of the capital punishment apparatus in India. Additionally, imposition of additional, unwarranted and judicially unsanctioned suffering on death sentenced prisoners violates the Article 21 barrier against excessive and degrading punishment.

Since populism bounds the political will in India, the constitutionality of the capital punishment will be challenged persistently and, sooner or later, the Supreme Court will have to intercept on whether the absence of political will become an obstacle in overriding the right to life. It should be remembered that the fundamental right to life and dignity preserved under Article 21 of the Indian Constitution also connotes the right to die with dignity.

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