24.05.2024
DEATH PENALTY: A NECESSARY EVIL?
Introduction
Capital punishment, also called the death penalty, refers to the most extreme of all sanctions imposed by law by a state against an individual for having committed a crime. This final penalty signifies that the criminal condemned, judged and punished is an execution by the state in which the criminal was found guilty. In many nations across the world, including India, capital punishment is reserved for the most heinous offences, known as capital crimes. These crimes are often ones that do significant harm to persons or society, frequently including intentional and brutal acts of violence.
Evolution of the Death Penalty in India
The offensive sentence was systemic punishment during the Mauryan dynasty, as per the type of offence. The law of retributive justice applies to the commonly stated principle "eye for an eye, hand for a hand". This meant that punishment would directly correspond with the actual crime committed. Looking back in history, we find that King Hammurabi of Babylon was the first to codify criminal laws, including those related to the death penalty or capital punishment. His legal code laid the foundation for future legal systems that incorporated capital punishment as a deterrent and a form of retribution.
The death penalty imposed during British rule was primarily followed by trials before hanging or without even putting up a legal battle. During that period, capital punishment became the most effective method of controlling the masses. Substantial Changes in the Judicial System, which Included Death Penalty: Indian Independence was in 1947. Although it became a republic and adopted a new constitution, the death penalty remained part of the 1860 Penal Code.
During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly advocated for the abolition of the death penalty. However, no such provision was included in the final constitution. In the subsequent two decades, various private members’ bills to abolish the death penalty were introduced in both the Lok Sabha and Rajya Sabha, but none were adopted.
It is estimated that between 1950 and 1980, there were between 3,000 and 4,000 executions in India. The exact number of death sentences and executions between 1980 and the mid-1990s is more complicated to ascertain. Still, it is believed that two to three people were hanged annually during this period. In the landmark 1980 Bachan Singh judgment, the Supreme Court of India ruled that the death penalty should only be imposed in the "rarest of rare" cases.
Notably, however, it did not clarify the "rarest of rare" cases or how they came by the fact. The United Nations declared capital punishment a contravention of human rights. However, India still treats it as a punishment endured within its legal framework. It has put a cap on the death penalty, reduced considerably in its application since the mid-20th century.
The Current Scenario of Death Penalty in India
The death penalty can be executed through various methods, with nine primary modes recognised globally. These include hanging, shooting by firing squad, shooting, beheading, lethal injection, stoning, gas chamber, electrocution, and falling from an unknown height. Hanging happens to be the most widely authorised practice, whilst electrocution, gas chamber, and falling from heights are few among those least adopted. In India, the death penalty is commonly given through hanging. Section 53 of the Indian Penal Code describes the types of punishments, explicitly placing the death penalty as the first. The death penalty can be imposed for 11 specific offences, including:
1. Waging war against the government of India.
2. Abetting mutiny.
3. Fabricating false evidence leading to the execution of an innocent person.
4. Threatening someone to give false evidence resulting in the death of an innocent person.
5. Murder.
6. Abetment of suicide of a minor, insane, or intoxicated person.
7. Attempting to murder a life convict if hurt is caused.
8. Kidnapping for ransom.
9. Rape causing death or resulting in a persistent vegetative state of the victim.
10. Repeat offences under sections 376, 376-A, or 376-D of the IPC.
11. Dacoity with murder.
However, the death penalty is reserved for the "rarest of the rare" cases. The courts must have also made a compelling reason to impose the sentence in detailing why the death penalty was chosen over life imprisonment. Only in sporadic cases should the death sentence be awarded. Thus, the Indian Supreme Court holds.
Before the Criminal Procedure (Amendment) Act of 1955, the death penalty was the norm, with life imprisonment being the exception in India. Courts were mandated to provide a rationale for opting for a lesser penalty than death for capital offences. However, the 1955 amendment granted courts the discretion to choose between the death penalty and life imprisonment.
Under Section 354(3) of the CrPC, 1973, courts must now articulate their reasons in writing when imposing the maximum penalty; life imprisonment has become the yardstick punishment; in extreme cases, the death penalty is prescribed for exceptional cases. Despite the UN advocating the abolition of the death sentence worldwide, India still retains it as a form of punishment. The logic of this argument rests on the concept that if human beings were spared a sentence for murder- deliberate, cold-blooded murder- it would not serve the law’s efficacy and justice.
In line with this stance, the Law Commission rejected a proposal to abolish the death penalty in its 35th report in 1967Statistical data from official sources reveal that there have been 720 hangings since the time of Independence from 1947 in India, out of the thousands, perhaps millions, who were sentenced to the gallows by trial courts. Many sentences were transformed into life sentences; some were set free by higher courts.
In Raghubir Singh v. State of Haryana, the court held that a treacherous murderer deserves a harsher sentence. Still, it also emphasised the need to consider ameliorative aspects since judicial decisions should temper indignation with fairness. In Attorney General of India v. Lachma Devi, the argument was made that the death penalty violated Articles 14, 19, and 21 of the Indian Constitution. However, this has been ruled by a majority of 4:1 in the Supreme Court in favour of the view that the death penalty is neither unjust nor contrary to the public interest. It has been recognised that the doctrine of ‘rarest of rare’ is fraught with inconsistencies in its application and thus leaves the question of what kinds of cases fall under this category open to debate.
Proponents argue that capital punishment is necessary to protect society from dangerous criminals and to satisfy the public’s demand for justice against heinous crimes. In their view, the very cardinal issue is the rejection by the President and the Governor on the mercy petitions. They argue that life imprisonment does not serve such a deterrent purpose that it can be preferred in replacement of the death sentence.
They argue that the death penalty is a powerful deterrent against other potential offenders, as it acts as an example to all. They say that lesser punishments do not prevent recidivism, and compared to life imprisonment, the death penalty is quicker and arguably more humane. Abolishing the death penalty, they argue, would embolden criminals and increase crime rates.
Critics of the death penalty argue that it is an admission of the state’s failure to achieve deterrence through less severe means. So they say that the criminals, being humans, can very well be reformed. The death penalty, for them, is barbaric and cruel, which actually only affects the poor, while the affluent often escape its severe consequences. Morally, they contend that it is state-sanctioned murder, violating the sanctity of life granted by God. Despite these criticisms, many believe that the time is not ripe for the abolition of the death penalty in India.
The presence of terrorism in regions like Jammu and Kashmir, the Naxalite movement in Assam and Nagaland, and various divisive movements necessitate its retention. Abolishing the death penalty, they argue, would encourage terrorism and separatist forces. The Supreme Court and the Law Commission of India also share the view that the death penalty should remain a part of the criminal justice system. They believe it is crucial in deterring crime and maintaining public order.
Constitutional Validity of Death Penalty
The constitutional validity of the death penalty was deliberated by a Constitutional Bench of the Supreme Court in the landmark case of Bachan Singh v. the State of Punjab. This matter reached the Constitutional Bench due to a conflict between two previous rulings of the Supreme Court regarding the scope and validity of the provision enabling the imposition of the death penalty. The conflicting rulings are the ones where it was held by the Constitutional Bench in Jagmohan v. State of Uttar Pradesh that the death penalty was constitutional. At the same time, the ruling of a three-member bench in Rajendra Prasad v. State of Uttar Pradesh had a majority opinion which laid down certain criteria for the imposition of death penalty.
In Bachan Singh v. the State of Punjab, the Constitutional Bench, consisting of Chandrachud CJ, Sarkaria, AC Gupta, and NI Untwalia JJ, after extensive deliberation and comparative analysis of death penalty laws in other countries like the US and UK, upheld the constitutional validity of the death penalty. In the case of Macchi Singh v. the State of Punjab, the Supreme Court brought finer touches to the death penalty. The Court laid down the guidelines for the application of the death penalty, stating that it was to be imposed only in the rarest of rare cases of the highest degree of culpability and as such “life imprisonment should be the rule and death the exception.”. Moreover, the court emphasised the importance of weighing both aggravating and mitigating circumstances before deciding on the sentence. The balance between these factors should be carefully considered, ensuring that the imposition of the death penalty is reserved for cases where life imprisonment is deemed inadequate and insufficient punishment given the nature and circumstances of the crime.
Article 21 of the Indian Constitution stands as a cornerstone, guaranteeing every individual the inviolable right to life and personal liberty, encompassing the right to live with dignity. This fundamental right can only be curtailed by the state through a fair and just process, as articulated in the landmark judgment of Maneka Gandhi v. Union of India. In the death penalty context, our constitutional framework delineates several guiding principles.
The death penalty shall be reserved for only the rare cases so that it may be justified as an exceptional step under concomitant circumstances. Therefore, the punishment should be introduced forthwith caution, as something unique, not as a regular sentence. Additionally, the accused must be allowed to present their case and be heard fairly and impartially. Sentencing should consider each case’s circumstances, ensuring that justice is met with due regard to the specific context and mitigating factors.
Additionally, the confirmation of a death penalty sentence resided with the High Court, with appeal provisions to the Supreme Court, hence providing multiple judicial review layers. The accused may also seek commutation from and pardon from established legal channels to ensure protection against this irreversible extreme penalty. It is, by all accounts, confirmed that the exercise of executive power, mainly when it deals with matters of clemency, should follow the lines that the rules of law and reason have laid down. It should completely avoid any extraneous consideration such as those of race, religion or political affiliation. Furthermore, the accused enjoys a right to a speedy and fair trial, protection from torture, and the right to competent legal counsel in all trials. Those rights are documented in Articles 21, 22, and 19 of the Constitution. They are representative of due process safeguards and the dignity and rights of every individual in all cases, particularly the most heinous of criminal charges.
Opinion on the Death Penalty
The death sentence is often criticised as a cruel act that strips individuals of their most fundamental right—the right to life—effectively ending a person’s existence. One of the gravest concerns surrounding capital punishment is the risk of executing an innocent person, wrongfully accused in the often-complex legal process. Punishment, which cannot be revoked, takes away any chance of rehabilitation and reform and suffocates possible positive change. Often, habitual offenders are people who at one time may have broken the law but have not received the necessary support to reform.
It is indeed cruel, but in a way, it has some advantages. First, it serves as a good deterrent to criminals, who, knowing that life might cease to be, refrain from attempting crimes. The fear of capital punishment can also go toward reducing crime incidence, as only a few are willing to risk their lives because of their criminal acts. Furthermore, the death penalty can also be seen as a means to permanently remove dangerous individuals from society, thereby enhancing public safety and reducing the fear of crime.
In essence, the death sentence represents the most extreme form of punishment a judicial system can impose. While it is indeed a heinous act that violates the fundamental right to life, it is also crucial to acknowledge its role in dealing with exceptional crimes. The legal framework governing the death penalty in India is designed to ensure that it is not applied arbitrarily but is reserved for the "rarest of rare" cases. This approach appears to be justified and appropriate, balancing the need for exceptional punishment with the importance of safeguarding human rights.
Conclusion
In India, capital punishment is a serious debate issue between the advocates and opponents of the death penalty. Those in favour of capital punishment argue that it serves as a powerful deterrent, dissuading potential offenders from committing heinous crimes due to the fear of facing the ultimate punishment. They also contend that the death penalty provides a sense of closure and justice for victims and their families, particularly in cases of egregious offences like murder and rape.
Additionally, supporters assert that executing dangerous criminals ensures the safety of society by permanently removing them from circulation, preventing them from causing further harm. However, opponents raise significant concerns regarding the death penalty’s ethical implications and potential for wrongful execution. They argue that the risk of executing innocent individuals, coupled with the fundamental moral question of state-sanctioned killing, undermines the credibility of the legal system.
Moreover, critics highlight the disproportionate impact of the death penalty on marginalised and economically disadvantaged individuals, exacerbating systemic injustices within the criminal justice system. Moreover, critics oppose it on the grounds that the death penalty for rehabilitation orientation creates a dead end in all aspects and perpetuates further violent injuries that deny people the possibility of their redemption. Of course, the issue of retaining or abolishing the death penalty in India is much more complicated with respect to justice, human rights or societal values and we would have to balance the competing interests involved carefully.
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