News in Focus:

In Chhannu Lal Verma vs the State of Chattisgarh, Justice Joseph had observed that the time had come to review the need for the death penalty as a punishment. Contrarily, the government has decided to to amend certain sections of Protection of Children from Sexual Offences (POCSO) Act, 2012 to include provision of death penalty in cases of sexual offences against children.

 

Background:

 

What is a death penalty or Capital punishment?

Capital punishment, also called death penalty, execution of an offender sentenced to death after conviction by a court of law for a criminal offense. It stands for most severe form of punishment. It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.

Important legal provisions related to capital punishment or death penalty:

302, 303 of IPCMurder
305 of IPCAbetting the suicide of a minor,
Part II Section 4 of the Prevention of Sati ActAiding or abetting an act of Sati
364A of IPCKidnapping, in the course of which the victim was held for ransom or other coercive purposes.
31A of the Narcotic Drugs and Psychotropic Substances ActDrug trafficking in cases of repeat offences
The Criminal Law (Amendment) Act, 2018Rape of a child under 12 years of age.

 

 

Analysis:

Arguments in favour of death penalty:

  • Many People argue that the punishment given to a criminal must be in accordance to the gravity of the crime which he committed. If the crime if extremely inhuman or heinous, then only the Death Penalty should be given.
  • The criminal who has committed such a heinous crime might re-indulge himself in the same crime or he would be capable of getting involved in some other heinous crime as well after her has been released from jail.
  • Executing a criminal is far more cheaper than imprisoning them.
  • It is often argued that any criminal who has committed a seriously heinous crime may be a threat to other inmates in the prison who had committed a less serious crime.
  • According to preventive theory the main aim of capital punishment is to set an example for others and prevent them from criminal activities.

 

Arguments against death penalty:

  • The death penalty is said to breach two essential human rights: Right to life and Right to live free from torture.
  • The practice cannot always be said to be just and fair. Those with good financial background are able to afford the best lawyers while the poor criminals have to accept the punishment without any arguments.
  • Terminating the life of a criminal would never terminate the crime itself.
  • By executing criminals, crime rate cannot be decreased in the society. Crimes are still found to be high in countries where death penalty is legal.
  • Everyone deserves a second chance and since all crimes are related to the psychology of an individual, the punishment of death penalty might seem unfair to some.
  • India follows reformative justice approach, and the main objective of it is to reform the convicted person through individual treatment and educating the offender.

 

Supreme Court Observations on Death penalty:

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to the procedure established by law. In other words, if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.

In this context, SC said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.

  • In Jagmohan Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar Pradesh (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty

However, In Bachan Singh vs State Of Punjab, SC has observed that death penalty must be awarded only in the “rarest of rare cases” when the alternative option is unquestionably foreclosed.

 

What is the criteria for rarest of the rare?

Supreme Court formulated certain broad illustrative guidelines :

  • A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded
  • Also, two prime questions may be asked and answered:
    • is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?
    • are there circumstances of the crime such that there is no alternative but to impose the death sentence

With the emergence of rarest of the rare doctrine, the Court in a multitude of cases such as Haru Ghosh v. State of West Bengal, State of Uttar Pradesh v. Sanjay Kumar , Sebastian v. State of Kerala, Gurvail Singh v. State of Punjab where full life or sentence of determinate number of years has been awarded as opposed to death penalty.

 

Law commission’s recommendations:

35th Report, Law Commission In 1967 on ‘Capital Punishment’: under the chairmanship of Justice (retd) J L Kapur, recommended the retention of the death penalty: “Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order… at the present juncture, India cannot risk the experiment of abolition of capital punishment.”

187th Report, Law Commission In 2003: the Commission, under the chairmanship of Justice (retd) M Jagannadha Rao recommended that Section 354(5) of the CrPC (“When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead”) be amended to allow for lethal injection, too.

  • There should be a statutory right of appeal to the Supreme Court where a High Court confirms a death sentence, or enhances the sentence to death.
  • It also suggested that all death sentence cases should be heard by at least a five-judge Bench of the Supreme Court.

262nd Report, Law Commission In its 2015 Report on ‘The Death Penalty’: the Commission, under the chairmanship of Justice (retd) Ajit Prakash Shah, recommended the abolition of capital punishment “for all crimes other than terrorism related offences and waging war”. It said: “…The notion of ‘an eye for an eye,  tooth for a tooth’ has no place in our constitutionally mediated criminal justice system.

 

Government’s stand:

Following the Law commission recommendations, a proposal by the Home Ministry to abolish the death penalty was made to the states but as many as 12 out of 14 states and Union Territories who responded have expressed a preference for persisting with the practice, possibly ensuring that India will stay, for now, among the minority of countries that allow capital punishment.

 

International Scenario:

Many countries all around the world have abolished death penalty and some countries abolished death penalty for some crimes, Among those that retain and use the death penalty are China, Indonesia, the US, Pakistan and Bangladesh. 

 

Clemency powers:

If the Supreme Court awards capital punishment, a prisoner can submit a mercy petition to the President of India and the Governor of the State. Under Articles 72 and 161 of the Constitution, the President and Governors, have the power to “grant pardons, reprieves, respite or remission of punishment”. There are many mercy petitions filed by the offenders for their offence to president or governor. That is known as pardoning power of president or governor. Maximum number of petition were accepted by the president. However, When president rejects any mercy petition then the offender has the right to file curative petition.

 

Way Forward:

  • Capital punishment in India should be replaced by reformative theorye. Prisoners should be educated such that they come to be a normal human being who earns in a legal way than using illegal means
  • Apart from abolition of death penalty, Law Commission recommended that police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government

With expanded and deepened contents and horizons of the Right to life and strengthened due process requirements in the interactions between the State and the individual, prevailing standards of constitutional morality and human dignity, it is felt that time has come for India to move towards abolition of the death penalty and the first step towards it can be abolition of the death penalty for all offences other than terrorism related offences. 

 

Q: The time has come to review the need for the death penalty as a punishment, especially its purpose and practice. Examine. (15M)