should-the-death-penalty-be-abolished

Context: Three of the four death row convicts in the Nirbhaya gangrape case approached the International Court of Justice (ICJ), seeking a stay on the execution of their death sentence.

  • The International Court of Justice, sometimes called the World Court, is the principal judicial organ of the United Nations.

About Death penalty: The death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. In India, it is awarded for the most serious of crimes.At the time of Independence, India retained several laws put in place by the British colonial government, including capital punishment for various crimes under the Indian penal Code (IPC).

Data: As per Project 39A of National law University, India has executed around 755 persons since Independence. 

  • The report said that Uttar Pradesh carried out the highest number of executions at 366. 
  • Also, the Bareilly District Jail in the State has the distinction of carrying out 130 executions, the highest of all jails in the country, with the last execution being carried out on September 24, 1988.

Recent executions

  • In July 2015, Yakub Memon was executed by hanging in Nagpur Central Jail for his role in the 1993 Bombay bombings.
  • Afzal Guru, who was convicted for his role in the 2001 Parliament attack, was executed in February 2013.

The process

  • Once the Sessions Court has awarded the death sentence to a convict in a case, it must be confirmed by the High Court
  • Even after that, the convict may prefer an appeal to the Supreme Court.
  • If this also fails the accused has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State. 
  • Detailed instructions regarding the procedure to be observed by the states for dealing with petitions for mercy from or on behalf of convicts under sentence of death and with appeals to the Supreme Court and applications for special leave to appeal to that court by such convicts are laid down by the Ministry of Home Affairs.
  • About death warrant proceedings:  It is a kind of notice issued by a court announcing the time and the place of the execution for a convict, who has been awarded a death sentence.
    • They take place after the person on death row has exhausted all legal remedies available — a review against the SC verdict, a subsequent curative petition if the plea is rejected, and a mercy plea before the President of India.
    • The convict 'be hanged by the neck until he is dead' is a phrase from the second of exactly three sentences printed on the Code of Criminal Procedure's Form No. 42, popularly known as the Black Warrant, or the death warrant.

Constitutional,  statutory and international provisions about the death penalty

  • Article 21 of the Constitution says: No person shall be deprived of his life or personal liberty except as according to the procedure established by law.
  • Articles 72 and 161 contain, apart from the judicial power, discretionary power for the President and governor to interfere with the merits of the matter; however, there is a limited authority for judicial authorities to review it and it must ensure that the President or the governor has all relevant documents and material before them.
  • The Indian Penal Code, 1860:  Some of these capital offences under the IPC are punishment for criminal conspiracy (Section 120B), murder (Section 302), waging or attempting to wage war against the Government of India (Section 121), abetment of mutiny (Section 132), dacoity with murder (Section 396) and others. 
    • Apart from this, there are provisions for the death penalty in various legislations like the NDPS Act, anti-terrorism laws etc.
    • In 1955 the Parliament repealed Section 367(5) of Code of Criminal Procedure (CrPC), which until then mandated the courts to record reasons where it decided not to impose a sentence of death for offences where the death penalty was an option. 
    • The CrPC was re-enacted in 1973 where several changes were made, notably to Section 354(3) mandating judges to provide special reasons for why they imposed the death sentence.
  • In the case of Jagmohan Singh v. State of U.P which was the first case dealing with the question of constitutional validity of capital punishment in India, the SC upheld the constitutionality of the death penalty and held that deprivation of life is constitutionally permissible for being recognized as a permissible punishment by the drafters of our Constitution.
  • Bachan Singh vs State of Punjab, the Court held that capital punishment will only be given in rarest of rare cases.
  • In Santosh Kumar Bariyar (2009), the SC took note of an earlier decision in the Swamy Shraddananda case in which the court revealed that sentences of death penalty often depended upon “the personal predilection of the judges constituting the Bench”. 

International scenario

  • Internationally, countries are classified on their death penalty status based on four categories: abolitionist for all crimes, abolitionist for ordinary crimes, abolitionist de facto, and retentionist.
  • 58 countries including India, China, Indonesia and the United States are regarded as retentionist, who still have the death penalty on their statute book and have used it in the recent past. 
  • Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR) says:  “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.”
  • The debate on the death penalty: India is one of only 58 countries that have the death penalty on their statute book and have used it in the recent past while the neighbouring country Nepal officially abolished the death penalty in 1990.
  • Arbitrariness in death penalty sentencing:  Unfortunately, there is no framing of any requirements that guide the collection, presentation and consideration of mitigating factors
  • Very often, barely any mitigating factors are presented on behalf of death row prisoners; if they are, they are of poor quality. Judges are often left only with information concerning the crime to determine the punishment.
    • In the Ravji case (1995) the court said that it is the nature of the crime, and not the factors relating to the accused that are relevant to determine the punishment. This was diametrically opposite to the reformative jurisprudence in Bachan Singh. 
    • In M.A. Antony v. State of Kerala, the Supreme Court reversed its own finding involving the murder of six relatives of the accused and commuted the death penalty factoring the ‘lack of evidence’ to show that the convict was a hardened criminal or that he was beyond reform.
    • The top court acknowledged in the confessional verdict in Santosh Kumar Bariyar (2009) that seven of its death penalty judgement were contrary to the ‘rarest of rare’ doctrine of bacchan Singh verdict.
    • Curiously, 14 retired judges wrote a letter to the President in 2012 requesting him to commute the death sentence of 13 death convicts, as their convictions were erroneous. 
    • A bench headed by Chief Justice Sathasivam in January 2014 commuted the death sentence of 15 convicts. 

 

Death penalty should not be abolished

Death penalty should be abolished

In 1967, the 35th Report of the Law Commission had argued for retention of capital punishment in India.

The Law Commission, in its 262th Report, highlighted that the death penalty does not serve the penological goal of deterrence any more than life imprisonment. 

The report stated that retribution should not be understood as an “eye for an eye”, but in its refined form as public denunciation of crime. 

The 262th Report had said that retribution has an important role to play in punishment. However, it cannot be reduced to vengeance.

A major reason stated in the report for the retention of capital punishment was the unique condition of prevalent society of India.

Capital punishment fails to achieve any constitutionally valid penological goals, the Law Commission, in its 262th Report had said.

It also stated that there are a category of individuals who are “cruel and wicked”, and are not capable of reform.

The commission had stated that the constitutional regulation of capital punishment attempted in Bachan Singh case has failed to prevent death sentences from being “arbitrarily and freakishly imposed”.

It acts as a deterrence against such heinous crimes.

The commission had put a case for abolition of death penalty, except terrorism-related offences and waging war.

Project 39A of the National Law University, Delhi said that the prisons and other government departments do not have accurate data of the people they have executed.

The Supreme court has noted that it is difficult to distinguish cases where the death penalty has been imposed from those where the alternative of life imprisonment has been applied.

Bachan Singh verdict said that the judges should never be bloodthirsty.

More importantly, the Constitution Bench warned that the judges should not be “oracles or spokesmen of public opinion”. It advocated for an accused-centric approach based on the reformability of the individual. 

But even the Nirbhaya verdict expressly referred to collective conscience as a reason for its conclusions.

No human-made system can ever claim to be fault-free and immaculate.Globally, among the members of the UN, more than 135 countries have abolished the death penalty in law or in practice. The preference is for reformative justice and humane alternatives.

Image Source: New Indian Express