DEATH PENALTY IN INDIA

IN NEWS:

• The number of prisoners on death row at the end of 2021 stood at 488, the highest in 17 years, according to the Death Penalty in India Report.

CAPITAL PUNISHMENT:

• Capital Punishment is the most severe form of punishment. It is awarded for the most heinous, grievous and detestable crimes against humanity.
• History of human civilization reveals that during no period of time capital punishment has been discarded as a mode of punishment.
• After independence, India retained several laws put in place by the British colonial government on capital punishment, which included the Code of Criminal Procedure, 1898 and the Indian Penal Code, 1860.

LAWS ON CAPITAL PUNISHMENT IN INDIA:

• Article 21 of the Constitution:
  • Article 21 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 procedure established by law.
  • This means that if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.
• Powers of President & Governor:
  • Under Article 72, President can pardon, reprieve, respite, remit, suspend or commute a death sentence. Governor is also empowered to commute death sentences under article 161.

• Provisions in Indian Penal Code:

• Provisions in Code of Criminal Procedure, 1973:
  • The CrPC of 1973 introduced the possibility of a post-conviction hearing on sentence, including the death sentence. Also, judges need to provide special reasons for why they imposed the death sentence.
• Other laws:
  • The Defence of India Act, 1971
  • The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989
  • The Unlawful Activities Prevention Act, 1967
  • The Army Act, 1950
  • The Narcotics Drugs and Psychotropic Substances Act, 1985
  • Andhra Pradesh Criminal Law (Amendment) Act 2019 (Disha act)

STAGES IN DEATH PENALTY CASES:

1. Award of death penalty by the court of sessions:

• All trials pertaining to capital cases falling under ordinary criminal law are conducted in the Court of Session, the highest criminal court in a district.
• If the Court of Session awards the death sentence, the case is mandatorily referred to the concerned High Court for confirmation of the death sentence.

2. Confirmation hearing before the state High Court:

• The High Court may confirm the death sentence, annul the conviction, order a new trial on the same or amended charge or acquit the accused person. It also certifies the case to be fit for appeal.

3. Proceedings before the Supreme Court:

• Under Article 134, Supreme Court has appellate jurisdiction on decisions of High Court related to death sentence. Under Article 136, the Supreme Court in its discretion may grant special leave to appeal from any judgment, sentence or order. Also, the Court can take up review and curative petitions.

4. Request for Pardoning death sentence is filed before the President:

• Convicted persons often take the course of mercy petitions to seek pardon and commutation of death sentence.

5. Writ petition after the rejection of request for pardon:

• Court may review whether relevant materials were examined by the Executive while exercising the power to grant pardon. But the merits of the Executive’s decision or manner of execution of the power to grant parson cannot be scrutinised.

JUDICIAL GUIDELINES ON DEATH PENALTY:

• Bachan Singh v. State of Punjab, 1980:
  • The Supreme Court upheld the constitutional validity of the death penalty. It also held that the normal sentence for murder should be imprisonment for life, and that only in the rarest of rare cases should the death penalty be imposed.
• Jagdish vs State of Madhya Pradesh (2009):
  • Supreme Court ruled that the government’s failure to decide a mercy plea within a reasonable timeframe can be a ground for commuting the death penalty to life imprisonment.
• Shatrughan Chauhan v. Union of India (2014)
  • A set of guidelines for safeguarding the interest of the death row convicts were framed by the Supreme court. This includes:
    • No solitary confinement prior to rejection of mercy petition by the President
    • The prisoner is entitled to legal aid under Article 21 until his last breath and rejection or no rejection by the President of his plea does not take away that right.
    • An elaborate procedure in placing the mercy petition before the President and proper communication in case the petition is rejected.
    • Minimum 14 day notice for execution
    • Regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need.
    • Prison authorities should facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.

ARGUMENTS FAVOURING DEATH PENALTY:

• Deterrence:
  • Proponents of capital punishment believe the death penalty's most significant benefit is deterring potential criminals from committing murder.
• Proportional to the crime:
  • Justice demands that courts should impose punishment befitting the crime. Hence, proponents argue that such harsh penalty is needed for criminals who have committed the worst crimes like terrorism and rapes.
• Moral argument:
  • Supporters of the death penalty believe that those who commit heinous crimes have forfeited the right to life. Furthermore, capital punishment is a just form of retribution, expressing and reinforcing the moral indignation of law-abiding citizens.
• Brings closure:
  • Death penalty can bring about closure and solace to victims’ families and help them to move on from the ordeal. Death penalty also prevents re-offending of crimes.
• Aids investigation forces:
  • Where the possible sentence is death, the prisoner has the strongest possible incentive to try to get their sentence reduced. Hence, they would be more willing to cooperate with the investigation.
• Saves public money:
  • Proponents argue that death penalty would save public money which would otherwise be spend on a convict’s healthcare, education and rehabilitation.

ISSUES SURROUNDING DEATH PENALTY:

• Moral issue:
  • Every person has the right to live and death penalty violates this right.  
• Questionable effectiveness:
  • The main goal of death penalty is to act as a deterrence. However, there is no conclusive proof that death penalty acts as a better deterrence than the threat of imprisonment.
• Global aversion:
  • Countries are increasingly abolishing capital punishment. Also, several resolutions of the UN General Assembly have called for a moratorium on the use of the death penalty.
  • Eg: Over 140 countries have abolished the death penalty, Papua New Guinea being the latest.
• Execution of the innocent:
  • Execution is the ultimate, irrevocable punishment. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.
• Failure of the state:
  • State is an institution created by man to protect life. By giving death penalty for crimes, the state finds an easy way to escape from its duties.
  • Also, the authorities in some countries use the death penalty to punish political opponents.
• Retributive vs Reformative justice:
  • The laws and precedents believe in reforming the convicts and regulating them to release back into the society. However, death penalty is only a sanitized form of vengeance. The facet of reform and rehabilitation is nullified by the prospect of capital punishment.
• Disparate impact on vulnerable groups:
  • The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds.
  • Eg: As per the Death Penalty India Report 2016, 75% of all the prisoners sentenced to death in India belong to socio-economically marginalised communities, including Dalits, OBCs and religious minorities. It also found that over 62 % of them had not completed secondary school, and around 23% had never been to school.
• Inordinate delay:
  • Due to various reasons, execution of death penalty is inordinately delayed by years, often resulting in commutation of sentances. This creates mental agony for the convicts, victims, and their families besides undermining people’s faith in the judicial system.
• ‘Rarest of rare’ principle:
  • It is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been applied. Also, death penalty is awarded in an increasing number of cases by lower courts.
• Cost of death penalty:
  • Many people believe that the death penalty is more cost-effective than imprisonment for life. In reality, studies have found that death penalty’s complexity, lengthy trials and appeals make it much more expensive than imprisonment.

WHY THE DELAYS:

• Administrative delays:
  • The executive has to follow several rules and procedures and scrutiny of voluminous materials while deciding on mercy petitions. These rules are not strictly adhered to, leading to inordinate delays and judicial scrutiny over mercy petitions.
• No definite timeframe:
  • There is no time limit for deciding mercy petitions by the executive. Similarly, there is no time limit for filing curative petitions.
  • For example, in the Nirbhaya case the convicts continued to file curative petitions after the issuance of death warrants creating inordinate delay.
• Misuse of provisions:
  • All avenues of law are provided to a convict to save themselves from the gallows. However, people have been misusing the technicalities of the law to repeatedly file curative and mercy petitions.
  • Eg: In cases involving multiple death row convicts, execution of penalty of a convict is delayed merely because any of the co-convicts has initiated pardon proceedings.

CONSEQUENCE OF THE DELAY

• On the victim:
  • Justice delayed is justice denied. The victim and the rest of the society might lose confidence in the criminal justice system. It also induces significant mental stress on them.
• On the convict:
  • Mental agony resulting from the delay in execution is torturous and inhumane. It takes away the right of the convict to die with dignity as provided under article 21. It will have a dehumanising effect on the convict.
• On the society:
  • The objective of deterrence cannot be achieved with a delayed justice especially regarding crimes against women, murder etc.
  • In 2014, the Supreme Court ruled that inordinate and unreasonable delay in execution of death sentence is violative of Right to Life under article 21.

WAY FORWARD:

• Limited imposition of death penalty:
  • Judges should not be swayed in favour of death penalty merely because of the dreadful nature of the crime and its harmful impact on the society. They should equally consider the mitigating factors in favour of life imprisonment.
• Create timelines:
  • There should be a time limit in deciding mercy petitions by the President/Governors and for filing curative petitions. Strict adherence to time limits would help in increasing the efficiency of judicial process, without compromising legal avenues available for the convicts.
• Reform criminal justice system:
  • Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system.
  • Extra read: https://www.ilearncana.com/details/Reforming-the-Criminal-Justice-System/902
• Rethink on capital punishment:
  • The Law Commission in its 262nd Report has called for the abolishment of the death penalty in all cases except for those relating to terror cases.

PRACTICE QUESTION:

Q. Critically analyse the relevance of capital punishment in today's Indian society?