Death penalty should be abolished : an ongoing debate

February 6, 2022

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This article is written by Sujitha S, from the School of Excellence in Law, Chennai. This article deals with the contemporary legal issue of the abolition of the death penalty in India. Further, it briefly discusses the various arguments, alternative punishments, the relevant legal framework, and the validity of the punishment in India.

This article has been published by Shoronya Banerjee.

Introduction

In light of the circumstances brought forth by the twenty-first century, the death penalty debate is the most socially important topic. In India, the death penalty is a fundamental aspect of the criminal justice system. With the growing prominence of the human rights movement, the death penalty’s mere existence is being questioned as unethical. The 262nd Law Commission report has been widely hailed as a “historic,” “seminal,” “decisive,” and, in a more hyperbolic tone, a “paradigm shift” in the Indian death penalty jurisprudence. But what progress has it achieved by advocating revisions to the language of exception? With terrorism cases, the report replaces the rarest of rare criteria as the exception to death penalty repeal. In recent years, the death penalty issue has garnered considerable attention. While proponents of the death penalty argue that it should only be applied to the most egregious offences, human rights advocates argue that the death penalty violates an individual’s basic human rights.

The death penalty is not a novel concept; it has existed since the beginning of civilization. The death sentence (typically involving beheading the individual) was imposed by the king in ancient times for the express non-compliance of any person with any command issued by the king or with any moral obligation imposed on that person. It was eventually inserted into the Indian Penal Code of 1860, resulting in its legal incorporation, and it has been lawful in India ever since. In the twentieth century, there was a campaign to abolish the death penalty, which led to numerous states following suit and abolishing the death sentence. However, the death penalty has remained in place in India. This has sparked a lot of discussion and controversy, with human rights advocates presenting compelling arguments for the death penalty’s elimination.

Law Commission of India’s report

In its 262nd Report (August 2015), India’s Law Commission proposed that the death penalty be abolished for all crimes excluding terrorism-related offences and war. The report’s full recommendations are as follows:

The Commission urged that the government should implement measures such as police reforms, witness protection schemes, and victim compensation schemes as soon as possible.
The path of our own jurisprudence: From 1955, when no special reasons were required for imposing life imprisonment instead of death, to 1973, when special reasons were required for imposing the death penalty, to 1980, when the death penalty was limited to the rarest of rare cases by the Supreme Court – demonstrates the path we must take.
The Commission felt that the time had come for India to move towards abolition of the death penalty, informed by the expanded and deepened contents and horizons of the Right to Life, strengthened due process requirements in interactions between the state and the individual, prevailing standards of constitutional morality and human dignity.
Despite the fact that there is no acceptable penological reason for treating terrorism differently from other crimes, there is often concern that abolishing the death sentence for terrorism-related offences and war will have an impact on national security.
Given the legislators’ concerns, the Commission saw no reason to wait any longer to take the first step toward abolishing the death sentence for all offences other than terrorism-related offences.

Death penalty under IPC

The death penalty, also known as capital punishment, is the harshest form of punishment available under any criminal law in existence anywhere in the world. The legal method through which the state exercises its power to take an individual’s life is known as capital punishment. “No individual shall be deprived of his life or personal liberty except pursuant to the procedure established by law,” says Article 21 of the Indian Constitution, which guarantees every citizen the fundamental right to life. This means that your right to life will never be taken away from you until you follow the legal system, which means that the state can take away your life if it sees fit through the legal process. Not all crimes are punishable by death; in fact, most agencies do not seek capital punishment; rather, it is reserved for the most egregious of offences.

Eleven offences mentioned below if performed inside the territory of India are punishable by death, according to the Indian Penal Code and other Acts:

Section 120B : Being a party to a criminal conspiracy to commit a capital offence.
Section 121 : Waging, or attempting to wage war, or abetting waging of war, against the Government of India.
Section 132 : Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny.
Section 194 : Giving or fabricating false evidence with intent to procure a conviction of a capital offence.
Sections 302, 303: Murder.
Section 305 : Abetting the suicide of a minor.
Section 364A: Kidnapping, in the course of which the victim was held for ransom or other coercive purposes.
Section 376A: 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
Section 396: Banditry with murder, in cases where a group of five or more individuals commit banditry and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.
Part II, Section 4 of Prevention of Sati Act, aiding or abetting any act of Sati such as:

Any inducement to a widow to have her body burned or buried alive alongside the body of her deceased husband, or with any object associated with the husband, regardless of whether she is in a fit state of mind or is suffering from intoxication, or any other cause impeding her free will.
Convincing a widow or woman that the act of Sati will bring spiritual advantage to her or her departed spouse or relative, or to the family’s overall well-being.
Encouraging a widow or woman to stick to her decision to commit Sati, thus inciting her to do so.
Engaging in any procession in conjunction with the commission of Sati, or assisting the widow or woman in her choice to commit Sati by transporting her to the cremation or burial cemetery with the body of her departed spouse or relative.
Being present at the location where Sati is committed to such a commission or any ceremony associated with it as an active participant.
Hindering or impeding the widow or woman from escaping being burned alive or buried alive.

31A of the Narcotic Drugs and Psychotropic Substances Act,1985 – Drug trafficking in cases of repeated offences: Regardless of Section 31, if any person who has been sentenced for the commission of, or attempt to carry out, or abetment of, or criminal scheme to carry out, any of the offences culpable under Section 27 of the NDPS Act, including offences involving the business amount of any opiate tranquiliser or psychotropic substance, is indicted in this manner for the commission of, or attempt to carry out, or abetment of, or criminal scheme to carry out;

Any taking part in the production, manufacture, ownership, transportation, importation into India, exportation from India, or transhipment of opiates or psychotropic substances.
Any exercise specified under the said Article, that is financed, legally or by implication, shall be punishable with death.

Death penalty : the international framework

Despite the fact that the death penalty was still in practice in the majority of countries in the early 1960s, the drafters of the International Covenant on Civil and Political Rights (ICCPR) have already begun efforts to have it abolished in international law.
Although Article 6 of the ICCPR allows for the use of the death penalty in restricted circumstances, it also states that nothing in this Article shall be invoked to delay or hinder any State Party to the present Covenant from abolishing capital punishment.
The UN Economic and Social Council enacted Safeguards in 1984, ensuring that persons facing the death penalty have their rights protected.
The ICCPR’s Second Optional Protocol aims to abolish the death penalty.
The UN General Assembly ratified the Second Optional Protocol to the ICCPR in 1989, 33 years after the adoption of the Covenant itself, giving abolition a powerful fresh boost. Members of the Protocol’s signatories pledged not to execute anyone within their domains.
Resolutions of the United Nations General Assembly: The General Assembly urged states to observe international standards that protect the rights of persons facing the death sentence in a series of resolutions enacted in 2007, 2008, 2010, 2012, 2014, 2016, and 2018, and to gradually reduce the number of offences punishable by death.

Arguments against the abolition of death penalty

Prevention of future crimes

To begin with, the death sentence will prevent future offences. Future crimes may be discouraged by imposing the worst punishment for the most terrible of offences. This has a profound effect on human psychology. When a person knows he is likely to be severely penalised for specific conduct, and the cost of that behaviour much surpasses the reward, it is self-evident that he will not commit that act.

Ensuring justice

Second, the death penalty ensures that justice is served. The Preamble to the Indian Constitution aims to achieve, among other things, justice for all Indian citizens. The ways by which such justice can be achieved are crucial. Isn’t it only just that a person who has committed the most terrible of crimes, who poses a threat to society as a whole, who has no repentance, no ounce of humanity left in them, be sentenced to death? What rights are these offenders supposed to have, according to human rights advocates? What about the citizens’ trust in the justice system to ensure that a person is punished proportionately to the offence that he or she has committed? These questions clearly establish a foundation from which the elimination of the death penalty is viewed with severe scepticism.

Judicial reasoning

Third, the death penalty is not imposed arbitrarily. The death sentence in India is not imposed on the basis of no evidence or without any logic or reasoning. To begin with, as previously indicated, capital punishment is only applied in the rarest of circumstances. Even if the death sentence is carried out, the convict has the right to make a mercy petition, or the death sentence may be modified to life imprisonment owing to undue delay. The executive may launch a separate investigation and request new evidence after receiving the mercy petition. If new material is revealed, that is, information that is not included in the judicial record of the case, the executive may approve the mercy petition and reduce the convict’s death sentence to life imprisonment.

Furthermore, there are precise objective criteria, established by precedents, that must be met in order for a death sentence to be commuted to life imprisonment.

Bachan Singh v. State of Punjab (1980)

It was argued during the hearing of Bachan Singh’s case that the following conditions may be used as parameters for finding aggravating circumstances that would support the application of the death penalty:

if the murder happened after preplanning and involves extreme inhumanity;
if the murder involves extraordinary depravity; or
if the murder of army men or any public servant was committed—

while such person was on duty; or
as a result of anything done or attempted to be done by such member in the lawful discharge of his duty, if he was such member or public servant, as the case may be, at the time of the murder, or had ceased to be such member of a public servant; or

If the victim was a person who had acted in the legitimate exercise of his duties under Section 43 of the Code of Criminal Procedure 1973, or who had provided assistance to a Magistrate or a police officer who had demanded or required his support under Sections 37 and 129 of the same Code.

It was also recommended that the court, in exercising its discretion, examine the following factors as mitigating factors for granting the lower punishment of life imprisonment.

The offence was committed when the accused was suffering from severe mental or emotional instability;
The age of the accused, If the accused is young or old, he shall not be sentenced to death;
The likelihood that the accused would not commit criminal acts of violence that would pose a continuing threat to society;
The likelihood that the accused can be reformed;
That the accused believed he was morally permissible in committing the offence in the light of facts and circumstances of each case;
That the accused acted under the duress of another person’s superiority;
That the accused’s condition revealed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

In the case of Machhi Singh and Others v. the State Of Punjab (1983), the Supreme Court established certain standards for the imposition of the death penalty. The following were the guidelines:

Except in the most serious circumstances of extreme culpability, the death sentence is not required.
Before deciding on the death penalty, the circumstances of the ‘offender’, as well as the circumstances of the ‘crime,’ must be considered.
The death penalty is an exception rather than the norm. To put it another way, a death sentence must be imposed only when life imprisonment appears to be an insufficient punishment in light of the relevant circumstances of the crime, and only if the option of imposing a life sentence cannot be exercised conscientiously in light of the nature and circumstances of the crime and all relevant circumstances.
Before exercising the option, a balance sheet of aggravating and mitigating circumstances must be drawn out, with the mitigating factors given full weightage and a just balance created between the aggravating and mitigating circumstances.

However, in order for a court to apply these guidelines, it must first ask and answer the following two questions:

Is there something unusual about the crime that makes a life sentence insufficient and necessitates the imposition of a death sentence?
Are the circumstances of the crime such that there is no alternative but to impose a death sentence even after giving maximum weight to the mitigating circumstances that speak in the offender’s favour?

And the court must evaluate if the case fits into the category of “rarest of rare case” and so warrants the death penalty, based on the circumstances of the case and the responses received to the questions given.

Human rights

The possibility of a life-sentenced prisoner escaping is not unknown in Indian prison history. In the context of this situation, the question of society’s overall safety arises. Under the guise of human rights, a convicted criminal’s potential threat to society cannot be avoided. Furthermore, it is absurd to grant “human” rights to criminals who have lost any sense of humanity. This is especially true for offenders who are unable to be reformed. These offenders do not have a right to life because of the horrible acts they have done, which put other people in danger.

Question of morality

While abolitionists argue that it is unethical for the state to take a person’s life, the same argument may be made for the opposite. It implies that the presence of capital penalty implies that the state accords individual dignity to prisoners by considering them as individuals capable of choosing their own paths and accepting full responsibility for their conduct. If capital punishment is abolished on the grounds of immorality, it is equivalent to treating criminals as animals who lack morality and must be absolved for even the most horrible crimes they have committed.

Arguments in favor of the abolition of death penalty

Execution of innocent people

Innocent individuals have been executed in the past and will continue to be executed in the future. No matter how advanced a legal system is, it will always be vulnerable to human errors. Between 2000 and 2014, the Supreme Court and high courts acquitted a fifth of individuals sentenced to death by trial courts. That’s 443 individuals who were sentenced to death but were later determined to be innocent of all accusations.

Arbitrariness

The possibility of the death penalty being applied arbitrarily cannot be ruled out. The death sentence is frequently used disproportionately on the poor, minorities, and members of racial, ethnic, political, and religious communities. According to the National Law University Delhi’s Death Penalty India Report 2016 (DPIR), approximately 75% of all convicts sentenced to death in India are from socio-economically underprivileged categories, such as Dalits, OBCs, and religious minorities.

Inhumane

Human rights and dignity are incompatible with the death penalty. The death sentence is a violation of the right to life, which is the most fundamental of all human rights. It also infringes on the right not to be tortured or subjected to other brutal or degrading treatment or punishment. Furthermore, the death penalty degrades the basic dignity of every human being.

Deterrence

The death sentence does not have the deterrent effect that its supporters claim it does. “There is no solid proof of the death penalty’s deterrent value,” the United Nations General Assembly has stated (UNGA Resolution 65/206). It’s worth noting that the effectiveness of the death penalty in preventing crime is being seriously questioned by a growing number of law enforcement experts in many retentionist states.

Public opinion

The public’s support for the death penalty does not necessarily imply that the state has the authority to take a human being’s life. There are unmistakable historical precedents where majorities of people supported terrible human rights atrocities, only to be roundly denounced later. Leading people and politicians have a responsibility to emphasise the incompatibility of capital punishment with human rights and dignity. It is important to emphasise that popular support for the death sentence is intrinsically tied to people’s desire to be free of crime. There are, however, more effective methods for preventing crime.

The current scenario in India

Validity of death penalty in India

There are a total of 404 people on death row as of December 31, 2020, with Uttar Pradesh having the highest, with 59, Maharashtra having 45, and Madhya Pradesh having 37. Andhra Pradesh has the fewest death row inmates, with only two. Article 21 of the Indian Constitution guarantees everyone’s fundamental right to life and liberty. It goes on to say that no one’s life or personal liberty can be taken away from them unless they follow a legal procedure. This has been interpreted legally to suggest that if a procedure is fair and valid, the state can deprive a person of his life by enacting a law. While the central government has stated that the death penalty will remain in place as a deterrent and for those who pose a threat to society, the Supreme Court has also affirmed the constitutional legality of capital punishment in “rarest of rare” circumstances. The Supreme Court upheld the constitutional legitimacy of the death penalty in three cases: Jagmohan Singh v. State of Uttar Pradesh (1973), Rajendra Prasad v. State of Uttar Pradesh (1979), and Bachan Singh v. State of Punjab (1980). It stated that a convict can be sentenced to death if the capital penalty is established in the law and the method is fair, just, and reasonable. This will only happen in the “rarest of rare” instances, and judges should give “exceptional reasons” when sentencing someone to death.

Rarest of rare

The criteria of what constitutes the “rarest of rare” were put down by the Supreme Court in Bachan Singh v. State of Punjab, a landmark decision (1980). The Supreme Court established some broad illustrative criteria, stating that it should be issued only when the alternative of a life sentence is “unquestionably foreclosed.” To reach this conclusion, the court was given complete discretion. The Supreme Court, on the other hand, established the notion of balancing, aggravating and mitigating circumstances. A balance sheet of aggravating and mitigating circumstances in a specific case must be constructed to determine whether justice will be served if a sentence other than death is imposed.

The Supreme Court ruled that two key questions may be asked and answered. First, is there something unusual about the crime that makes a life sentence insufficient and necessitates the death penalty? Second, are the circumstances of the crime such that there is no other option than to inflict the death penalty, even after giving the most weight to the mitigating circumstances that speak in the offenders’ favour.

Mercy petitions

The Indian government’s Ministry of Home Affairs has prepared a “Procedure Regarding Petitions for Mercy in Death Sentence Cases” to help state governments and prison officials deal with mercy petitions presented by death row convicts. In the case of Shatrughan Chauhan v. Union of India (1947), the Supreme Court stated that before deciding on mercy pleas, the Home Ministry considers the following factors:

The accused’s personality (such as age, sex, or mental deficiency) or the circumstances of the case (such as provocation or similar justification);
Cases in which the Appellate Court expressed doubts about the reliability of evidence but still decided on conviction;
Cases in which it is alleged that new evidence is obtainable primarily to determine whether a new investigation is warranted;
Cases in which the High Court reversed acquittal.
Is there a difference of opinion among the High Court Judges that requires a referral to a larger bench?
Evidence consideration in determining responsibility in a gang murder case.
Prolonged inquiry and trials, etc.

When the actual actions of the Ministry of Home Affairs (on whose recommendations mercy petitions are considered) are examined, it is clear that these standards were not followed in many cases. In a number of situations, Writ Courts have looked into how the executive has handled mercy requests. In reality, the Supreme Court considered 11 writ petitions contesting the executive’s denial of the mercy petition as part of the Shatrughan Chauhan case.

Global perspective

In 2007, the United Nations proposed to all of its member countries that the death penalty be abolished for all crimes. India, as well as a number of other countries, including the United States, have rejected this plan.

In 2003, the World Coalition Against the Death Penalty declared October 10th to be International Day Against the Death Penalty. The European Union, the United Nations, and Amnesty International are among the non-governmental and international organisations that support it. Each year, it focuses on a different subject, highlighting concerns such as living circumstances, mental health, poverty, and narcotics, all of which are related to the death penalty.

The death penalty is one of the most controversial issues in the world, and it is a topic that is constantly being debated. Over 70% of the world’s countries have abolished capital punishment in law or practice, according to the Death Penalty Information Center. According to Amnesty International, by the year 2020, 108 countries will have abolished the death sentence in law for all crimes, and 144 countries will have abolished it in law or practice.

In the last ten years, 28 nations have practically abolished the death penalty by not executing anyone; 55 countries still have the death penalty for ordinary crimes.

According to Amnesty International, 1,477 people have been sentenced to death in 54 nations throughout the world. In addition, 483 executions were recorded in 18 nations. China, Iran, Saudi Arabia, Iraq, and Egypt were the countries with the most executions. It is crucial to note, however, that secrecy prevents proper reporting of executions, and hundreds more could be carried out each year.

The following are some of the 55 countries that still use the death penalty: Bangladesh, China, Egypt, Ethiopia, India, Indonesia, Iran, Japan, Nigeria, Saudi Arabia, South Korea, Sri Lanka, Taiwan, and the United State.

Alternative punishments

As a response to challenges presented in death cases, the Supreme Court has enshrined the punishment of “full life” or a life sentence of a set number of years. In Swamy Shraddhanand v. the State of Karnataka (2008), the Supreme Court, in a three-judge bench ruling, provided the groundwork for this developing punishment alternative as follows:

The situation can be viewed from a somewhat different perspective. There are two dimensions to the question of sentence. A sentence can be excessive and unnecessarily severe, or it can be woefully lacking. When an appellant comes to this Court with a death sentence imposed by the trial court and confirmed by the High court, the Court may determine, as it did in this instance, that the case falls just short of the rarest of the rare, and may be hesitant in upholding the death sentence. However, given the nature of the crime, the Court may strongly believe that a sentence of life in prison with remission, which generally works out to a term of 14 years, would be disproportionate.
Furthermore, the formalisation of a distinctive form of sentencing, though for a very small number of instances, will have the significant benefit of having the death penalty on the law book but using it as infrequently as possible, in the rarest of cases.

The observations in the Swamy Shraddhanand case have been followed by the Court in a number of cases, including Haru Ghosh v. State of West Bengal (2009), State of Uttar Pradesh v. Sanjay Kumar (2012), Sebastian v. State of Kerala (2015), and Gurvail Singh v. State of Punjab (2013), where full life or a fixed number of years has been awarded instead of the death penalty.

Other alternatives include

Life imprisonment without parole

Although capital punishment is the toughest form of punishment, a criminal must still be punished for the offence he commits. One of the options may be life imprisonment without parole, which means the offender would be imprisoned for the rest of his life without the possibility of parole, which would allow them to leave the prison only after serving a portion of their term. Prisoners can also be sentenced to an indeterminate length of imprisonment, in which the prisoner is condemned to prison for a set period of time but is only guaranteed release after a review.

Usage of resources towards rehabilitation

Another option is to move resources away from the death penalty and toward rehabilitation programmes or support for both victims and convicts.

Occupation without remuneration

As death penalties are only used in the most extreme circumstances involving the most heinous offences, the punishment should be served equally but not lead to someone’s death. In such instances, the inmates could be hired for low-wage occupations, increasing productivity while also helping the economy in some way. Cleaning roadways, building sites, secretarial work, and other such duties should not be paid. This might be beneficial to both the economy and the government because they would receive free labour, achieving two goals: making criminals face harsher penalties and saving money to invest in health or education sectors.

Conclusion

The concept of capital punishment is centuries old and has been used in every community throughout history. Despite the fact that times have changed and society has progressed, this practice is being carried out in the twenty-first century. The most severe type of punishment for the most heinous crimes, such as murder, rape, waging war, and acts of terrorism, is a capital penalty, which is only applied in the rarest of circumstances. The death penalty is when a person’s life is taken away because of a crime he has committed. Although it is still used in society today, it has been eliminated in the majority of countries.

For years, capital punishment has been a contentious issue not only on a worldwide level but also on a national level in India. As the death penalty is painless and speedy, it serves to preserve resources that might otherwise be wasted or could be employed elsewhere if wrongdoers were just imprisoned or confined behind bars. Given that India’s prisons are currently overcrowded, their basic needs for survival consume a significant portion of the economy. Since convicts have human rights, it is the government’s responsibility to protect them. The primary goal of the death sentence is deterrence, that is, to prevent an individual from committing a similar crime in the future, as well as to deter others from doing so by displaying severe repercussions. There are extremely few opportunities to avoid the repercussions of wrongdoing. The fact that Article 21 of the Indian Constitution, which stipulates, “No person shall be deprived of his life or personal liberty…”, is a contradiction to the approval of a death sentence because taking someone’s life is against Article 21 of the Constitution.

Due to the difficulty of seeking justice in a country like India with so many cases awaiting, there have been instances where innocent persons have been sentenced to death. Rehabilitation is required in addition to the goals of prevention and deterrence. A criminal’s opportunity of rehabilitation is taken away when he or she is sentenced to death. This type of punishment is akin to putting a full halt to an individual’s life. It’s also worth noting that while death penalties should reduce the number of crimes committed, crime rates have risen in recent years, along with the severity of offences. As a result, based on the statistics, the motivation for capital punishment appears to be ineffective.

A sentence like capital punishment should be substituted by alternatives like those stated above in a country like India, where the Constitution protects the human rights of 1.3 billion people. Although capital punishment is terrible, it can also be ineffectual, resulting in the deaths of innocent individuals. Since god gave us life, only god, not the state, has the authority to take it away from us. Taking all of this into account, new appropriate regulations should be created to ensure the successful execution of alternatives to capital punishment, as well as advice from professionals.

References

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