Figure 1. Execution by Hanging. Source: Pexels.
Death penalty is a state sanctioned killing of a person as retribution or punishment for a serious crime committed by him or her. It is also known as ‘capital punishment’.
Indian Law context
In India, the punishment of death penalty can be traced back to the Indian Criminal Procedure Code of 1898 where the default punishment for murder was the death penalty. In those cases, the judge had to stipulate reasons in case life imprisonment was implemented. Back then, death penalty was a norm and life imprisonment was an exception. The Code was amended in 1955 and it was reversed to the imposition of death penalty only in special cases. With the re-enactment of the Indian Criminal Procedure Code in 1973, the provision 354(3) mandated that the judges postulated the special reasons when implementing the death penalty punishment. The mode of execution, in India, is hanging by neck till death.
Evolution by judiciary
In 1973, the capital punishment was challenged as being unconstitutional in the case of Jagmohan Singh vs. State of Uttar Pradesh on the grounds of violation of right to life, as the Criminal Procedure Code provided only for deciding the guilt and not the procedure for awarding the death sentence. There was no procedure to decide which cases were to be implemented with the death sentence. The death penalty was held to be constitutional as it was to be given through a procedure established by law. The judges had the power to choose between capital punishment and life imprisonment which was to be exercised on the basis of the facts and circumstances of each particular case.
The Indian Constitution grants the President and the appellate courts the power to commute the punishments of death penalty. The mere existence of this parameter in the constitution itself suggests that the death penalty is duly recognised by law and is not unconstitutional. In India, the capital punishment is considered as the maximum possible punishment to be rendered only in the ‘rarest of rare cases’ of Murder. The rarest of rare case doctrine was developed in the landmark case of Bachan Singh vs. Union of India (1980), where the five judge bench propunded the principle of death penalty known as ‘rarest of rare’ doctrine. The scope of the discussed punishment was restricted to the cases in which the commission of murder is considered to be exceptionally brutal and heinous. For example- Shabnam Ali, a 38 year old Indian woman is currently on death row (waiting for execution) for killing seven members of her family, including her 10 month old nephew.
Figure 2. While the death sentence goes for scrunity through the court’s hierarchy via appeal, the death row convict is in prison living the most traumatic of his experiences. Source: Unsplash.
However, the Bachan case example suggests that the death penalty is not to be imposed in every exceptionally brutal murder case but only in the ‘few cases’ of that category only after the judges have balanced the conflict between the aggravating circumstances (crime committed) and the mitigating circumstances (background of the accused). The appeal in the appellate courts has safeguarded the interest of the accused at each level as the given punishment of the death penalty by trial court is scrunitized and checked if the judge has exercised the power judicially and not arbitrarily. Even after review through the hierarchy of courts, the accused has the right of filing a mercy petition to the head of the executive, the President of India, seeking relief from the punishment in the light of remission or commutation.
262nd Indian Law Commission report (2015)
The death penalty was first imposed in order to prevent citizens from committing certain crimes. For example, during the early period of India’s Independence, this particular type of punishment served as an inhibitor against the proliferation of violence and criminality to prevent people from committing murder. It was only in the case of Mithu vs State of Punjab that the mandatory death penalty under section 303 (Indian Penal Code 1860) was declared to be unconstitutional. Section 303 mandated capital punishment for the punishment of murder committed by an accused serving the life imprisonment sentence. In today’s society, the socio, political and legal system has evolved and maintaining death penalty to create deterrence seems a futile approach. Adding to that, there is no data to actually portray that the death penalty provides better deterrence than life imprisonment. In India, the issue of death penalty was discreetly discussed in the 2015 Indian law commission report where the issues of the role of deterrence, the universal application of implementation guidelines and the question of justice towards the victim were analysed. It was argued that in order to uphold retributive justice, the idea of rehabilitation of the human race has been suspended. The resorative and rehabilitative aspects of justice have been lost. India is not unknown to wrongful convictions. One example of this is the famous Nambinaryan case where the Kerala government and the police officials in India spoiled a scientist's career on the charges of espionage. There are also plenty of infamous cases that were led to wrongful convictions due to the political interference, over-streched police investigation, poor prosecution and poor legal aid by the administration.
Figure 3. The 262nd Law Commission report was a much progressive report. Source: Pexels.
What if a sentence of death penalty is implemented due to some of the aforementioned fallacies of the system? What if the execution has taken place and then, the executed convict turns out to be innocent and a mere scapegoat? Could that be reversed?
The Indian apex court imposed 60 death penalty punishments from 2000 to 2015,15 out of which turned out to be false accusations. Are we then putting at risk the lives of our people?
Furthermore, the conclusion of the 262nd Law Commission report (2015) suggested the abolition of the capital punishment except in cases of terrorism and war-incitement. In those two cases, the capital punishment is considered necessary for the preservation of the national security.
International Forums
Today, 108 countries of the world have abolished the practice or law of death penalty in their country. International organisations and various conventions like the Amnesty International and the United Nations have been working towards general suspension or abolition of the death penalty worldwide. The International Forum also speaks up for the human rights of all the individuals which include the rights of the people on death row or the people who have committed the most appalling crimes. The reason behind their fight for the elimination of such practices is the idea that retributive justice in a way allows in a way the vengeance to be satisfied. It is not serving the jurisprudential idea of justice but unfortunately propagating the principle of causing proportional harm as a reprisal. Is that justice?
Time and time again, the Supreme Court of India has argued in relation to the evolved legal principle of Criminal Justice system in India, that- “Life Imprisonment is the rule and Death Penalty is the exception.”
The most recent execution in the country was of the convicts of the 2012 Rape Case, which had shaken the whole nation. The perpetrators had raped and inserted a rod in the vaginal cavity of the victim which caused serious injuries to her intestine and led eventually to her death. The exceptionally heinous crime was under the ambit of the ‘rarest of rare crimes’. The rapists were sentenced to death.
Figure 4. Prisoners on death row are treated differently in prisons. They are subjected to humility, torture by other jail inmates. Sometimes, they are forced to live in solitary confinement. Source: Pexels.
While everyone in the world wanted the prisoners to be given the death penalty, there was a defence lawyer, Mr Ajay Prakash Singh who was providing them the best legal aid possible. He was constantly arguing against their hanging till each of his client had exhausted all his legal options. He was severely rebuked by the whole country for his acts, but the principle of free legal aid laid down in the constitution was served beautifully. He was defending the accused because the Indian constitution renders it to be the duty of the lawyer of an accused (Article 22) to defend him in all the possible ways in order to protect his rights under Article 21 (personal life and liberty). When the media trial has already convicted the individual, the only way to meet the ends of justice was to be defended impartially and fairly.
Figure 5. Death row convict waiting for this time of execution, which is yet not decided. Source: Pexels.
The lawyer was serving to the extent of jurisprudence of capital punishment which argues that since death is irrevocable, the authorities and law officers should wait for the convict to exhaust all legal options available to him before carrying out the sentence.
Also, it is believed that the notion of “an eye for an eye” cannot be a constitutional mandate for any criminal justice system as it contrdicts the idea of the social and personal improvement of the human race. The law empowers the judge with the discretionary power to not render death penalty sentence if there is a chance of rehabilitation. Now, even if a judge is a human being, he can err too. What if this error brings an end to someone’s life who is innocent? Does the criminal justice system have to bear the blot?
On this ongoing debate regarding the abolition of the death penalty, the countries should take stance with the legal principle in mind- “Let a hundred criminals be aqcuitted but no innocent person should be punished or convicted.”
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