DEATH PENALTY

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Context:

The Death Penalty remains a sensitive issue in India highlighting the struggle to strike a balance between effective crime control and ethical concerns.

About Death Penalty

• The death penalty, also known as capital punishment, is a legal punishment in India.
• The death penalty is governed by various legislation, including the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Constitution.

Background

• The concept of capital punishment has existed since ancient times. Texts such as the Manusmriti mention the death punishment for specific offences.
• During the mediaeval period, various kinds of execution were used, including beheading, hanging, and impalement.
• The British colonial administration established the death punishment in India. Lord Macaulay drafted the Indian Penal Code (IPC) in 1860 to include the death penalty for offences such as murder and waging war against the state.
• The Indian Constitution adopted in 1950 did not abolish the death penalty but did contain safeguards against its arbitrary application.
• In Bachan Singh v/s State of Punjab 1980, the Supreme Court established the "rarest of rare" doctrine that the death penalty should only be applied in severe circumstances.
• Over the last few decades, the number of executions in India has declined. The most recent execution occurred in March 2020, when four men convicted in the 2012 Delhi gang rape and murder case were hung.

International Trends on the Death Penalty ●As of 2023, more than 140 countries had abolished the death sentence in law or practice. These countries consider that the death penalty violates human rights, including the right to life. ●Some countries, including the US, China, Iran, Saudi Arabia, and India, continue to use the death penalty. These countries argue that the death penalty deters significant crimes and is a vital instrument for justice.

Legal Framework of the Death Penalty 

• Under Article 21 of the Indian Constitution, all individuals are guaranteed the right to life and personal liberty.
  • • It says that no one shall be deprived of their life or personal liberty except by the law.
    • This article serves as the foundation for judicial review of the death penalty, ensuring it is carried out purely in compliance with the law and due process.
• Article 72 empowers the President of India to grant pardons, reprieves, respites, or remissions to anyone convicted of an offence. This power also applies to cases involving the death penalty.
• The Indian Penal Code (IPC) 1860 defines certain offences that can result in the death penalty, including murder (Section 302), waging war against the government (Section 121), and some cases of kidnapping and abduction (Sections 364A and 376A).
• The Code of Criminal Procedure (CrPC) 1973 establishes the procedural framework for applying the death penalty. Section 354(5) specifies that the method of execution is hanging.
  • • The CrPC also defines the process for appeals, reviews, and mercy petitions, ensuring that the death penalty is only applied after careful judicial review.
• The Indian Evidence Act of 1872 governs the admissibility of evidence in criminal cases, especially those involving death punishment.
• Protection of Children from Sexual Offences Act (POCSO Act) 2012 imposes severe punishments for sexual offences against minors, including the death penalty.
• Bharatiya Nyaya Sanhita 2023 contains provisions for the death penalty for some horrible crimes, reflecting current legal norms and societal values.

Judicial Procedure of the Death Penalty

• A Sessions Court hears initial trials for offences.
  • • Section 354(3) of the Code of Criminal Procedure (CrPC) requires the court to provide special reasons for granting the death penalty.
• The trial is divided into two stages: conviction and sentencing.
  • • This ensures that the decision to apply the death penalty is decided after carefully assessing all relevant facts.
• The High Court must approve any death sentence imposed by a Sessions Court.
  • • The Court thoroughly examines the case, considering both the conviction and sentence.
• The convict has the right to appeal to the Supreme Court.
  • • The Supreme Court thoroughly reviews before upholding, commuting, or overturning the death penalty.
• After the Supreme Court's decision, the convict has the option to file a review petition, which is an appeal to the Court to reconsider its decision.
• If the review petition is denied, the convict may submit a curative petition, the final legal option available.

Death Penalty India Report by Project 39A ●In 2023, trial courts issued 120 death sentences. ●Uttar Pradesh had the most death row convicts; other states with notable numbers included Jharkhand, Gujarat, Haryana, Madhya Pradesh, and West Bengal. ●Murder cases involving sexual offences accounted for 53.33% of the death sentences passed by trial courts in 2023. ●The completion rate of death penalty confirmation processes in high courts fell by 15% from the previous year. Currently, 488 death row convicts are awaiting judgment from high courts, suggesting ongoing legal proceedings. ●In 2023, the Supreme Court reviewed ten cases but did not uphold any death sentences due to insufficient evidence and police investigations.

Arguments in favour of the Death Penalty

• Supporters claim that the death penalty is an effective deterrence to horrible acts like murder and terrorism.
  • • The fear of receiving the ultimate punishment is believed to deter people from committing such crimes.
    • Scientific evidence on the death penalty's deterrent effect is mixed. Some studies indicate a deterrent effect, while others show no significant impact on crime rates.
• In many societies, like India, there is broad support from the public for the death sentence. It is frequently motivated by a desire for revenge and justice for the victims.
  • • The death sentence is viewed as a tool to give justice to victims' families while also reinforcing societal standards against serious crimes.
    • It is also regarded as a technique for preserving public order and safety.

Arguments Against the Death Penalty

• Critics believe that the death sentence violates the fundamental right to life, as guaranteed by Article 21 of the Indian Constitution and international human rights conventions.
• Many studies have found that the death sentence is no more effective at deterring crime than life imprisonment.
  • • Countries with the death sentence do not always have lower crime rates than those without it.
    • Life imprisonment without parole is sometimes regarded as a more humanitarian and effective alternative to the death penalty.
• The death sentence in India has been criticised for being biased against marginalised communities, such as lower castes, economically disadvantaged people, and members of minority religions.
  • • Wrongful convictions are possible due to errors in the judicial process, such as poor legal counsel, police misconduct, and court errors.
    • The irreversible nature of the death penalty makes these errors more concerning.

Reforms to the Death Penalty ●The Justice Verma Committee (2012) recommended against using the death sentence in rape cases, stating that it is ineffective as a deterrent. The committee highlighted the importance of comprehensive legal and procedural reforms for timely justice. ●The Law Commission of India (262nd report) suggested abolishing the death penalty for all crimes except terrorism-related offences and waging war against the state. It argued that the death sentence is no more effective at deterring crime than life imprisonment. It stressed the need for procedural reforms to address concerns such as insufficient legal representation, court errors, and biases in the use of the death penalty. ● The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code and provided the death penalty for certain grave offences. However, it emphasises the importance of a more compassionate and just criminal justice system.

Alternatives to the Death Penalty

• Life imprisonment without the possibility of parole is a severe punishment that ensures the convict remains in prison for life.
  • • It is an alternative to the death sentence, providing a means of protecting society without killing a life.
    • This approach addresses the death penalty's irreversible character while allowing for the revision of judicial errors.
    • It also complies with human rights standards by avoiding the use of the death penalty.
• The Restorative Justice approach aims to repair the harm caused by the crime via reconciliation between the victim and the offender. It focuses on accountability, making amends, and developing understanding.
  • • Rehabilitation programs seek to rehabilitate offenders by treating the root reasons for their criminal behaviour, and this may include addiction to drugs, a lack of education, or mental health challenges.
    • Rehabilitation aims to reintegrate criminals into law-abiding citizens.
• Restorative justice and rehabilitation can improve the criminal justice system by reducing criminal convictions, promoting victim healing, and making it more humane and effective. 

Open Jails in Rajasthan ●Prisoners who have served a significant portion of their sentence with good conduct are eligible for transfer to open jails. ●Prisoners live in a community setting without high walls or strict surveillance. ●Prisoners must live with their families in open jails, which helps maintain family bonds and provides emotional support. ●Prisoners are responsible for living expenses and earning money through their work, reducing the state's financial burden. ●Sanganer Open Jail in Rajasthan is one of the oldest and largest open jails in the world. It offers prisoners the freedom to work and live with their families while serving their sentences.

Conclusion

The death sentence debate has ethical, legal, and social implications. While some argue for its continued use as a deterrent, others demand its elimination, highlighting human rights issues and the possibility of court errors. Reform options and alternatives, such as life without parole and restorative justice, provide paths to a more equitable and humane criminal justice system.

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Source:

THE HINDU

AMNESTY

LEGAL SERVICE INDIA

PRACTICE QUESTION Q.Critically analyse the ethical implications of the death penalty in the context of human rights. How does the death penalty align or conflict with the principles of human dignity and the right to life?