DEATH
PENALTY - POLITY
News:
Report: 165 death
penalties by trial courts in 2022, most since 2000
What's
in the news?
●
According to the Annual Death Penalty
Report, 2022, the Supreme Court has
called for reforming death penalty sentencing, trial courts awarded 165 death
sentences in 2022, the highest in over two decades.
●
The report will be released by Project
39A, a criminal reforms advocacy group with the National Law University, Delhi.
What
is the death penalty?
●
Capital punishment, commonly known as the
death penalty, is the execution of an
offender sentenced to death after conviction of a criminal offense by a court
of law.
●
It is the highest penalty awardable to an offender. In general, it is given
in the most severe cases of murder, rape, treason, and so on.
●
It is seen as the most suitable punishment
and most effective deterrent for the worst crimes. Those who oppose it, on the
other hand, perceive it as inhumane. As a result, the morality of the death
penalty is debatable, and many criminologists and socialists around the globe
have long demanded its abolition.
Current
status of death penalty:
●
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.
●
According to the report, while trial
courts imposed a total of 144 death sentences in 2021, High Courts decided only
39 matters in the same period.
●
The Supreme Court, despite listing death
penalty cases on priority in September last year, decided only 6 cases in 2021
compared to 11 in 2020 and 28 in 2019.
Supreme
Court Observations:
1.
1973 - Jagmohan Singh v. The State of UP - The Supreme Court
ruled that deprivation of life is constitutionally permissible if done in
accordance with the law. Thus, under Article 21, a death sentence given
following a trial conducted in accordance with the legally established
procedures under CrPC and the Indian Evidence Act 1872 is not unconstitutional.
2.
1979 - Rajendra Prasad v. State of UP 1979 - The Supreme
Court declared that if a criminal's murderous operation jeopardizes social
security in a persistent, planned, and perilous fashion, his enjoyment of
fundamental rights may be rightfully annihilated.
3.
1980 - Bachan Singh v. the State of Punjab - The Supreme
Court issued the dicta of the 'rarest of rare cases,' according to which the
death penalty should not be granted except in the 'rarest of rare cases', where the other option is unquestionably
foreclosed.
The rarest of rare cases
can be described as follows.
●
When a murder is committed in such a
brutal, ridiculous, diabolical, revolting, or reprehensible manner that it
awakens the community's intense and extreme indignation.
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When a murder is driven by utter depravity
and cruelty.
●
The death penalty should be awarded after
seeing the aggravating and mitigating factors and balance of the same.
4.
1983 - Machhi Singh v. The State of Punjab - The Supreme
Court established certain considerations for determining whether a case falls
into the category of the rarest of rare cases or not.
Special
factors on the death penalty jurisprudence in India:
1.
Increase in Sexual Offences:
●
The report on death penalty published by
NLU Delhi shows that the rate of awarding capital punishment to the offences of
rape with murder is much higher than other offences.
●
There is no doubt that rape is one of the
most heinous crimes.
2.
Sedition and waging War against India:
●
India has seen many cases of treason,
terrorism and seditious activities.
●
It is in fact the most vulnerable state
for such crimes.
Appeal
mechanism for death penalty:
1.
Confirmation by HC: After a trial court awards the death
penalty, the sentence must be confirmed by a High Court. The sentence cannot be
executed till the time the High Court confirms it, either after deciding the
appeal filed by the convict, or until the period allowed for preferring an
appeal has expired.
2.
Review Petition: If the High Court confirms the death
penalty and it is also upheld by the Supreme Court, a convict can file a review
petition.
3.
Curative Petition: If the review petition is rejected, the
convict can file a curative petition for reconsideration of the judgment.
4.
Mercy Petition: Under Article 72 of the Indian
Constitution, the President shall have the power to grant pardons, reprieves,
respites, or remissions of punishments or to suspend, remit or commute the
sentence of any convicted person.
Arguments
in favour of the death penalty:
1.
Maintaining Deterrence:
●
The foremost argument given in support is
the level of deterrence maintained in society by awarding the death penalty.
●
Many people believe that a person may
restrain himself from committing a heinous crime like murder if the death
penalty is awarded for it.
2.
National Security:
●
Some acts like waging war against the State, terrorism etc. erodes the sanctity of
our National Security framework.
●
Such acts threaten the very existence of
the country and its people. For instance, Ajmal Kasab was awarded the death
sentence for carrying out 26/11 Mumbai attacks.
3.
Acts that shake the collective conscience:
●
Supporters of Death Penalty say that there
are some acts which shake the collective conscience of society and deserve
nothing except the death penalty.
●
For instance, The Vinay Sharma v. the Union of India (2020) case, also famously known
as the Nirbhaya gang-rape case, had shocked the conscience of the whole
country.
●
One of the accused committed suicide in
jail and one of the accused was a juvenile so he was not sentenced to death.
But the other four accused were sentenced to death and were also hanged in the
year 2020.
4.
Safety of Citizens:
●
Proponents of capital punishment argue
that some criminals commit most terrible of crimes and are beyond redemption
(e.g., some accused of multiple rape cases).
●
They show no remorse or repentance. There
is no change of reform and should be awarded death sentences for the safety of
citizens.
5.
Forfeiture of life:
●
Supporters of the death penalty believe
that those who commit murder, because they have taken the life of another, have
forfeited their own right to life.
Arguments
against death penalty:
1.
High Degree of Subjectivity:
●
There is a high degree of subjectivity in
awarding death sentences as the judges find it difficult to balance the
mitigating and aggravating factors. Further,
●
The death sentence is frequently used disproportionately
on the poor, minorities, and members of racial, ethnic, political, and
religious communities.
●
According to the 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.
2.
Mental Stress:
●
In many cases the convicts have to undergo
a huge term of imprisonment before being finally executed.
●
The findings of Project 39A’s report
‘Deathworthy’ shows that the segregated, alienated and stigmatized experiences
of being on a death row for a longer time result in mental illness.
3.
Irreversible in Nature:
●
Courts often give compensation to
individuals who are wrongly convicted and have spent considerable time in jail
due to an error by the State.
●
However, if a person is wrongly hanged,
then no amount of compensation can bring back the person and mitigate the
error.
4.
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.
5.
Global Precedent:
●
No correlation with low crime rates:
Scandinavian countries like Norway, Sweden and Finland have one of the lowest
crime rates in the world without death penalty.
●
They focus on reforming the criminal
rather than deterring him with stricter and harsh punishments. More than 100
countries have already abolished the death sentence for all offences.
●
This includes most European nations, Australia,
New Zealand etc.
6.
Eye for an eye:
●
Reformative
justice is more productive, that innocent people are often
killed in the search for retribution, and that “an eye for an eye makes the
whole world blind.
7.
Deterrence is a myth:
●
Death penalty is not a deterrent to
capital crimes and there is no evidence to support the claim that the penalty
is a deterrent.
WAY
FORWARD:
●
The SC
should release updated guidelines on how to balance the aggravating and
mitigating factors in cases. This will help in reducing subjectivity in
awarding death penalty and reduce the instances of unnecessary award of death
sentence.
●
Courts
can evolve innovative ways for giving stricter punishment in place of the death
penalty. For instance, giving minimum 25-30 years rigorous
imprisonment that can’t be reduced or reviewed.
●
The focus should be on ensuring certainty of punishment rather than quantum of punishment that
will act as a better deterrent for criminals.
●
The Union Government should also act
swiftly on mercy petitions based on merits and not on political
advantage/disadvantage it may get from the petition.
●
The Law
Commission in its 262nd report proposed that the death penalty should be
abolished for all crimes excluding terrorism-related offences and war. The
experience of the Scandinavian countries also supports this view. However till
the time it happens, there should be proper implementation of the Bachan Singh
Judgment by the Indian Courts.