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.

       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.