Author: Rachit Sharma, LLM from Vivekananda Institute of Professional Studies (Affiliated to Guru Gobind Singh Indraprastha University).
INTRODUCTION
All punishments are based on the same proposition i.e., there must be a penalty for wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that it is both right and just that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages other from doing wrong.
The capital punishment also rests on the same proposition as other punishments. The capital punishment debate is the most generally relevant debate, keeping in mind the situation that has been brought about by today. Capital punishment is an integral part of the Indian criminal justice system. Increasing strength of the human rights movement in India, the existence of capital punishment is questioned as immoral.
However, this is an odd argument as keeping one person alive at the cost of the lives of numerous members or potential victims in the society is unbelievable and in fact, that is morally wrong.
Capital punishment is an ancient sanction. There is practically no country in the world where the death penalty has never existed. History of human civilization reveals that during no period of time capital punishment has been discarded as a mode of punishment. Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece under the laws of Draco (fl. 7th century BCE), though Plato argued that it should be used only for the incorrigible. The Romans also used it for a wide range of offenses, though citizens were exempted for a short time during the republic.
This finds support in the observation made by Sir Henry Marine who stated that "Roman Republic did not abolish death sentence though its non-use was primarily directed by the practice of punishment or exile and the procedure of questions".
MEANING OF CAPITAL PUNISHMENT
Capital punishment, also called death penalty, execution of an offender sentenced to death after conviction by a court of law for a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.
The term "Capital Punishment" stands for most severe form of punishment. It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity. While the definition and extent of such crimes vary from country to country, state to state, age to age, the implication of capital punishment has always been the death sentence. By common usage in jurisprudence, criminology and penology, capital sentence means a sentence of death.
Capital punishment or death penalty is the execution of an offender sentenced to death after conviction by a court of law for a criminal offense. Capital punishment is distinguished from extrajudicial executions carried out without due process of law.
It is based on the principle of retributive justice. Supporters of the death penalty argue that death penalty is morally justified when applied in murder especially with aggravating elements such as for multiple homicide, child murderers, cop killers, torture murder and mass killing such as terrorism, massacre, or genocide. Some even argue that not applying death penalty in latter cases is patently unjust.
Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece. A basis can be found in religious teachings both for permitting and forbidding the death penalty. In the Christian World, the Biblical passage, “sheddeth man’s blood, by man shall his blood be shed” has been cited as the justification for capital punishment.
Yet capital punishment has been prescribed for many crimes not involving loss of life, including adultery, blasphemy etc. in Judaism, Christianity and Islam. Death was formerly the penalty for a large number of offenses in England during the 17th and 18th centuries, but it was never applied as widely as the law provided. In India, capital punishment has a very long history; Manusmriti prescribed execution by elephants for a number of offences including theft. In colonial India, death was prescribed as one of the punishments under the Indian Penal Code, 1860 and the same was retained after independence.
INDIAN CONTEXT
A careful scrutiny of the debates in British India's Legislative Assembly reveals that no issue was raised about capital punishment in the Assembly until 1931, when one of the Members from Bihar, Shri Gaya Prasad Singh sought to introduce a Bill to abolish the punishment of death for the offences under the Indian Penal Code.
However, the motion was negatived after the then Home Minister replied to the motion.
The Government's policy on capital punishment in British India prior to Independence was clearly stated twice in 1946 by the then Home Minister, Sir John Thorne, in the debates of the Legislative Assembly. "The Government does not think it wise to abolish capital punishment for any type of crime for which that punishment is now provided".
At independence, India retained several laws put in place by the British colonial government, which included the Code of Criminal Procedure, 1898 (‘CrPC. 1898’), and the Indian Penal Code, 1860 (‘IPC’).
The IPC prescribed six punishments that could be imposed under the law, including death.
For offences where the death penalty was an option, Section 367(5) of the CrPC 1898 required courts to record reasons where the court decided not to impose a sentence of death:
If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.
In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly altering the position of the death sentence. The death penalty was no longer the norm, and courts did not need special reasons for why they were not imposing the death penalty in cases where it was a prescribed punishment.
The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and several changes were made, notably to Section 354(3):
When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
This was a significant modification from the situation following the 1955 amendment (where terms of imprisonment and the death penalty were equal possibilities in a capital case), and a reversal of the position under the 1898 law (where death sentence was the norm and reasons had to be recorded if any other punishment was imposed). Now, judges needed to provide special reasons for why they imposed the death sentence.
These amendments also introduced the possibility of a post-conviction hearing on sentence, including the death sentence, in Section 235(2), which states:
If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
THE CURRENT STATUS
Supreme Court on Validity of Capital Punishment in India
Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law. This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life. While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has upheld the constitutional validity of capital punishment in “rarest of rare” cases.
In Jagmohan Singh vs State of Uttar Pradesh, then in Rajendra Prasad vs State of Uttar Pradesh, and finally in Bachan Singh vs State of Punjab, the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.
Criteria for Rarest of Rare
The principles as to what would constitute the “rarest of rare” has been laid down by the top Court in the landmark judgment in Bachan Singh vs State of Punjab. Supreme Court formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely upon the court’s discretion to reach this conclusion. However, the apex court also laid down the principle of weighing, aggravating and mitigating circumstances.
A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?
EMERGENCE OF ALTERNATIVE PUNISHMENT TO CAPITAL PUNISHMENT
In the last few years, Supreme Court has entrenched the punishment of “full life” or life sentence of determinate number of years as a response to challenges presented in death cases. The Supreme Court speaking through a three-judge bench decision in Swamy Shraddhanand case laid the foundation of this emerging penal option in following terms:
“The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all. Further, the formalization of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases ......."
The observations in Swamy Shraddhanand case have been followed by the Court in a multitude of cases such as Haru Ghosh v. State of West Bengal, State of Uttar Pradesh v. Sanjay Kumar, Sebastian v. State of Kerala, Gurvail Singh v. State of Punjab where full life or sentence of determinate number of years has been awarded as opposed to death penalty.
LAW COMMISSION OF INDIA's REPORT ON DEATH PENALTY
The Law Commission of India in its 262nd Report (August 2015) recommended that death penalty be abolished for all crimes other than terrorism related offences and waging war. Complete recommendations of the Report are as follows:
The Commission recommended that measures suggested that police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
The march of our own jurisprudence -- from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to the rarest of rare cases – shows the direction in which we have to head. Informed also by the expanded and deepened contents and horizons of the Right to life and strengthened due process requirements in the interactions between the State and the individual, prevailing standards of constitutional morality and human dignity, the Commission felt that time has come for India to move towards abolition of the death penalty.
Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the Commission did not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.
The Commission accordingly recommended that the death penalty be abolished for all crimes other than terrorism related offences and waging war.
Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible.
CONCLUSION
In the wake of above discussion and ground realities of present-day world following conclusions can be drawn:
The process of globalization has made the world smaller and brought many problems also. One of the serious threats arising recently is the phenomenon of global terrorism. When terrorist groups strike at free will at innocent civilians and institutions of civil society then all arguments in favour of abolition of death penalty fail. These are exemplified by the December 2001 terrorist attack on the Indian Parliament, attack on Akshardham Temple, 9/11 attack on WTC in USA, train bombings at Madrid, bomb blasts in public transport in London, killing of an IIT professor emeritus in Bangalore, bomb blasts at holy places such as Varanasi temple, Mosque in Andhra Pradesh, Ajmer Sharif Dargah and at the Lord Hanuman Temple in Jaipur in May 2008. Since most of these strikes are made by suicide squads (Fedayeen), hence, if such culprits or their kingpins are caught, then death penalty is the only mechanism to save the civil society from the unscrupulous ideologies or evil designs of hate mongers. Does any issue of human rights stand validity for these terrorist outfit runners? In the wake of modernization, globalization and advancement of extreme material values, there is a relative erosion of moral pressure of the community, family, religion, etc. on the individual. This has led to a situation where severe penalties such as death penalties stand justified.
In a world with so much of acute disparity in terms of development between nations, no rhetoric can work or bring reformation but for severe punishments such as death penalty. For instance, there is stark contrast between the populations living in developed countries vis-à-vis populations in sub-Saharan countries, where obscurantism, superstitions, extreme communal hatred and prejudices operate due to illiteracy, poverty, deprivation and fundamentalism. How well severe penalties work in such societies is well evident from the extremely low crime rate in Islamic countries of the Middle East. Even within India, the kind of killings take place in the name of religion (Graham Staines Murder Case), superstition (lynching of so called 'witches' in rural Rajasthan and Haryana), caste killings in Bihar, female infanticide and dowry deaths, the abolition of death penalty will be against all social, legal, moral, national, civic and cultural interests.
On one hand, there is a demand for abolition of death penalty and on the other hand, there is an increased rhetoric for capital punishment for rape, heinous crimes against women, trade and trafficking of women and narcotics. Much of the arguments for provisions of death penalty have strong rationale on moral and social grounds. Therefore, keeping in mind the maxim ‘Salus populi est suprema lex63’ a proper approach to issue perhaps will be, that death penalty must be retained for incorrigibles and hardened criminals but its use should be limited to the 'rarest of rare cases’. The courts may make use of death penalty sparingly but its retention on the statute book seems necessary as a penological expediency. Therefore, it can be safely concluded that death penalty should not be subjected to untimely death penalty.
Law Commission in its 262nd report submitted recently recommended the abolition of capital punishment for all crimes in India, except the crime of waging war against the nation or for terrorism-related offences. It cited several factors to justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven deterring effect on criminals.
Internationally this practice has been discarded by majority of the nations today. As a leader of human rights and emerging nations, it does not set a right example. India has been criticized internationally in handling its insurgency in North east and Kashmir. Abolishing capital punishment will augur well for us internationally.
However, as Law Commission said that it is the not right time of abolition experiment, the issue needs to be debated and researched in more detail. But capital punishment should not become a pent-up of society’s misplaced anger and sense of judgment. It is also against the reformative purpose of the Criminal Justice System and we must remember the words of Oscar Wilde, “Every saint has a past and every sinner a future.”