UPSC MAINS 2019: An abhorrent and unjust device: on death penalty

An abhorrent and unjust device

 

Topic: An abhorrent and unjust device: on death penalty

Topic in Syllabus: General Studies Paper 2 : Indian Judiciary

 

An abhorrent and unjust device

Context:

Recently, a three-judge bench of the Supreme Court delivered verdicts in three different death penalty cases. In two of those the court entirely exonerated the suspects, while in the third it not only found the accused guilty of murder, but also deserving of capital punishment.

 

More about on news:

  • Collectively, the cases demonstrate how arbitrary the death penalty is, how its application is mired by a belief in conflicting values, and how the fundamental requirement of precision in criminal law has been replaced by a rhetorical cry for avenging crime by invoking the “collective conscience” of society.
  • In the first of the cases, Digamber Vaishnav v. State of Chhattisgarh, two persons were convicted of murdering five women and were sentenced to death in 2014.
  • But the chief testimony, was that of a nine-year-old child.This, the court therefore ruled, was effectively a conviction premised on surmise and conjecture.
  • Ankush Maruti Shinde v. State of Maharashtra, the second of the cases,a trial court found six persons guilty .However, in 2009, the Supreme Court not only dismissed the appeals filed by those sentenced to death, but also, astonishingly, enhanced the penalties of the three persons whose sentences had been commuted by ordering that they too be punished with death.
  • The rarest of rare doctrine has its origins in Bachan Singh v. State of Punjab (1980). There, the court declared Section 302 of the Indian Penal Code, which prescribes the death penalty for murder, as constitutionally valid, but bounded its limits by holding that the punishment can only be prescribed in the rarest of rare cases.
  • In Khushwinder Singh, the court does not place on record any such piece of evidence that the state was called on to produce. Indeed, the court does not so much as attempt to answer whether the accused was, in fact, capable of reformation or not.

 

Capital punishment:

  • Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial.
  • It can only be used by a state, so when non-state organisations speak of having ‘executed’ a person they have actually committed a murder.
  • It is usually only used as a punishment for particularly serious types of murder, but in some countries treason, types of fraud, adultery and rape are capital crimes.
  • The phrase ‘capital punishment’ comes from the Latin word for the head. A ‘corporal’ punishment, such as flogging, takes its name from the Latin word for the body.
  • Capital punishment is used in many countries around the world. According to Amnesty International as at May 2012, 141 countries have abolished the death penalty either in law on in practice.

 

Evolution in India:

  • B.R. Ambedkar, during the Constitution debates, opposed it on the principle of non-violence.
  • The Congress opposed it in 1931, after Bhagat Singh, Sukhdev and Rajguru were executed, but it has not moved for its abolition during its multiple terms as a ruling party.
  • Only a few political parties demanded the abolition of the death penalty in India, like Communist parties.
  • In 1962, the Law Commission supported the death penalty.
  • In 1980, in Bachan Singh Vs. State of Punjab, a Constitution Bench articulated the “rarest of rare” threshold and it stated, “judges should never be bloodthirsty”. Death must only be imposed, where the alternative option is unquestionably foreclosed.
  • In 1991, the Supreme Court cited its use in defending law and order.
  • In 2007, the UN General Assembly passed a resolution calling for a moratorium on the administration of the death penalty by the 59 countries that still retained it.
  • In 2015, the Law Commission called for abolition of the death penalty for ordinary crimes, but, the activists continue to argue for abolishing it altogether.
  • After Nirbhaya incident in Delhi, amendments were made to the Indian Penal Code, adding death penalty for certain categories of rapes and repeat offenders.
  • This year India introduced the death penalty for those, who rape minors.

 

MODES OF CAPITAL PUNISHMENT

At present, the ancient methods of giving capital punishment have been abolished and new techniques are being adopted in order to prevent the offender of experiencing any physical pain while dying. The new methods adopted for death penalty include:

  • Hanging
  • Beheading
  • Lethal Injection
  • Stoning
  • Shooting
  • Shooting by fire squad
  • Gas Chamber
  • Electrocution
  • Falling from an unknown height

 

CAPITAL OFFENCES IN INDIA:

  • A person who hatches a criminal conspiracy is granted with death penalty under Section 120B of the Indian Penal Code.
  • A person who wages war against the Government or attempts to do so is granted with capital punishment under Section 121 of IPC.
  • According to Section 132 of IPC whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, shall, if mutiny be committed in consequence of that abetment, be punished with death or with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
  • Section 194 of IPC states that if innocent person be thereby convicted and executed and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment hereinbefore described.
  • According to Section 302 of IPC, persons who commit a murder shall be granted with capital punishment.
  • Section 303 of IPC states that whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.
  • According to Section 305 of the Indian Penal Code, if any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.
  • Section 364A of IPC states that whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign state or international inter – Governmental organization or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
  • According to Section 376A of IPC, an amendment in the year 2013 provided for death penalty in case he inflicts an injury upon woman during rape which causes her death or to be in persistent vegetative state.44
  • Section 396 of IPC states that if any one of the five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

 

Protections under constitution:

  • The Maneka Gandhi case held that Article 21 affords protection not only against executive actions but also against legislations.
  • Thus, a person can be deprived of his life, even under capital punishment, only if there is a law which is just, fair and reasonable.
  • Under Article 72 of the constitution, the President can pardon even death sentence, while the governor cannot under Article 161.
  • However, even when the pardon was denied to a death row convict, there is scope for judicial review if the presidential decision is arbitrary, irrational and discriminatory.
  • Also under Article 134, right of appeal was provided from the High Court verdict to Supreme Court in any case where capital punishment was imposed on an accused in reversal of acquittal order.
  • Thus the treatment of death row prisoners has been humanised under the constitution itself.

 

Supporting arguments:

  • Most of the civilized world abolished it. Death penalty has not deterred terrorism, murder or even theft.
  • Between January 1, 2000 and June 31, 2015, Supreme Court imposed 60 death sentences and subsequently admitted that it had erred in 15 of them. So, it clearly admitted that it has arbitrarily imposed the most extreme punishment.
  • The Police is not known for its probity or efficiency in our Country.
  • It unfairly targets poor and marginalized, that means, those without money & power.
  • Executions occurred in around five cases for every 1 lakh murders and it looks quite arbitrary.
  • It depends on judges personal beliefs.
  • India’s murder rate has declined continuously since 1991 and at present the lowest, except for 1963.
  • Punishment should not imitate crime.
  • As per the recent Death Penalty India Report by the National Law University, Delhi, the structural flaws in our criminal procedure and criminal justice system are most pronounced in death penalty cases.

 

Countering arguments:

  • People criticise it on arbitrariness, irreversibility and human rights and these are not valid arguments.
  • Its constitutionality is upheld, even in liberal democracies like U.S. It is not reflection of uncivilized society.
  • India’s neighborhood is not peaceful, unlike Scandinavia.
  • It is not in a group of countries, like European Union.
  • India has got troubled borders. Several forces are trying to destabilize the very idea of our Nation from across the Border.
  • The sacredness of life can only be seen to be protected, if those who take it away are proportionately punished.
  • The punishment is not arbitrary because, it comes out of a judicial process. To call it arbitrary, one has to necessarily prove the process as flawed.
  • It is being implemented in the “rarest of the rare” cases and the fact is during the last 13 years, only four people have been executed.

 

Victims of such system:

  • That capital punishment serves no legitimate penological purpose is by now abundantly clear.
  • There’s almost no empirical evidence available showing that the death penalty actually deters crime.
  • If anything, independent studies have repeatedly shown the converse to be true.
  • In the U.S., for instance, States that employ capital punishment have had drastically higher rates of homicide in comparison with those States where the death penalty is no longer engaged.
  • In India, evidence also points to a disproportionate application of the sentence, with the most economically and socially marginalised amongst us suffering the most.
  • The Death Penalty India Report (DPIR), released on May 6, 2016, by Project 39A of the National Law University, Delhi, for example, shows that 74% of prisoners on death row, at the time of the study, were economically vulnerable, and 63% were either the primary or sole earners in their families.
  • More than 60% of those sentenced to death had not completed their secondary school education, and 23% had never attended school, a factor which, as the report states, “points to the alienation that they would experience from the legal process, in terms of the extent to which they are able to understand the case against them and engage with the criminal justice system.”

 

Need For Reforms:

  • In the face of this invidiously prejudiced application, the retention of capital punishment utterly undermines the country’s moral foundations.
  • The Supreme Court may well have expanded the rights of death row prisoners: delays by the President in disposing of mercy petitions now constitute a valid ground for commutation; review petitions filed by death row convicts now have to be mandatorily heard in open court.
  • But as the judgments delivered on March 5 reveal, the very preservation of the death penalty creates iniquitous results.
  • Cases such as Ankush Maruti Shinde, where the accused, as the judgment records, were very poor labourers, “nomadic tribes coming from the lower strata of the society,” ought to make it evident that the death penalty is an abhorrent and unjust device.
  • The Constitution promises to every person equality before the law. But capital punishment renders this pledge hollow.

 

Sample Question:

“Every death sentence throws up a moral dilemma on whether the truth has been sufficiently established. The only way out of this is the abolition of the death penalty altogether”. Examine the statement.


An abhorrent and unjust device on death penalty - Info graphics - Mar13th