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Capital Punishment

  May 16, 2020

Capital Punishment

What is the history of death penalty in India?

After Independence, India retained several laws put in place by the British colonial government including the Code of Criminal Procedure (1898) and the Indian Penal Code, IPC (1860). The IPC prescribed six punishments that could be imposed including death. 

The Code of Criminal Procedure was again enacted in 1973 and many notable changes were made to the then existing colonial law including the one to Section 354(3), that now required reasons to be stated whenever death penalty is imposed in cases where imprisonment for life could have been imposed. 

The Supreme Court also looked into the issue of death penalty in various cases. Most notably, it adopted the ‘rarest of rare’ guideline in the Bachan Singh case of 1980. The court noted that reasons to impose or not impose the death penalty must include the circumstances of the crime and the criminal. On various occasions, the court also expressed concern over the delay in execution. 

What are the laws on death penalty in India?

Art.21 allows death as punishment provided procedure established by law is followed. Supreme Court in the Maneka Gandhi case in 1978 made the judicial review standards even more stringent when they adopted the American doctrine of due process of law.

Under the IPC, the death sentence may be imposed for twelve different offences including Murder, Rape etc. Apart from IPC, several other laws also prescribe the death penalty as a possible punishment. As per the commission’s report, there are about 22 such laws in the country including The Air Force Act, 1950, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, The Unlawful Activities Prevention Act,1967, POCSO Act 2019 etc. 

How are the International trends evolving?

More countries have abolished the death penalty in the last few decades. Internationally, countries are classified on their death penalty status, based on the following categories (as per standards of the United Nations) 

• Abolished for all crimes 

• Abolished for ordinary crimes 

• Abolished de facto (death penalty is lawful, but executions have not taken place in the last 10 years) 

• Retained 

At the end of 2014, 98 countries abolished death penalty for all crimes. 7 countries have abolished it for ordinary crimes and 35 countries have abolished it in practice or de facto (executions did not take place). 58 countries have retained the death penalty including India. Three of the 98 countries (Suriname, Madagascar and Fiji) formally abolished the death penalty in 2015. 

Though the number of countries that still retain the death penalty is in a minority, the list includes the most populous nations of the world like India, China, USA & Indonesia. 

There are also international treaties like ‘The International Covenant on Civil and Political Rights (ICCPR)’. Though this does not abolish the use of the death penalty, it contains guarantees regarding the right to life, and contains important safeguards to be followed by signatories who retain the death penalty. At present 168 countries including India are parties to ICCPR. 

There is the charge that death sentence is arbitrary. Is it so?

The Supreme Court in the recent times has advocated the three test theory in deciding the death penalty cases. It means “that three tests have to be satisfied before awarding the death penalty: the crime test, meaning the aggravating circumstances of the case; the criminal test, meaning that there should be no mitigating circumstance favouring the accused; and if both tests are satisfied, then the rarest of rare cases test, “which depends on the perception of the society and not subjective, that is whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes...” 

What are the supporting arguments for death penalty? 

• The punishment is not arbitrary because, it comes out of an elaborate judicial process. 

• 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. 

• Its constitutionality is upheld, even in liberal democracies like U.S. It is not reflection of uncivilised society. 

• India’s neighbourhood is not peaceful

• India has got troubled borders. Several forces are trying to destabilise 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. 

  • Works as deterrent
  • Victims need justice too
  • Supreme Court has shown adequate compassion and said in Shatrughan Chouhan case that when the appeal for mercy of a capital punishment convict is not responded to within a conscionable period of time, it automatically commutes to life imprisonment. Thus, there are safeguards.

And the counter- arguments?

  • Death is finality and judicial fallibility is irreversible
  • It unfairly targets poor and marginalised
  • It is judge centric
  • Punishment should be reform and not retribution: 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. 

• Most of the civilised world abolished it.

 Death penalty has not deterred terrorism, murder or even theft. 

• From 2000-2015, Supreme Court imposed 60 death sentences and subsequently admitted that it had erred in 15 of them. It clearly admitted that it has arbitrarily imposed the most extreme punishment. 

• When we reform Criminal Justice System, there will be speed and certainty of punishment and that will deter crime.  

What does the Law Commission Report say?

• The Law Commission of India recently submitted its 262nd report on the contentious issue of ‘Death Penalty’. 

• The commission recommended that the death penalty be abolished for all crimes except for terrorism related offences and waging war. The commission came to this conclusion based on the following reasons:

1. Changing international & national situation towards abolition of death penalty 

2. Death penalty as a deterrent is not proved

3. Arbitrariness in sentencing in capital offences leading to a high number of rejections (more than 95%) of trial court decisions in higher courts 

4. Geographical variations in imposition of death penalty 

5. Existence of a bias 

Recommendations of the Commission:

• The Commission recommended various provisions for police reforms, witness protection scheme and victim compensation scheme. 

• The Commission felt that time has come for India to move towards abolition of the death penalty. 

• The Commission recommended that the death penalty be abolished for all crimes other than terrorism related offences and waging war.