SHOULD DEATH PENALTY BE ABOLISHED IN INDIA?

ABSTRACT

The DEATH PENALTY, or capital punishment, remains a contentious issue worldwide. In India, while it is legally sanctioned, its application is restricted to the “rarest of rare” cases. Historically entrenched since the British colonial era through the Indian Penal Code of 1860, capital punishment has expanded to include crimes such as murder, treason, and terrorism. Despite judicial emphasis on its restricted use, the death penalty’s application has been inconsistent, prompting debates over its efficacy and morality.

Arguments for abolition center on human rights and ethical considerations, highlighting that the death penalty violates the fundamental human right to life as enshrined in the Universal Declaration of Human Rights. Ethical arguments posit that state-sanctioned killing perpetuates a cycle of violence and undermines the moral authority of the state. 

Additionally, the death penalty, despite its potential to reduce crime rates, is disproportionately imposed on marginalized and economically disadvantaged groups, highlighting the need for improved legal representation and addressing systemic flaws like inadequate legal representation and police misconduct.

Conversely, Arguments against abolition focus on retribution and justice for victims, arguing that heinous crimes warrant severe punishment. The death penalty provides closure for victims’ families and serves as a moral response in terrorism cases, potentially deterring criminals. 

Opponents propose legal reforms to ensure fairness and minimize wrongful convictions, such as strengthening legal representation and investigative procedures, while retaining the death penalty for the most severe crimes.

As alternatives, LWOP is a method of permanently removing dangerous offenders without executing innocent individuals. Restorative justice aims to repair harm through reconciliation, accountability, and rehabilitation. Investing in rehabilitation and crime prevention programs, addressing underlying causes of criminal behavior, is considered a more effective long-term solution than punitive measures.

Significant case laws illustrate the complexities of capital punishment in India. In Bachan Singh v. State of Punjab (1982), the Supreme Court outlined criteria for the death penalty, emphasizing the need to balance aggravating and mitigating circumstances. 

In Jeeta Singh Harbans Singh v. State of U.P. (1982), judicial anomalies highlighted the arbitrariness in death penalty impositions. 

Cases like Ravji alias Ram Chandra v. State of Rajasthan (1996) further exposed inconsistencies with established judicial principles, underscoring the need for stringent safeguards in capital punishment cases.

Introduction: The death sentence, also referred to as capital punishment, has generated a great deal of controversy across the world. The death penalty is still a legal means of punishment in India, although it is only applied in the “rarest of rare” situations. However, there are many different angles to consider while deciding whether or not to abolish it, including moral, legal, social, and practical ones. 

Historical Context and Current Status: Capital punishment in India has been a part of Indian law since the British colonial era, with provisions in the Indian Penal Code (IPC) of 1860. It has expanded to include crimes like murder, treason, and terrorism.

In recent years, the Indian Supreme Court has upheld the death sentence’s legitimacy, stating it should only be used in the “rarest of rare” circumstances, despite its strict use, causing ongoing debates over its usefulness and morality.

In favour of Abolition:

1. Human Rights and Ethical Considerations: Abolishing the death penalty is argued to upheld the fundamental human right to life, as India has signed the Universal Declaration of Human Rights, which guarantees life, liberty, and personal security to all.

The ethical argument against taking a person’s life as punishment is strong, as it fuels violence and weakens the state’s moral authority. Mahatma Gandhi’s nonviolent philosophy and the saying “An eye for an eye makes the whole world blind” are often emphasized, urging the state to avoid committing the same acts of violence.

2. Risk of Wrongful Convictions: The juridical system is not flawless, leading to wrongful convictions. Numerous cases have seen death row inmates acquitted due to new evidence, including DNA testing. This issue is exacerbated in India by inadequate legal counsel, police misconduct, and court mistakes.

Executing an innocent person is a permanent error that damages the legal system’s legitimacy. Abolishing the death penalty reduces the possibility of such irreparable errors of justice.

3. Deterrence and Crime Rates: The death sentence is often argued to deter major crimes, but scientific evidence is inconclusive, as studies comparing crime rates with and without the death sentence found no significant variation in crime frequency.

In India, capital punishment rates in states with high capital punishment rates do not necessarily result in lower crime rates. The belief that the death penalty deters crime is weakened by the fact that many crimes committed without planning are unaffected by capital punishment.

4. Impact on Society and Marginalized Groups: The death penalty disproportionately affects marginalised and economically disadvantaged people. These populations frequently lack access to skilled legal representation and are more prone to systemic biases. In India, this problem gets worse by caste and communal biases, resulting in an inequitable implementation of death penalty.

Abolishing capital punishment would eliminate this inherent bias and help to create a more egalitarian judicial system. It would also allow resources presently utilised in prolonged and costly death penalty charges to be redirected to crime prevention and rehabilitation programmes.

Arguments against Abolition:

1. Retribution and Justice for Victims: Many people feel that the most heinous acts should be punished to the fullest extent possible. For victims’ families, the death sentence can bring a feeling of justice and closure. 

In circumstances involving terrorism, mass murder, or extremely cruel crimes, the death sentence is viewed as an appropriate reaction to the seriousness of the offence. Advocates say that it maintains society’s moral order by categorically denouncing such behaviour. 

2. Deterrence and Public Safety: Although the death penalty’s deterrence impact is debatable, others claim that it may still be effective in deterring potential criminals. The fear of execution may deter some people from committing capital offences, so improving overall public safety.

In India, where terrorism and violent crime pose serious issues, some see the death sentence as an important weapon for upholding law and order. The idea is that its existence can deter potential offenders from committing crimes that endanger national security.

3. Legal Safeguards and Reforms: Opponents of abolition believe that rather than abolishing the death sentence, efforts should be directed on modernising the legal system to ensure impartiality and lessen the likelihood of incorrect convictions. Many of the issues raised about death punishment may be addressed by strengthening legal representation, enhancing investigation methods, and assuring severe court scrutiny.

Several protections have already been adopted in the Indian legal system, including obligatory appeals and the need that all death sentences be reviewed by the Supreme Court. Improving these methods can give further safeguards against judicial mistakes while keeping the death penalty for the most heinous crimes.

Alternatives to the Death Penalty:

1. Life Imprisonment Without Parole: Life imprisonment without the possibility of parole (LWOP) is an effective alternative to the death sentence. It assures that dangerous offenders are permanently removed from society while removing the possibility of killing an innocent person. LWOP allows the state to correct unjust convictions if new evidence arises.
2. Restorative Justice: Restorative justice seeks to repair the harm caused by criminal behaviour via reconciliation between offenders and victims. 

It focuses on accountability, making apologies, and rehabilitating offenders. Restorative justice in major crimes can include life imprisonment while also incorporating victims, giving them a feeling of closure and participation in the legal system.

3. Rehabilitation and Prevention Programs: Investing in rehabilitation and crime prevention programmes can help address the underlying reasons of criminal behaviour. Education, mental health care, substance addiction treatment, and economic possibilities are more successful in reducing crime than punitive measures. Instead of depending on death punishment, society should strive towards long-term solutions by addressing the root causes of criminal behaviour.

Case Laws: 

A. BACHAN SINGH V. STATE OF PUNJAB [(1982) 3 SCC 24, (1983) 1 SCR 145A]

In this case, the Supreme Court of India deliberated on the parameters for imposing the death penalty. During the hearing, it was argued that certain aggravating circumstances could justify the application of capital punishment. 

These circumstances include:

1. Premeditation and Extreme Inhumanity: If the murder was preplanned and executed with extreme cruelty, demonstrating a high degree of inhumanity.
2. Extraordinary Depravity: If the murder involved acts of exceptional moral depravity.
3. Murder of Public Servants: If the victim was a member of the armed forces or a public servant:

• While discharging official duties.
• As a consequence of any act performed in the lawful discharge of their duties, irrespective of whether they were in service at the time of the murder.

4. Assisting Officials: If the victim had acted in legitimate exercise of duties under Section 43 of the Code of Criminal Procedure 1973, or had assisted a Magistrate or police officer under Sections 37 and 129 of the same Code.

In exercising its discretion, the Court also examined mitigating factors for considering the lesser punishment of life imprisonment. These factors include:

1. Mental or Emotional Instability: If the accused was suffering from severe mental or emotional instability at the time of the offence.
2. Age of the Accused: If the accused is particularly young or old, mitigating the imposition of the death penalty.
3. Threat to Society: The likelihood that the accused would not pose a continuing threat to society through future acts of violence.
4. Reformability: The potential for the accused to be reformed and reintegrated into society.
5. Moral Perception: If the accused believed that the offence was morally permissible under the specific circumstances of the case.
6. Duress: If the accused acted under the coercion of another person’s dominance.
7. Mental Deficiency: If the accused had a mental defect impairing their capacity to appreciate the criminality of their conduct.

In Machhi Singh and Others v. State of Punjab (AIR 1983 SC 957), the Supreme Court emphasised that the death sentence should only be used in instances when life imprisonment would be insufficient owing to the nature and circumstances of the crime. The recommendations emphasised that the death penalty should only be used in serious cases of extreme guilt.

To ensure judicious application of these principles, the Court suggested drawing up a balance sheet of aggravating and mitigating circumstances, giving full weight to the mitigating factors. This process aimed to achieve a just balance between the factors before deciding on the death penalty.

Two pivotal questions were posed to guide this determination:

1. Is there something unusual about the crime that makes a life sentence insufficient, thus necessitating the imposition of the death penalty?
2. Are the circumstances of the crime such that there is no alternative but to impose the death sentence, even after giving maximum weight to the mitigating circumstances in the offender’s favor?

The Court must evaluate if the case falls within the category of the “rarest of rare” cases, warranting the death penalty based on the responses to these questions.

The Supreme Court’s Bachan Singh decision mandates the death penalty only when a life sentence is “unquestionably foreclosed,” requiring the Court to balance aggravating and mitigating circumstances, ensuring the death penalty is the “rarest of rare.”

B. JEETA SINGH HARBANS SINGH V. STATE OF U.P. [(1982) 2 SCC 101]

The Supreme Court of India faced a significant judicial anomaly, where Jeeta Singh, Harbans Singh, and Kashmira Singh were each sentenced to death for their roles in a murder, which was later upheld by the High Court.

Jeeta Singh’s special leave petition was dismissed in 1976, while Kashmira Singh’s was admitted, leading to his death sentence being commutated in 1977. Harbans Singh’s was dismissed in 1978, and his review petition was rejected in 1980. His mercy petition was rejected by the President in 1981.

Crucially, the government neglected to consider the Supreme Court’s judgement to modify Kashmira Singh’s sentence, dismissing mercy requests of Harbans Singh and Jeeta Singh, culminating in their execution on October 6, 1981. 

Harbans Singh was executed after submitting an Article 32 plea, whereas Jeeta Singh was executed without legal recourse. Justice Bhagwati dissenting in Bachan Singh v. State of Punjab noted this case as an example of arbitrary death penalty imposition.

In Ravji’s case, the court emphasized the offence’s nature and intensity over the criminal’s circumstances in determining the appropriate sentence, contrasting with the Bachan Singh verdict, which emphasized the importance of considering the criminal’s relevant circumstances.

Ravji’s mercy appeal was denied within eight days, resulting to his death on May 4, 1996, notwithstanding erroneous court reasoning in Santosh Kumar Bariyar v. State of Maharashtra. 

Similarly, Surja Ram’s mercy appeal was rejected within 14 days, resulting to his execution in 1997, showing severe breaches in judicial and executive considerations surrounding the death sentence.

Conclusion: The argument over the death sentence in India rests on balancing human rights, ethical issues, and the pursuit for justice. 

While death punishment is reserved for the “RAREST OF RARE” circumstances, variations in its execution create substantial issues regarding false convictions, social effect, and usefulness in deterring crime. Judicial reforms, alternatives including life imprisonment without parole, and restorative justice provide feasible remedies. 

Ultimately, a more humane and equitable judicial system may involve shifting away from the death sentence towards rehabilitation and preventive measures.

Frequently Asked Questions (FaQ):

1. Are victims and their families of violent crimes not entitled to justice?

They do. Families of loved ones who have lost loved ones in terrible crimes have the right to a fair trial without the death penalty. Opposition to the death penalty does not condone crime but only extends suffering to the condemned person’s family.

2. Don’t you deserve to die as well—”an eye for an eye”—if you murder someone else?

No. It is not fair to put someone to death because they took another person’s life; it is revenge.

3. Can the death penalty deter crime?

Not according to the research. The death penalty does not effectively deter crime compared to prison terms, and crime rates in countries with banned the death penalty have not increased, and in some cases, decreased, as seen in Canada in 2008.

4. D. Is the effort to eradicate the death penalty being won?

Yes. Two-thirds of the world’s countries have abolished or stopped using the death penalty, with countries like Fiji, Madagascar, Suriname, Burkina Faso, Mongolia, and South Korea making progress. Europe remains free, and the USA is slowly turning against capital punishment.

AUTHOR: MOHIT RAJKUMAR TALREJA, a student at AGNEL SCHOOL OF LAW, VASHI, NAVI MUMBAI.