This Article is written by Vanshika Jain, student of University Law College, Bangalore University.
On 20 March 2020, early morning, when the whole nation was waking up, Nirbhaya’s mother peacefully went to sleep. After all, justice had been served after a long wait of seven years. The latest executions of the four convicts in the Nirbhaya gang rape and murder case had once again triggered a debate if India should abolish capital punishment or not.
In order to arrive at a conclusion, the jurisprudence behind awarding any sort of punishment, be it time-bound imprisonment, life imprisonment or capital punishment has to be understood. This jurisprudence comprises four basic theories of punishment viz, reformative, deterrent, preventive and retributive. Capital punishment is certainly looked upon as a tool aiding retribution despite the fact that the Indian criminal justice system has always believed in reformation.
Capital punishment, commonly known as the death penalty is the maximum punishment awarded to a criminal in the most heinous offenses such as terrorism, murder, rape, etc. In the Indian context, section 354(5) of the Code of Criminal Procedure, 1973 states that a death sentence has to be given by way of hanging till the convict is dead. In certain other legislations such as the Army Act, the Navy Act, the death sentence is carried out by shooting. In other countries, there exist different modes of execution such as electrocution and lethal injections.
Prior to the Criminal Procedure (Amendment) Act, 1955, the death penalty was the rule, and life imprisonment an exception in India but the situation was reversed post-1955. Despite a global moratorium against the death penalty by the UN, India retains the death penalty as it is of the view that allowing criminals guilty of having committed intentional, cold-blooded, deliberate, and brutal murders to escape with a lesser punishment will deprive the law of its effectiveness and result in travesty of justice.
In Europe, the campaign against the death sentence is so strong that unless a country renounces capital punishment it cannot even join the European Union, Belarus and Russia being the only exceptions. Several international organizations such as Amnesty International moot for the abolition of the death penalty according to which in 2017, 142 countries had abolished it in law or practice. There are a variety of reasons given for its abolition.
WHY DEATH PENALTY SHOULD BE ABOLISHED?
Firstly, the death penalty is irreversible – criminologists and sociologists believe that there is always a tendency of committing errors, judicial errors. According to Amnesty International, as long as human justice remains fallible, the risk of executing the innocent can never be eliminated. Secondly, it is discriminatory and awarded especially to criminals who belong to a weak socio-economic background. Thirdly, the State itself becomes a murderer and the policy of ‘an eye for an eye’ does not hold good anymore now.
As Oscar Wilde’s famous adage goes ‘every saint has a past and every sinner has a future’; India believes that our prisons must ultimately stay loyal to the theory of reformative justice where, a crime is committed on account of a set of peculiar circumstances, and it is highly probable that these circumstances may never repeat again. Lastly, capital punishment does not act as a deterrent as even after the Criminal law Amendment Act, 2013, girls are still being raped and that too with much more brutality.
REMEDIES AVAILABLE TO A CONVICT TO ESCAPE THE GALLOWS
Though the death penalty is irreversible, there are numerous legal remedies available to a death row convict to escape the gallows. Firstly, the death penalty is subject to confirmation by the High Court if it is awarded by the Sessions Court under section 28(2), CrPC. Secondly, a right to appeal lies in the Supreme Court against the order of the High Court under Article 134 of the Constitution. Now, not only the convict has the option to approach the Supreme Court once in an appeal but he can approach the Apex Court under Article 137 also by filing a review petition. Again, the convict has the remedy of filing a Curative petition after the dismissal of the review petition. This remedy is provided to avoid a miscarriage of justice and prevent the abuse of the process. When the judges apply their judicial minds numerous times while awarding the death penalty, it leaves almost no scope for committing errors.
After exhausting all the legal remedies, the convict can seek pardon from the President or Governor under Articles 72 and 161 of the Constitution respectively. It still does not end here; the convict can challenge the rejection of mercy petition in the Supreme Court. Another important fact which deserves a mention is that, neither the constitution mandates any time limit within which the mercy petition has to be disposed of nor the Ministry of Home Affairs can ask the President to speed up this process, therefore; a sword is always hanging on the fate of death row convicts. So, it is not necessary that every death penalty which is awarded will always end in execution.
The landmark judgment which protects the human rights of convicts was given by a three-judge bench of Supreme Court in 2014, Shatrughan Chauhan versus Union of India. Here, the death sentences of 15 convicts were commuted to life imprisonment by the Supreme Court on account of delay by the President in disposing of the mercy petition and mental illness. The Court laid down certain other supervening circumstances such as insanity, schizophrenia, solitary confinement to be considered while commutating death sentences. As per the reports of NCRB, in 2018, 186 death sentences had been given out of which 65 had been commuted to life.
These facts depict that how the Indian criminal justice system is ‘adversarial’ in its spirit which is much more accused/convict centric and the victim is somewhere left behind in the lurch fighting endlessly to get justice.
WHY DEATH PENALTY SHOULD BE RETAINED?
The death penalty cannot be called discriminatory as there are certain parameters that are considered by the Courts while awarding it. The Supreme Court in 1980 in Bachan Singh versus the State of Punjab propounded the dictum of ‘rarest of rare’ according to which the death penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed and in Machhi Singh v. the State of Punjab it laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not. Also, while awarding the death penalty, the court has to keep in consideration the ‘aggravating factors’ which support the death penalty and the ‘mitigating factors’ which do not. Even if the statistics show that the death penalty is discriminatory in nature, one can argue the same for life imprisonment as well.
Experts also believe that the death penalty is an infringement of the right to life guaranteed under Article 21 but attention is needed towards the interpretation of the Article as a whole. Article 21 says that no one shall be deprived of his life or personal liberty except according to a procedure established by law. As already mentioned the death penalty has been enacted by the legislature and finds a mention in the code of criminal procedure which certainly will come under the purview of ‘procedure established by law’.
The Supreme Court and the concerned High Courts have even gone to the extent of conducting midnight hearings just before the day of execution examples being the hangings of Nirbhaya convicts or Yakub Memon.
The question is not whether the death penalty acts as a deterrent or not but considering the modus operandi of such criminals, it urges one to ask if these criminals can be reformed. Criminals who raped a young Kashmiri girl in Kathua among those who four were police officers, did so because they wanted to throw her community out from the area, and the method which they adopted to do it was by raping her multiple times. One of them even wanted to rape the girl last time before killing her. The acts of burning alive the victims, inserting rods in their genitals, put a big question mark on their probabilities of being reformed. Exceptional situations like brutal gang rapes and murders justify exceptional measures like capital punishment.
In conclusion, one must ponder that whenever any heinous crime is committed, the attention of all the parliamentarians or legal experts is always attracted towards stricter punishments. Everyone has a tendency of treating the symptoms rather than the disease. We need to treat the cause to wipe out the disease from its roots. Instead of focusing on stricter punishments, the lawmakers should seek help from psychologists and medical science to try to understand the psyche of such criminals. What prompts them to behave in such a barbaric way? Is it patriarchy or caste discrimination? Is it the frustration of being unemployed? India does and should always do what the former US President Barack Obama also believes in, that, ‘death penalty should be applied in very narrow circumstances’.
- Bachan Singh v. State of Punjab, I.R. 1980 SC 898 (India).
- Machhi Singh v. State of Punjab, 1983 A.I.R. 957 (India).
- Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.