The LexGaze Weekly - COVER STORY

THE “CAPITAL PUNISHMENT” DEBATE

Saksham Grover

Dec 20, 2020

Issue 25

In recent years, there has been a heated debate around the efficacy of “death penalty” or “capital punishment”. Considering the ever-changing circumstances and reforms in the 21st century, the discussion is certainly a relevant one. Death penalty forms a vital part in the Indian criminal justice system. Every punishment rests on two major premises. Firstly, the belief that there must be a penalty for wrongdoing and secondly that inflicting penalty would deter similar wrongdoings in the future. For some time now, there have been several attempts to abolish capital punishment, in law or in practice. However, the efforts to abolish capital punishment in India faces tremendous challenges in terms of extensive public outcry for “swift” and “summary” executions. With the reactions to murders in Hyderabad, Kathua, and Unnao, as well as the eminent execution of the four convicts in the Nirbhaya case, stricter punishments are receiving huge public support.


The ethical foundation of the death penalty has always been distrusted. In 2007, the United Nations General Assembly passed a resolution seeking a global moratorium on the administration of the death penalty by the countries that retained it. India was one of them. Although judicial killings in India are not as frequent as countries such as Iran, China, Saudi Arabia, etc., the debate over its pros and cons often comes to the fore.


EYE FOR AN EYE?

People often argue that India’s political and legal circumstances are such that it should not “experiment” with the abolition of the death penalty. Following the heinous gang rape in December 2012, few amendments were introduced to the Indian Penal Code, making certain categories of rapes punishable with death. Further, in 2018 India also introduced the death penalty for those who rape minors. Being “tough on crime” is the central argument to support death penalty. Our society has always used punishment as a means to discourage crimes. In fact, the purpose of a legal system is not just to protect its citizens but also to ensure that the people believe that justice will be upheld and crimes will be punished adequately.


Thus, there are several pertinent questions that arise. What punishment should be enforced to commensurate with the crime? Should the offenders be allowed to languish in prison for life at the expense of taxpayers? What punishment would serve the ends of justice? What punishment would do justice to the victim and their loved ones? The fear of death does have a deterrent effect on the human mind and the number of mercy petitions filed by death row inmates only corroborate this.


THE “RAREST OF RARE” CONUNDRUM

On the other hand, death penalty has also been criticized, majorly on two grounds: arbitrariness and violation of human rights. Prior to amendment in 1955, the Criminal Procedure Code required a Court to state the reasons why it was not awarding death sentence to a person convicted of an offence punishable with death. The Law Commission of India endeavored to examine the need for death penalty on two different occasions. Unlike the 35th report, the Law Commission in its 262nd report recommended abolition of death penalty, except in case of terrorism, waging war and related offences.


Moreover, the lack of practical implementation due to the lengthy and sometimes arbitrary judicial processes have restricted the irreversible punishment to the minimum. Nevertheless, a Constitution Bench of the Supreme Court of India resisted the challenge in Jagmohan Singh v. State of U.P. [(1973) 1 SCC 20], the first ever case questioning the constitutionality of death penalty. The developments following the judgment in Jagmohan made way for another case, Bachan Singh v. State of Punjab [1980 (2) SCC 684 which again challenged the constitutionality of death sentence. In this case, the Supreme Court propounded the “rarest of rare” doctrine and since then, death sentence is an exception and not a rule. The Court, in this regard, observed that:


“Death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”


India has been voting against the UN Resolution pursuing the moratorium on death penalty. According to the Amnesty International Global Report, a total of 142 countries had abolished death penalty in law or practice by the end of the year 2019. Capital punishment not only denies the prospect of rehabilitation but is also an affront to basic human rights of a person.  Certainly, there are numerous reasons to abolish death penalty in toto. However, the retention of capital punishment is necessary to curb heinous crimes. Keeping in view the Indian legal and political climate, complete abolition of death penalty will only be a wrong gesture, impairing the public’s faith in the justice system.