Over the course of last century, innumerable debates have been put forth which opposed the policy of death penalty in any legal system. Unlike any other punishment, capital punishment once awarded and executed, cannot be reversed. Also, the reason why capital punishment was incorporated, at first place, was to serve as deterrence to others from committing similar offences and to prevent rise of such heinous crimes.
The theory of punishment includes retribution, deterrence, rehabilitation or incapacitation. In the case of the death penalty, the punishment meted out are for, incapacitation (where the end goal is to protect society and to prevent the offender from committing further crimes), retribution (where the offender suffers proportionately for breaking the law) and deterrence (where due to the threat of punishment, lesser crimes are probable).
AN ARGUMENT FOR ABOLITION OF DEATH PENALTY
International Covenant on Civil and Political Rights was adopted by UN that requires a progression towards abolition of death penalty was ratified by several nation, including India. Although death penalty has become an exception from rule in India after the amendment of CrPc, 1973, the Law Commission in its 35th report, published in 1967, had analyzed the need for retention of capital punishment in the legal system in India. In Indian context, the case of Bachan Singh v. State of Punjab laid down certain parameters which needs to be adhered to before an accused is awarded capital punishment. Further, in Macchi Singh & Others v.. State of Punjab three Judge Bench followed the decision of Bachan Singh and stated that only in rarest of rare cases when collective conscience of community is in such a way that it will expect the holders of the judicial powers to inflict death penalty then it can be awarded. But, implementation of these principles are laid down in an arbitrary manner by the judge hearing such case. NLU-D report on death penalty, named Project-39A, has highlighted the sorry state of Indian Judiciary when it comes to understanding and implementing of principles enunciated in Bachan Singh’s case. Ravji @ Ram Chandra v. State Of Rajasthan is one incident where Supreme Court overruled Bachan Singh’s case and held that “It is the nature of and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment in a criminal trial.” It took Supreme Court more than a decade and six cases until it realized the flawed ratio in Ravji@Ram Chandra case and declared the case per incurium.
While the constitutional validity of death penalty has been challenged several times before various courts in India, the judiciary have had diverse opinion about retaining of death penalty. The courts after extensive discussions, have rejected the pleas challenging its abolition. Jagmohan Singh v. State of U.P was the first incident were abolitionists challenged the constitutional validity of death penalty on grounds of it being violative of several rights enshrined under the constitution. The claims were rejected by Supreme Court with the reasoning that awarding of death penalty was valid as it is done in accordance with due procedure established by law. The Law Commission of India opined in its 35th report that “India cannot risk the experiment of abolition of capital punishment” but some of the recent ventures of the Law Commission of India, oddly, have involved exploring alternative methods of putting condemned persons to death.
Justice Krishna Iyer, of the Supreme Court, is among one of the few judges who took a stand for the abolition of death penalty in India. His judgments show a different aspect of the penalty where he tries to contemplate the emotions of the accused to find out the reasons which eventually led to the crime. Ediga Anamma v. State of Andhra Pradesh is an important judgment delivered by Justice Iyer, in which it was held that the crime and criminal are equally material while deciding the sentence.
With Nirbhaya incident in Delhi, none of the objectives of the theory of punishment have been met. The courts, from trial to apex, concurred on awarding death penalty to all the accused. In 2017 the final punishment was awarded which was executed in March, 2020. But the question still remains, whether the purpose has been served? According to the latest National Crime Records Bureau (NCRB) report, the crimes against women have increased from 41761 in 2016 to 42180 in 2018. According to India Today, as many as 33,356 incidents of rape were reported during 2018 involving 33,977 victims, an average 89 rapes daily. Compared to the 32,559 rape cases registered in 2017, it is clear that there has been an increase. The objective with which death penalty is retained in Indian criminal system has failed to achieve its purpose to a great extent.
In the last few years, Supreme Court has entrenched the punishment of “full life” or life sentence of determinate number of years as a response to challenges presented in death cases. The Supreme Court speaking through a three-judge bench decision in Swamy Shraddhanand case laid the foundation of this emerging penal option. The observations in Swamy Shraddhanand case have been followed by the Court in a multitude of cases such as Haru Ghosh v. State of West Bengal, State of Uttar Pradesh v. Sanjay Kumar, Gurvail Singh v. State of Punjab where full life or sentence of determinate number of years has been awarded as opposed to death penalty. The Law Commission of India in its 262nd Report recommended that death penalty be abolished for all crimes other than terrorism related offences and waging war. Recently, in the case of Chhannulal Verma v. State of Chattisgarh, the Supreme Court refused to hold that the convict was beyond reformation in the absence of a psychological/psychiatric assessment and evaluation. Despite these guideline issued by the apex court, there is no stringent implementation of the same, thereby leaving the convict at the mercy of the judge and not law.
Thus, the overall larger picture of criminal justice system in India needs to be revamped to develop a comprehensive, progressive system which is at pace with changing times and scenarios. The courts cannot remain oblivious to factors which play role in commission of a crime, nor should they attribute certainty to an uncertain incident. In the case of Vodafone International Holdings BV v. Union of India the apex court has stated that certainty is integral to the rule of law. Criminal case, unlike civil case, does not establish with utmost certainty the guilt but only establishes beyond reasonable doubt the guilt of the person. There have been instances in past where courts have sent innocents to gallows only to realize later that they were innocent. It is time death penalty is done away with in India and, in words of Justice V.R. Krishna Iyer there should be Death sentence on death sentence.
ABOUT THE AUTHORS
Anand Amit is a final-year law student from National University of Advanced Legal Studies, Kochi. He has a keen interest in criminal law, property law and Corporate Litigation.
Steven is in his final year of BA LLB at the National University of Advanced Legal Studies, Kochi. He has a keen interest in Competition Law, Sports Law, and Taxation.