Relevance: GS-2: Judiciary, Government Policies & Interventions, Issues Arising Out of Design & Implementation of Policies.

Key Phrases: Rarest of Rare Principle, Project 39A, Law Commission 262nd Report, Deterrent Effect, Retribution, Rehabilitation.

Why in News?

• Supreme Court for the past six months, while dealing with appeals against the confirmation of the death sentence has examined sentencing methodology from the perspective of mitigating circumstances more closely.
• A recent trend in the evolution of jurisprudence around the death penalty in India may reset judicial thinking around sentencing and have long-term ramifications in the awarding of capital punishment.
• The Apex Court has also initiated a suo-motu writ petition (criminal) to delve deep into these issues on key aspects surrounding our understanding of death penalty sentencing.
• The present trajectory of judicial thinking will not only reaffirm the fundamentals of the rarest of rare principle but also lead a new wave of thinking in the jurisprudence around capital punishment.

Capital Punishment:

• Capital punishment is the punishment which involves the legal killing of a person who has committed a serious crime such as murder.
• It is a legal punishment in India and is permissible for some heinous crimes like Murder, Rape etc. under the country’s main substantive penal legislation, the Indian Penal Code, 1860, as well as other laws.

Arguments in Favour of Capital Punishment:

• Deterrent Effect: By executing convicted criminals, we would be able to deter would-be criminals from committing heinous crimes in future.
• Retribution: One of the key principles of retribution is that people should get what they deserve in proportion to the severity of their crime. Thus death penalty needs to be awarded to those who commit severe crimes
• Rehabilitation: Capital punishment, of course, does not rehabilitate the prisoner and bring them back to society. But there are many examples of people condemned to death taking the opportunity to repent, express remorse, and very often experience deep spiritual rehabilitation from time to time before execution. Thomas Aquinas noted that by accepting the punishment of death, the offender was able to expiate his evil deeds and so escape punishment in the next life.
• Closure for Victim’s family: Death penalty is said to provide emotional closure for victims of crimes.
• The incentive to help the Police: In most countries, plea bargaining is used. It is the process by which a criminal receives a reduced sentence in exchange for providing assistance to police. Where the possible sentence is death, the prisoner has the strongest possible incentive to try to reduce his sentence, even to life imprisonment without the possibility of parole, thus giving the police a useful tool.

Arguments Against The Capital Punishment:

• No Strong Evidence: There is no evidence to show that the death penalty is an effective deterrent to crime.
• Death has been prescribed as a punishment for murder since 1860 (the year IPC was drafted), still, murders continue unabated.
• Death has been prescribed in rape cases since 2013 (Sec 376A), still, rapes continue to happen and in fact, the brutality of rapes has increased manifold.
• Execution of the Innocent: The most common argument against capital punishment is that sooner or later, innocent people may get killed, because of mistakes or flaws in the justice system.
• Moral grounds: Human rights activists argue that death penalty is sanitized form of vengeance and takes away the scope of reform/rehabilitation of criminals.
• Natural Rights: State is an institution created by Man whose primary purpose is to protect life. It is not within the purview of the State to take away life which is given by God/Nature.
• Right to Life: The guarantee of the right to life of all in a democratic country remains enshrined in the Constitution. The death sentence for any person violates his constitutional right.
• According to Mahatma Gandhi, the right to end life has to be with the one who gave life and hence the death penalty is against non-violence.
• Cycle of Suffering: The family of the person receiving the death penalty does not get a respectable place in society. Thus by giving the death penalty to a person, the right to life is violated in the dignity of that entire family.

Supreme Court on the Death Penalty:

• Jagmohan Singh v. State of UP 1973 case: The Supreme Court held that according to Article 21 deprivation of life is constitutionally permissible if that is done according to the procedure established by law.
• Thus the death sentence imposed after a trial in accordance with legally established procedures under Cr.PC and the Indian Evidence Act, is not unconstitutional under Art. 21.
• Rajendra Prasad v. State of UP 1979 case: The Supreme Court held that, if the murderous operation of a criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.
• Bachan Singh v. the State of Punjab 1980 case: A Constitution Bench of the Supreme Court propounded the dictum of ‘rarest of rare cases’ according to which death penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed.
• Machhi Singh v. State of Punjab 1983 case: The Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not.
• In 2015, the Law Commission called for the abolition of the death penalty for ordinary crimes, and activists continue to argue for abolishing it altogether.

The global Situation of Capital Punishment:

• Death penalty has been completely abolished in countries like the Netherlands, Switzerland, Denmark, Portugal, and England.
• Death penalty was once abolished in Australia, Romania, and Germany but has been reintroduced after problems arise.
• Death penalty has not been legally abolished in Belgium but capital punishment has not been given for many years.
• In countries like India, China, Myanmar, Pakistan, Russia, Japan, and Indonesia the death penalty is still in use.

Conclusion:

• The Law Commission in its 262nd report proposed that the death penalty should be abolished for all crimes excluding terrorism-related offences and war.
• Although death for death leads society to barbarism, it is also true that there should be a provision of appropriate punishment for the offender for violating the right to life and the increasing heinousness of crimes at present suggests that the abolition of capital punishment at present can cause problems.
• But in a progressive democratic society where socioeconomic justice has been established, the chances of heinous crimes will be very less. Thus, to eliminate crime in place of capital punishment, efforts should be made towards establishing social and economic justice.

Sources: The Hindu

Mains Question:

Q.Recently, the Apex Court has initiated a suo-motu writ petition to delve deep into issues on key aspects surrounding our understanding of death penalty sentencing. In this context discuss the death sentence as a form of punishment? Do you agree with the idea of the abolition of capital punishment? Justify your views?