SHOULD CAPITAL PUNISHMENT STAY? A HUMAN RIGHT PERSPECTIVE
Authored by: Piyush Sharma
Punishments are an important tool to protect rights and interest of individuals in a free society, it’s all based upon the proposition that there must be a penalty for wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that it is essential to safeguard interest and give equitable justice and that a person who has done wrong should suffer for it. The Capital Punishment also rests on the same proposition as other punishments. The Capital Punishment debate is one of the biggest debates of all times that bounces between Human Rights and securing the interest of general individuals of a free society.
However Capital Punishment is an integral part of criminal justice system in many countries. which has always faced criticism by the increasing Human Rights questions however it can’t be denied that from time to time there has been an immense demand by the general public to bring the defense of Capital Punishment for more criminal offences to safe guard general public from criminals and brutal crimes like in NIRBHAYA’s CASE it was demanded through various huge protest throughout country by the general public to provide Capital Punishments for committing rape.
However if see it in Human Rights perspective this is an odd argument as it is not justified to take life of a human for committing a homicide and in fact, that is morally wrong Capital Punishment is to be very sparingly applied with special reasons in cases of brutal murder and gravest offences against the state.
About retention or abolition of Capital Punishment, debates are raging the world over amongst social activists, legal reformers, judges, jurists, lawyers and administrators. Criminologists and penologists are engaged in intensive study and research to know whether Capital Punishment serves the objectives of Punishment and whether complete elimination of criminals through Capital Punishment will eliminate crime from the society.
While determining the punishment for an offence it also becomes necessary to probe upon human nature, humans by their nature cannot completely good or evil this describes that we cannot categories each crime even of similar nature into same category and provide similar penalties for all crimes. Criminologists and penologists are concerned about and working on reduction of crime rate in the society. Criminals are very much part of our society and we have to reform and correct them and make them sober citizens. Social attitude also needs to change towards the deviants so that they do enjoy some rights as normal citizens though within certain circumscribed limits or under reasonable restrictions.
While we talk about reformation and rehabilitation of the criminals it also becomes prudent to recognize the interest of the victims as well as the whole society upon which the impact of the offences occur If victims realize that the state is reluctant to punish the offenders in the name of reform and correction, they may take the Law in their own hands and they themselves may try to punish their offenders and that will lead to anarchy , the same situation has been seen in various cases like while in the trial of the most complicated and highlighted murder mystery of ARUSHI , HEMRAJ MURDER CASE , One of the prime accused of the murder Mr. Rajesh talwar was assaulted by a person for their act as the legal procedure frustrated the people for long delays .
Therefore, to avoid this situation, there is a great need for prescribed and proportional punishment following Bentham’s theory of penal objectives that pain of offender should be higher than pleasure he enjoys by commission of the crime
POSITION IN INDIA
Indian criminal justice system follows Capital Punishment as in integral part of itIndia is one of the 78 retentions countries which have retained death penalty on the ground that it will be awarded only in the ‘rarest of rare cases’ and for ‘special reasons’. Indian Penal Code, 1860 awards death sentence as a punishment for various offenses. Some of these capital offences under the IPC are punishment for criminal conspiracy (Section 120B) , murder (Section 302), waging or attempting to wage war against the Government of India (Section 121), abetment of mutiny (Section 132), dacoity with murder (Section 396) and others. Apart from this, there are provisions for the death penalty in various legislations like the NDPS Act, anti-terrorism laws etc.
contrary to the above stated penal provisions in I.P.C. The Constitution of India itself under ARTICLE 21, provides a fundamental
right i.e. RIGHT TO LIFE the concept of Death penalty is against the Article 21
of the Indian Constitution which clearly
No person shall be deprived of his personal life and liberty excepted by procedure established by law
In the defence Supporter of Death penalty argue that The concept of right to life and liberty is not absolute Government have the power to deprive a person from their life and liberty in accordance to the procedure established by the law however In MANEKA GANDHI V. UNION OF INDIA Case Supreme Court The procedure established by the law must be reasonable and the provision of death penalty is directly contrary to the Article 21.
The Indian Constitution has provision for clemency of Capital Punishment by the President. Once the Sessions Court has awarded death sentence to a convict in a case, it must be confirmed by the High Court. Even after that, the convict may prefer an appeal to the Supreme Court. If this also fails the accused has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State. Detailed instructions regarding the procedure to be observed by the states for dealing with petitions for mercy from or on behalf of convicts under sentence of death and with appeals to the Supreme Court and applications for special leave to appeal to that court by such convicts are laid down by the Ministry of Home Affairs.
In this respect we may refer to Article 72 of the Constitution of India which says:
“Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases-
(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence;
(a) In all cases where the punishment or sentence is by a Court Martial;
(b) In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) In all cases where the sentence is a sentence of death;
(2) nothing in sub clause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.”
Similarly, the pardoning powers of the Governor of a State are mentioned in Article 161. These provisions ensure that the accused is sentenced to death only after there is no room for error left. The culprit gets multiple avenues to appeal and now life imprisonment has become the rule while the death sentence is the exception.
Supreme Court has also fundamentally contributed in the development and evolution of Capital Punishment in Indian criminal jurisprudence. The question regarding Article 21 and other essential aspects of Capital Punishment are elaborated by honorable Supreme Court in following judgments –
- JAGMAOHAN SINGH V. STATE OF U.P
This was a murder case which came up soon after the amendment of the Code of Criminal Procedure in 1973, wherein the imposition on the death penalty became subject to the discretion of the Court, and was no longer a mandatory sentence for murder. In this context, arguments were raised regarding the Constitutionality of the death penalty on the ground that was too wide a discretion vested in courts since no standards or guidelines were available, and that it violated Articles 14, 19 and 21
Honorable Supreme Court made following remarks upon the questions relating to
Art 19- The Supreme Court held that the right to life was not a part of Art 19 and the death could not be called unreasonable or opposed to public policy since it was a punishment which had been part of the law even before the commencement and the legislature would be presumed to know of its existence. Since it was not removed, it could only be assumed that the legislature did not think of it as unreasonable.
Art 14- Art 14
can hardly be invoked in matters of judicial discretion since exercise of
discretion in each case would be peculiar to the facts and circumstances. The
discretion given to courts is to impose the death penalty after balancing the
aggravating and mitigating circumstances and cannot be called unguided.
Art 21- The Code of Criminal Procedure lays down detailed procedure s to when death sentence can be imposed and the imposition of death sentence after all the requisites of a trial, following the procedure established by law cannot be called unconstitutional.
A batch of Writ
Petitions was filed in the Supreme Court challenging the Constitutional validity of allowing the
death penalty as an alternative punishment for murder.
The decision in Jagmohan was affirmed with some changes. The only significant change from Jagmohan to Bachan Singh was that the scope of Art 19 and 21 was expanded by interpretation given to these in Menaka Gandhi. Also, India had become a party to the International Covenant on Civil and Political Rights. The Court held that this fact has no impact on the Constitutionality of death penalty. The covenant did not outlaw death penalty.
Art 19 – Art 19 can be invoked only when one of the freedoms mentioned in it are infringed. Since the right to life is not a part of Art 19, it cannot be invoked to determine the Constitutionality of section 302 of the IPC which provides death penalty as an alternative punishment for murder. The death penalty can’t be called unConstitutional merely because it indirectly, incidentally or remotely affects the freedoms mentioned u/a 19. In answering whether the death penalty serves any penological purpose, the Court held that it would not be right to decide the issue judicially since it was a highly contested debate with strong divergent views on both sides.
The Court clarified Jagmohan and held that the mandatory requirement of a pre-sentencing hearing introduced in the CrPC made it necessary not only to consider the circumstances of the crime, but also that of the criminal.
RAREST OF RARE CASE PRINCIPLE
Supreme court has said in various judgments that death penalty must be restricted to the “rarest of rare” cases, this view of Supreme Court was very much favored to minimize the use of Capital Punishment to penalize the criminals, but this view of highest court was contradicted by the legislation by increasing the number of crimes for which Capital Punishment is awarded.
- RAJENDRA PRASAD V. STATE OF UTTAR
The appellant had earlier been given life sentence for murder and had been granted pardon; on his release he again committed murder. The case came up as a criminal appeal and the Court was to determine whether the case qualified as having ‘special reasons’ required under the CrPC to impose death sentence.
Art 21- To hold that the discretion is ruled by well recognized principles alone is not sufficient. It must be further demarcated what these principles are so that the practice of the discretion does not militate against Art 21’s mandate of fair and non-arbitrary procedures. Special reasons for giving death sentence cannot pertain only to the crime but must account for Human Rights and the fundamental freedoms given in the Constitution. The reasons must show why life sentence would not suffice. Since taking life destroys the dignity of a person, the reasons must show why such a drastic step is justified, consequently, it can only be in exceptional circumstances that such a step must be taken.
Art 19- The death sentence abrogates the fundamental freedoms guaranteed u/a 19 and therefore the exercise of the discretionary power to impose the death sentence must show that such a sentence is a reasonable restriction otherwise it would be violative of the Constitution.
One of the tests is to determine if the person poses a traumatic threat to the survival of the social order. The compelling reason to impose the death sentence must arise from a threat posed by the person to social justice and where the peril to social security is to such an extent that extinction of such a person becomes essential for the survival of society.
POST BACHAN SINGH
- MACHHI SINGH AND ORS. V. STATE
17 members of a family were murdered due to an on-going feud between two families. Death sentence was given to the appellants by the Trial Court and the sentence was confirmed by the High Court. In appeal before the Supreme Court, the question was whether the case satisfied the standard of ‘rarest of the rare’ laid down in Bachan Singh.
In assessing the various aggravating and mitigating circumstances as per Bachan Singh, the Court held that there may be circumstances (based on the depravity of the crime, crimes committed against minority communities or those which are of a nature arousing social wrath, power relations between the offender and the victim etc) where the collective conscience of the society is so shocked that it mandates the imposition of the death sentence.
- RAVJI ALIAS RAM CHANDRA V.
STATE OF RAJASTHAN
The appellant was convicted and sentenced to death for the murder of his wife and three minor children and a neighbor. The lower courts held it to be a cold-blooded and premeditated murder which merited death. The Supreme Court had to decide whether the rarest of rare standard was met.
The Court applied the deterrent and retributive theories of punishment in this case. Looking at the facts and circumstances, the court held that the appellant had a duty to protect and care for his wife and children. The brutality and heinousness of the crime, without any provocation, was sufficient to merit death. The Court held that the nature and gravity of the offence and not the criminal were germane to the imposition of punishment.
- SWAMY SHRADDANANDA & MURALI
MANOHAR MISHRA V. STATE OF KARNATAKA
The appellant was sentenced to death by both the trial court and the High Court. On appeal to the Supreme Court, the conviction was upheld by the Division Bench but they did not agree on the Punishment. While one judge thought that life imprisonment would suffice as it was not a case of rarest of the rare, the other judge was of the opinion that life imprisonment was insufficient as a sentence here since the remission powers of the executive effectively means that the sentence could be remitted after 14 years. On the question of sentence, the case was referred to a larger Bench.
The Court held that it was within the power of the Court to stipulate that in certain cases, life imprisonment would mean that the convict would not be released for the rest of his natural life. This special category would be in accordance with the rarest of rare standard since the mere fact that life imprisonment as understood conventionally (allowing for remission) is not sufficient reason to impose the penalty of death on a person. The sentence of life given as a substitute for death would be strictly followed.
- SANTOSH KUMAR SATISHBHUSHAN
BARIYAR V. STATE OF MAHARASHTRA
This was a case
of kidnapping for ransom by four persons which lead to the murder of the person
held hostage. The question before the Supreme Court was what weight should be
given to mitigating circumstance while considering whether or not to impose the
The sentence was reduced to one of rigorous imprisonment for life relying on the doctrine of proportionality and rehabilitation. The Court held that the principle of proportionality as generally understood cannot be applied since the judicial discretion to impose the death sentence has to be read in conjunction with Art 21. The standard laid down in Bachan Singh and Machi Singh should be seen as an extension of the Constitutional scheme. The emphasis is on rehabilitation and the understanding is that life imprisonment is the rule and death sentence is the exception. Therefore, even though all mitigating circumstance may not have equal value, since Bachan Singh has laid a positive duty on the State to show that there is no possibility of reform or rehabilitation, it must be given due consideration by courts before exercising its discretion. Art 14- Equal protection applies to the sentencing stage and therefore there must be a pool of capital defendants equally circumstanced in respect of gravity, nature, motive, aspects relating to socio-economic conditions. Aggravating and mitigating circumstances have to be identified separately, but no such comparative review is required for the imposition of death.
Art 21- The sentencing process must find a rational and objective connection between Capital Punishment and its purpose and the special reasons should satisfy the comparative utility of giving death over life imprisonment.
- SANGEET V. STATE OF HARYANA
multiple accused who were convicted for various offences under the IPC
(including murder) and the Arms Act. The Supreme Court had to consider whether
the case fell in the category of rarest of rare.
The sentence was commuted to life imprisonment. The court observed that the aggravating circumstances pertained to the crime while mitigating circumstance referred to the criminal. Both are distinct elements which cannot be compared. Further, though Bachan Singh sought to shift the focus from the crime to the crime and the criminal, the notion of principled sentencing hasn’t taken root and the circumstances of the criminal seems to have taken a backseat. Machi Singh tried to standardize the procedure but the effect has been that sentencing has become judge centric and is not being applied uniformly. In light of this, the Court held that where there is considerable uncertainty as to propriety of punishment, awarding of life imprisonment does not stand unquestionably foreclosed. Moreover, when there are inconsistencies in evidence then the death sentence must not be imposed, even if the evidence is held to be sufficiently proved to convict.
The United Nations (UN):
The UN General Assembly recognized that in case of Capital Punishment there is a need for high standard of fair trial to be followed by every country. Procedures to be followed must be just, fair and reasonable.
Article 5 of the Universal Declaration of Human Rights 1948 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.Article 7 of the International Covenant on Civil and Political Rights (ICCPR) 1966 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.By several resolutions the United Nations suggested protection of Human Rights of the persons facing Capital Punishment which were again approved by Economic and Social Council in resolution No. 50 of 1984.
These may be summarized as follows:
- Countries which have not yet abolished Capital Punishment may impose it only for the most serious crimes;
(II) Capital Punishment may be imposed only in case of serious offences according to established law for the time being in force. There must not be any retrospective effect of the punishment;
(III) Young persons at the time of commission of crime, whose age was below16 years, should not be awarded death penalty;
(IV) Death penalty must not be imposed upon pregnant women or on new mothers or insane persons;
(V) Capital Punishment must be imposed after following fair procedure according to Article 14 of the ICCPR and when guilt is clearly proved leaving no room for reasonable doubt or alternative explanation of the fact;
(VI) Any person sentenced to Capital Punishment shall have right to appeal to the higher court and steps should be taken to ensure him right to appeal;
(VII) Any one sentenced to Capital Punishment should be given the right to seek pardon or commutation of sentence;
(VIII) When appeal, pardon or commutation of sentence proceeding is pending, Capital Punishment shall not be executed;
(IX) Execution of Capital Punishment must be by way of minimum possible suffering.
Following the resolutions of the European Union and the United Nations, several countries abolished death penalty completely. For example, Germany is a death penalty-free zone.
However, China imposed maximum death penalty. Saudi Arabia, Iran, Iraq, the United States of America (USA) are also in the first row so far the application of Capital Punishment is concerned. In England it was abolished by the Murder (Abolition of Death Penalty) Act, 1965 though at the end of 18th century about 200 offences were punishable by death.
GROUND REALITY OF DEATH PENALTY
The main aim behind any punitive measure is fundamentally to provide justice, for which there are several theories of punishment such as deterrent theory, preventive theory, retributive theory, reformative theory, rehabilitative theory and so forth.
DETERRENT THEORY OF PUNISHMENT emphasizes more on protection of society from offenders by eliminating offenders from society. According to this theory there are certain objectives of punishment that criminals should be deterred from breaking the Law, and deterrent punishment such as Capital Punishment should be an example to society and persons who have tendency to commit similar crime; and that if any one commits such a crime, he will be punished in the same manner. In this way it prevents people from breaking the law and it reduces crime rate in the society by elimination of criminals.
Therefore, this theory has four justifications
(3) Elimination and
(4) Exemplary threat to potential criminals in the society.
There is very less evidence to prove that the deterrent punishment method helps in reducing the crime from the society , it is apparent that in India for various criminal offences like murder , death penalty is an optional punishment , still we cannot say that with such highly deterrent provision has reduced murder cases .
According to annual statistical report 2018 conducted by a project called ARTICLE 39A , associated with national law university , trial courts of India have imposed 162 death penalties on the convicts of various offences , the 162 death sentences imposed by trial courts in 2018 is the highest in a calendar year since 2000. The year also witnessed the legislative expansion of the death penalty for non-homicide offences, most prominently for sexual violence against children.
However, the Supreme Court moved in the opposite direction, commuting 11 out of the 12 death sentence cases it decided in 2018 which shows that in most of the cases the apex court was inclined towards commutation of sentence to life imprisonment instead of continuing the death penalty and its execution this shows the current judicial trend relating to Capital Punishment.
The research also highlights various short comings of these punishments according to the survey, the research has highlighted that there are various unfair similarities between the people who have been so far convicted for Capital Punishment these are –
According to the national figures, 74.1% of the prisoners sentenced to death in India are economically vulnerable according to their occupation and landholding. Amongst the states with 10 or more prisoners sentenced to death, Kerala had the highest proportion of economically vulnerable prisoners sentenced to death with 14 out of 15 prisoners (93.3%) falling in this category. Other states which had 75% or more prisoners sentenced to death belonging to the ‘economically vulnerable’ category were Bihar (75%), Chhattisgarh (75%), Delhi (80%), Gujarat (78.9%), Jharkhand (76.9%), Karnataka (75%) and Maharashtra (88.9%).
23% of prisoners sentenced to death had never attended school. A further 9.6% had barely attended but had not completed even their primary school education. Amongst the states with a substantial number of prisoners on death row, Bihar (35.3%) and Karnataka (34.1%) had the highest proportion of prisoners who had never attended school. Kerala is the only state (amongst those states with 10 or more prisoners sentenced to death) where all prisoners had at least attended school.
While the national ratio for prisoners sentenced to death who did not complete their secondary education is 62%, states like Gujarat (89.5%), Kerala (71.4%), Jharkhand (69.2%), Maharashtra (65.7%), Delhi (63.3%) and Uttar Pradesh (61%) had a large proportion of prisoners under this category.
CASTE AND RELIGIOUS PROFILE
76% (279 prisoners) of prisoners sentenced to death in India are backward classes and religious minorities. While the purpose is certainly not to suggest any causal connection or direct discrimination, disparate impact of the death penalty on marginalized and vulnerable groups must find a prominent place in the conversation on the death penalty.
While the proportion of Scheduled Castes/Scheduled Tribes (SC/ STs) amongst all prisoners sentenced to death in India is 24.5%, that proportion is significantly higher in Maharashtra (50%), Karnataka (36.4%), Madhya Pradesh (36%), Bihar (31.4%), Jharkhand (30.8%) and Delhi (26.7%), amongst states with 10 or more prisoners sentenced to death. Religious minorities comprised a disproportionate share of the prisoners sentenced to death in Gujarat, Kerala and Karnataka. In Gujarat, out of the 19 prisoners sentenced to death 15 were Muslims (79%), while 60% of the prisoners sentenced to death in Kerala were religious minorities (five Muslims and four Christians amongst 15 prisoners sentenced to death). Of the 45 prisoners sentenced to death in Karnataka, 31.8% were religious minorities (10 Muslims and four Christians)
In India, Capital Punishment has been practiced since ancient times. Many countries abolished Capital Punishment11. When we look at our national crime statistics death penalty has not proved to be deterrent for doing offence, the crimes rates are increasing only. We have to reform our laws especially for death penalty in India. Our laws should reform and the punishment should be so rigors and it should be an example for people around him, about his unlawful acts. There is a punishment worse than death penalty. Make the offender continuous discussion about Capital Punishment and the rigorous life in prison is worse than Capital Punishment. Each day and night the offender should feel for his offence. The Capital Punishment is not effective to reduce crimes in Society. Hence null hypothesis proved.
In India the issue of death sentence is hotly debated and has attracted the attention of general public as well as government and non-governmental organizations. Though India is an active member of the United Nations and has signed and ratified most of the International Instruments on human rights, Capital Punishment still remains in our statute book. According to our judiciary it must be imposed in exceptional cases i.e. in rarest of rare cases with special reasons.
In the words of P.N. Bhagwati, J. in Bachan Singh v. state of Punjab “the judges have been awarding death penalty according to their own scale of values and social philosophy and it is not possible to discern any consistent approach to the problem in the judicial decisions”. Therefore, whether the sentence will be for death or for life imprisonment depends, in a large measure, on the court or composition of bench of the court.
We have seen earlier about execution and commutation of death sentences into life imprisonment, there are several judgments which show that there are no fix principles to determine delay and other factors in the similar cases. Even in Dhananjay Chatterjee’s case there was fourteen years’ delay in execution of death sentence but it was not commuted to life imprisonment although in some earlier cases two years, two and half years, three years and nine years delay in execution was treated as violation of Human Rights and fair procedure and their sentences were commuted to life imprisonment. Is this not a violation of articles 14 and 21 of the Constitution which enshrine fundamental and sacrosanct rights of human beings?
Due to arbitrary and discriminatory decisions and unjust procedures, basic rights of accused are violated in inhuman and brutal manner which are not only contrary to the National Human Rights principles envisaged in the Constitution but also contrary to the Universal Human Rights ethos. In order to serve as a just and effective mechanism for administration of justice to all sections of society, law should be nourished by and nurtured in human rights. There is nothing to prove the fact that extreme measure of death sentence reduces crime rates in contemporary society; rather death sentence has failed as a deterrent. Life imprisonment is enough for deterrence as well as for mental and moral metamorphosis of a human being
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- PROJECT 39A
- BUREAU OF JUSTICE STATISTICS
. Maneka gandhi V/S Union of India , 1978 AIR 597, 1978 SCR (2) 621
 . Jagmohan singh v. state of u.p (1973 (1) SCC 20)
 . Bachan singh v. state of punjab (1980 (2) SCC 684)
. Machhi singh and ors. v. state of punjab , (1983) 3 SCC 470
. Swamy shraddananda & murali manohar mishra v. state of karnataka (2008) 13 SCC 767
. Santosh kumar satishbhushan bariyar v. state of maharashtra , 2009 (6) SCC 498
. Dhananjoy Chaterjee vs State Of W.B , 1994 SCR (1) 37, 1994 SCC (2) 220