Events
& Issues
New Delhi, 13 December 2018
Death Penalty
REOPENING DEBATE
By Dr. S Saraswathi
(Former Director, ICSSR, New Delhi)
Justice Kurien
Joseph, on the eve of his retirement, delivered a judgement commuting the death
sentence of a convict to life imprisonment, and recommended review of the need
for death penalty especially its purpose and practice. This sentence was
unanimously passed by three judges in a triple murder case, but the two other
judges disagreed with the need for review of retaining capital punishment.
Justice Joseph said
that the courts had been imposing the death penalty “arbitrarily and
freakishly” all these years – an observation with which the other two judges
did not agree. Capital punishment, in his opinion, had failed to achieve “any constitutionally
valid penological goals”.
He said that without a
psychological and psychiatric assessment and evaluation, it would not be proper
to hold that there is no possibility or probability of reform.
The guidelines for
awarding death sentence mention that life imprisonment is the rule and death
penalty an exception to be inflicted only when other options are inadequate.
The circumstances of the offender must be taken into account along with those
of the crime. Aggravating and mitigating circumstances must be weighed to
strike a just balance.
A three-judge bench
recently held that death row convicts deserved an explanation why the apex
court concluded that they deserved to be hanged for their crime. For, there was
a tendency to dismiss appeal against death penalty given by a lower court
without assigning any reason. The present Chief Justice is reported to have
remarked in a recent case that even when a crime is heinous or brutal, it may
not still fall under the category of “rarest of rare”.
It was in Bachan
Singh versus The State of Punjab, the theory of “rarest of rare cases” was
evolved by the Supreme Court in 1980 to award death penalty by which the
mandatory death penalty for murder provided in Section 302 of the IPC was
amended. It also spelt out some guidelines to determine the nature of that
criteria. It was a case relating to dastardly murder of two girls to wreak vengeance
on their mother. However, there are no consistent criteria laid down by the
Supreme Court for death punishment.
Death sentence is
retained in the IPC for several offences under Sections 120 B, 121, 132, 302,
and 396. The crimes relate to waging war against the State, dacoity and murder.
Increasing instances of rape cases including minor girls and even children have
led to more stringent punishments. In 2018, Section 376A was inserted in the
IPC to provide for death penalty for rape of minor girls.
However, death
sentence is not mandatory for any offence leaving considerable amount of
discretion with the judges. Suggestions to make it mandatory for certain
offences were ruled out by the Supreme Court both in India and the US. Attempts
to abolish capital punishment by law made in 1956, 1958, and 1962 did not
succeed. The dissenting judgement of justice PN Bhagwati in 1980 case suggested
that death penalty to be valid should be a unanimous verdict as it is
irreversible and there is no way of rectifying any error in the judgement.
Three issues are
involved in death punishment -- desirability in view of other available
options, constitutionality determined on legal basis, and proportionality
relating to the gravity of the offence and the way it is committed.
Death penalty has
been abolished in the UK and several democratic countries in Europe, Canada
and, Australia in the last 50 years, and contrastingly revived in Sri Lanka and
Pakistan showing that there are certain valid grounds for
differences in the question of
abolition of this extreme punishment. The US has retained the punishment, but
15 States in that country do not have capital punishment.
Drug-related offences
are awarded death sentence in many countries – Afghanistan, Bangadesh, Brunei,
China, Egypt, UAE, Singapore, Sri Lanka, Thailand and many others caught in the
trap as producing, manufacturing or transit countries.
In 2007, the Third
Committee of the UN General Assembly passed a non-binding Resolution for a
global moratorium on execution. It states, “There is no conclusive evidence of
death penalty’s deterrent value and that any miscarriage or failure of justice
in the death penalty’s implementation is irreversible and irreparable”. The
call for moratorium on death penalty was repeated by the UN General Assembly in
2008 and 2010. Nations retaining death penalty are required to provide the UN
Secretary-General with information about the use of and safeguards taken in
this extreme punishment.
In India, the Law
Commission has dealt with the question of death penalty in several reports. The
35th Report of the Commission in 1967 was devoted to “capital
punishment” and 187th Report of 2003 on “execution of death
sentence” did not recommend abolition of this extreme punishment, but dealt
more with humane methods of executing the sentence. In 2015, the Commission
noted that there was no principled method to remove arbitrariness from capital
sentencing and called for review of this punishment. India then was one of the
59 nations that retained death penalty, while 140 had abolished it, and 20
others had it in the statute book without using.
Organised crime is increasing
due to misuse of several technological innovations. Underworld dons, hired criminals,
middlemen in crime industry are a growing lot and terrorism has become an
international operation. Countries that have not abolished death penalty find
themselves in a position where they cannot afford to do away with this severe
punishment whatever humanitarian ideas may preach or prompt. What is possible
is to give all chances for the offenders to reform and reserve the punishment
for the utterly useless cases of positive danger to the society from the
criminal.
Terrorist attacks,
mob violence, planned political murders, and brutal killings to wreak personal
vengeance or satisfy personal desires are increasing despite death penalty. Mob
lynching and honour killing have grown. Judicial authorities have to believe in
preventing recurrence of crimes by inflicting punishment commensurate with the
severity of crimes in the interest of safety and security of the society.
Cases involving
specific individual victims and crimes against masses have to be distinguished.
Already there are provisions for post-appeal reviews and curative petitions against
death sentences. There is provision for appeal for pardon to the President of
India.
Controversies also
surround over remission of death sentence and mode of execution of death. They
are different from abolishing death sentence altogether and hence should be
governed by liberal laws providing maximum concession to the convict in keeping
with progress in humanitarian ideas.
Awarding death
penalty can best be left to the trial courts before which all facts and
circumstances of the incidents are presented and argued. As long as there is no
accepted definition of “rarest of rare cases”, the discretion of the judges
cannot be removed. We have to put trust in the judgement of the judges who
definitely cannot have any pleasure in sending anybody to gallows, but will
spare everyone who has even an iota of inclination to reform. Possibility of
miscarriage of justice should be totally eliminated by liberal application of
the benefit of doubt.
Indeed, there is
reason to debate the issue again.---INFA
(Copyright, India
News & Feature Alliance)
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