Should Death Penalty be abolished in India?

Latest update on the debate of Death Penalty:

The Home Ministry had recently proposed to all the States and Union Territories to abolish the Death Penalty. As a result to the proposal, 12/14 States and Union Territories have expressed the need to continue with the practice of Capital Punishment. Only Karnataka and Tripura want the practice to be abolished. This fresh proposal has further ensured that India will stay amongst the minority of countries who allow the punishment of Death Penalty.

Death Penalty or Capital Punishment: 

It is a government sanctioned practice whereby a person is put to death by the state as a punishment for the gravest of crimes such as: murder, acts of terrorism, gang rape, etc.

History:

In 2015 report by the Law Commission on “The Death Penalty”, which was then headed by Justice (retd) Ajit Prakash Shah, the Commission proposed the abolition of capital punishment “for all crimes other than terrorism-related offences and waging war.” 

The Law Commission in its 2015 report further stated that: 

“…The notion of ‘an eye for an eye, tooth for a tooth’ has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals… In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems… such as poor investigation, crime prevention and rights of victims of crime.”

According to the Law Commission Report, India is currently drowning in the minority of countries such as China, Iran, Iraq and Saudi Arabia that still carry out executions. By the end of the year 2014, the punishment of death penalty had been abolished by 98 countries.

Some recent cases of the use of Capital Punishment:

The recent executions in India included the execution of 26/11 terrorist Ajmal Kasab in November 2012, 2001 Parliament attack convict Afzal Guru in February 2013, and 1993 Bombay bombings convict Yakub Memon in July 2015. 

After the execution of Afzal Guru in 2013, the Supreme Court had further ordered the Law Commission to examine “whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.”

Some SC observations on the issue of Death Penalty while hearing certain cases:

In his minority judgment in Bachan Singh vs State Of Punjab (May 9, 1980), delivered on August 16, 1982, Justice P N Bhagwati struck down IPC Section 302 as “unconstitutional and void as being violative of Articles 14 and 21”. (The 4-1 majority judgment rejected the challenge to the constitutionality of Section 302, but said death penalty must be awarded only in the “rarest of rare cases when the alternative option is unquestionably foreclosed”.) The minority view criticised the 35th Report of the Law Commission: “that the circumstance that every human being dreads death cannot lead to the inference that death penalty act as a deterrent”. The world’s “enlightened opinion”, Justice Bhagwati said, “is definitely veering round in favour of abolition of death penalty”.

In Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra (May 13, 2009), the court, while commuting a sentence, observed, “[The] right to life is the most fundamental of all rights. Consequently, a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably”.

Issues that come under the purview of Death Penalty:

The death penalty is said to breach two essential human rights:

1. Right to life
2. Right to live free from torture

Laws related to the issue of Death Penalty: (Provisions in the IPC)

The Indian Penal Code states that Capital Punishment could only be awarded in the following offences:

• Murder (s.302)
• Abetment of suicide by minor, insane person or intoxicated person (s.305)
• Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person (s.195A)
• Perjury resulting in the conviction and death of an innocent person (s.194),
• Treason, for waging war against the Government of India (s.121),
• Abetment of mutiny actually committed (s.132),
• Attempted murder by a serving life convict (s.307(2)),
• Kidnapping for ransom (s.364A),
• Dacoity [armed robbery or banditry] with murder (s.396),
• Criminal conspiracy (s. 120 B),

Further, Death Penalty can also be provided under the following special and local laws:

• Unlawful Activities Prevention Act, 1967 (as amended in 2004)
• Defence and Internal Security of India Act, 1971
• Defence of India Act, 1971
• Commission of Sati (Prevention) Act, 1987
• Narcotic Drugs and Psychotropic Substances (Prevention) Act, 1985, as amended in, 1988
• Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
• Prevention of Terrorism Act 2002, (POTA)
• Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
• Explosive Substances Act, 1908 (amended in 2001)
• Arms Act, 1959 (amended in 1988)
• Laws relating to the Armed Forces, for example the Air Force Act 1950, the Army Act 1950 and the Navy Act 1950 and the Indo-Tibetan Border Police Force Act 1992
• Various states (Andra Pradesh, Karnataka, Arunachal Pradesh and Maharashtra) have control of Organised Crime Acts which entail the death penalty.

Constitutional Provisions:

Article 72(1) of the Constitution of India states that:

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 an offence. 

1. in all cases where the punishment or sentence is by a Court Martial;
2. 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;
3. in all cases where the sentence is a sentence of death.

Popular Opinion:

Advantages of the Capital Punishment:

• Many People argue that the punishment given to a criminal must be in accordance to the gravity of the crime which he committed. If the crime if extremely inhuman or heinous, then only the Death Penalty should be given.
• The criminal who has committed such a heinous crime might re-indulge himself in the same crime or he would be capable of getting involved in some other heinous crime as well after her has been released from jail.
• Executing a criminal is far more cheap than imprisoning them.
• It is often argued that any criminal who has committed a seriously heinous crime may be a threat to other inmates in the prison who had committed a less serious crime. 

Disadvantages of the Capital Punishment:

• The practice cannot always be said to be just and fair. Those with good financial background are able to afford the best lawyers while the poor criminals have to accept the punishment without any arguments.
• Terminating the life of a criminal would never terminate the crime itself. Thus, it is often argued that if we execute a criminal then there would be no difference between us and the criminal.
• Sometimes an innocent person may be wrongly convicted of such heinous crime, when he is actually innocent.
• By executing the criminals, crime rate cannot be decreased in the society. Crimes are still found to be high in countries where death penalty is legal.
• Everyone deserves a second chance and since all crimes are related to the psychology of an individual, the punishment of death penalty might seem unfair to some.