Death Penalty: Need For Abolishment

9th September, 2024 - 10:37 am Categories: News & Updates 0 Comments

Introduction

Human beings for ages have been developing methods to curb and control deviance and set up a framework that promotes adherence to normative behaviour. To achieve this, several means have been adopted and the death penalty is one of them. One of the most controversial and interesting questions that have grappled today!s criminal law justice system is regarding the legality of the Death Penalty. As across the globe, nations are understanding the importance of human rights, there has been a decline in the favour of capital sentencing. Although death penalty as a form of deterrence has been forbidden or abolished in numerous countries, to this date, there has been no international consensus regarding its legality. To talk about India!s position when it comes to death penalty, in the international arena, it has consistently held its position in opposition to the abolition of the death penalty.

This paper deals with the troublesome relations between the criminal justice system of India and the administration of the death penalty. The question that has been addressed is why there is a need to abolish capital punishment and various reasons to support the same have been discussed.

Position of Death Penalty in India

The practice of sentencing individuals to death as a form of punishment was introduced in India by the British. They have done away with this practice long back but India has still failed to do so. On several occasions, debates have taken place as to whether the death penalty should be abolished or whether it should be made a punishment for more and more crimes. However, the Indian legal system is still struggling with the constitutionality of capital punishment and in determining at what instances should it be granted.

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In the landmark judgement of Mithu v. State of Punjab, the Supreme Court of India held that Section 303 of the Indian Penal Code which prescribed mandatory death penalty was unconstitutional and consequently, it was struck down. However, a mandatory death sentence is still part of the Indian laws provided under specific legislation.

In Shankar Kisanrao Khade v. State of Maharashtra, the Supreme Court had noted that there is a need for the courts to lay down a framework to determine when and under what circumstances should death penalty be awarded. This was to make sure that no uncertainty prevails regarding matters related to the death penalty.

The Bachan Singh Framework

As per the prevalent practice in India, death sentence is not a rule but an exception i.e. it is awarded in ‘rarest of rarest cases ’when all the other alternatives are unquestionably foreclosed. In the landmark judgement of Bachan Singh v. State of Punjab (hereinafter “Bachan Singh”), the Supreme Court of India while upholding the legality of death penalty, gave the test of ‘rarest of rarest cases ’ in order to limit its scope substantially. The court further emphasised the need for individualised sentencing i.e. the circumstances of the crime and the criminal need to be given weightage while giving such a sentence. However, the guidelines laid down in Bachan Singh were not taken into consideration by the courts in multiple cases. One such case is Ravji v. State of Rajasthan (hereinafter “Ravji”) where the Supreme Court held that

“It is the nature and gravity of the crime but not the criminal, which are germane for

consideration of appropriate punishment in a criminal trial.”Ravji’s sentence was not commuted to imprisonment for life and was executed in 1996. In Santosh Bariyar v State of Maharashtra, (hereinafter “Bariyar”), the Supreme Court admitted its error and held Ravji to be per incuriam. Despite the admission of the mistake, the precedent of the Ravji case had already been followed in multiple cases due to which at least 2 prisoners were sentenced to death and others continued to suffer on death row.

As per Section 354 (3) of the Code of Criminal Procedure, 1973 (hereinafter “CrPC”), a court awarding a death sentence has to provide a “special reason’ for giving such a judgement. The purpose of this section is to ensure that judges do not have arbitrary powers and are mandated to follow the established guidelines. However, in Ravji and the subsequent cases which relied on Ravji instead of Bachan case, did exactly that. Such erroneous actions on part of the judges cost individuals their lives.

Constitutionality of Death Penalty

Due to different interpretations given by the courts to the guidelines laid down in the Bachan Singh case, death penalty has become something that is open to arbitrary and whimsical interpretation of the judges. The powers vested in the hands of the judges to differentially treat similar convicts as noted in the Swamy Shraddananda case goes against Article 14 of the Constitution and the right of life granted in the constitution of India under Article 21. That is, if a case where an individual has been awarded a death sentence cannot be distinguished from cases where the accused were sentenced with life imprisonment, then it shows that our sentencing system is unconstitutional and arbitrary. Therefore, there is a need to ensure that the death penalty is awarded only in extraordinary and exceptional cases.

Errors of Judgement

It is often argued that judges have the sentencing discretionary power in order to take peculiarities of a case into consideration and the same goes for capital punishment. However, the fact that capital punishment imposes irreversible penalties like death, which could take away the life of an innocent cannot be ignored. There have been several instances around the globe where it was found that an innocent was wrongfully executed. For instance, a study conducted by Colombia University Law School found that Carlos DeLuna who was executed in 1989 by the State of Texas was wrongfully executed.

No Penological Justification

Further, the purpose of punishment in the criminal justice system is to provide retributive justice or to deter others from committing the same crime. Therefore, individuals who advocate for death penalty need to show how the benefits offered by the death penalty are much more than benefits offered by life imprisonment that it justifies taking the life of a person.

In Bariyar, Supreme Court held that the special reason talked about in Section 354(3) of CrPC needs to satisfy the comparative utility which death penalty has over imprisonment for life.

Suggestions

1. The Supreme Court in order to address the problem of inconsistencies in judgements could set up a special bench that would hear cases related to death penalties awarded by the High courts.
2. Or every High Court of India and Supreme Court could set up a bench that would be responsible for reviewing all the cases of death penalties, confirmed by the courts. If a single bench reviews all the judgements, it would lessen the scope of different interpretations.

Conclusion

As dialogues are taking place in the international and public forum relating to the administration of capital punishment, more and more developments are taking place in favour of the convicts in order to safeguard their rights. For instance, in Swami Shraddananda, the court by bringing forth “the vast hiatus between 14 years’ imprisonment and death” has provided the court with the availability of alternative options other than life imprisonment i.e. 14 years and death penalty. This action of the Supreme Court has upheld the guidelines laid down in Bachan Singh as rather than opting for capital punishment or an unsatisfactory term of 14 years, courts have other options to exhaust.

After the Swami Shraddananda judgement, there have been several cases where normally the court would have awarded death sentence, but the prisoners got the benefit of alternate options between a term of fourteen years to a full life sentence.

It can be concluded that even if death penalty still remains as prescribed punishment in India’s legislation, it is still moving away from discriminatory and arbitrary awarding of capital punishment. We have a long way to go to do away with this practice but it is a step towards the change.

Author:  Ananya Agrawal, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.