Death Penalty: Is It Deterrent Enough?
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This Blog is written by Vidur Thanawala from Bennett University, Greater Noida. Edited by Anshika Porwal.
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ABSTRACT
Capital Punishment or commonly referred to as Death Penalty is a form of punishment awarded by the Court in cases of heinous crimes that are committed. Crimes that shake the consciousness of society. One such crime that was committed was the Delhi Gang Rape Case, or commonly referred to as the Nirbhaya Rape Case, after this case, a committee headed by Justice Verma recommended certain amendments to the provisions that govern the offence of rape under the Indian Penal Code. Thus, the IPC was amended making the punishment for rape laws more stringent.
Since India become a Democratic country in the year 1947, there has always been a debate whether the courts are fair while awarding the death penalty, whether the punishment of death penalty is violative of the fundamental rights enshrined under the Constitution of India, is it deterrent enough to stop the criminals from committing such heinous crimes.
The Apex Court through many of its judgement has laid down that the punishment of the death penalty or capital punishment can only be awarded in the ‘rarest of the rare case’. This theory of the court has received a lot of criticism from the International Human Rights group and many Human Rights Activist. They have together requested the Supreme Court of India to consider abolishing the punishment of Death Penalty.
This article will in detail analyse the position of the death penalty in India and other nations and whether the idea of the death penalty as a form of punishment is deterrent enough for the criminals to not a commit Heinous crimes any more.
Keywords: Capital Punishment, life imprisonment, deterrence.
INTRODUCTION
Death Penalty or capital punishment as referred in many countries is a type of punishment awarded to an offender for committing the most heinous crimes that a human can commit, under this type of punishment the judiciary orders for the offender to be executed once he is sentenced to death. This execution might be held publicly or could take place within the premise of the jail. The concept of Death Penalty or Capital Punishment existed since the medieval and ancient times, were in countless people were executed for the crimes heinous crimes like rape, murder, kidnaping.
The Concept of Death Penalty has always been a subject for debate in India, as India is a democratic country that guarantees some basic human rights to all its citizens through the Constitutions. The Judiciary time and again have reiterated the fact death penalty should be awarded as punishment to the offender who has committed a very grievous crime, a crime that goes against humanity. This theory or doctrine of the court is known as the ‘rarest of the rare case’.
The first case of death penalty in democratic India goes back to the hanging of Nathuram Godse and Narayan Apte, who were convicted for the assassination of Mahatma Gandhi, which for the first time gave rise to the debate revolving the concept of death penalty in India.
India as a country has always been in favour of death penalty and against abolishing it, this could be inferred from the fact that India had opposed a UN resolution on death penalty, while doing so India was of the opinion that such a UN resolution was against the Indian Legislature and also was violative of its sovereignty to create its Own laws.
“As of 2012, there are 97 abolitionist states, as per reports by Amnesty international, the most noticeably awful guilty parties back in 2012 were china with over a 1000 execution, Iran with more than 314 execution and Iran with more than 129 execution. As per the same reports it is started that more than 68% of the nations throughout the world have either abolished capital punishment or have really not awarded this form of punishment to any offender for over a decade”.[1]
POSITION OF DEATH PENALTY IN UNITED STATES
The United States has had a system of justice that has evolved when it comes to awarding capital punishment to any offender, the United States observed a period of 26 long years from 1963 to 1988, during this period it did not pronounce any death execution.
In the case of “Furman v. Georgia” [2], the Supreme Court of United Nations observed that the death penalty awarded in the case was in an unconstitutional manner, and found that awarding capital punishment would be arbitrary to the eight amendment of the United States Constitution. The Supreme Court of United States even though as never per se held capital punishment as unconstitutional, it has also never been in favour of awarding it.
Justice Stewart while delivering the dissenting opinion in the case was of the view that capital punishment is not unconstitutional and in fact it acts as a process of deterrence.
POSITION OF DEATH PENALTY IN THE UNITED KINGDOM
The nineteenth century was an imprint for impressive changes throughout the entire existence of death penalty in England. There were astounding names, who among the last category of criminals who were awarded death penalty for the crimes that were committed by them. The government by 1861 had reduced the number of crimes to 4 from previous 16 that could now be awarded death penalty.
Violet Van De Eist, started a full fledge resistance in England in the year 1930, she through her book “On the Gallows” wanted the general public of England realise the capital punishment as a form of punishment was used to hang many innocent people. For example Timothy Evans who was found guilty for the murder of his wife and daughter and was executed in the 1950, but to everyone to surprise the court 16 years later in the year 1966 found that he was actually innocent and as a result the court had to clear him of all the charges. He is one among many people who met with similar fate.
The United Kingdom through the Murder (Abolition of Death Penalty) Act 1956, abolished the death penalty to a certain extend in England, Wales and Scotland. Through the Act, death penalty was suspended for a period of 5 years and was replaced rigorous life imprisonment, this act per se did not abolish death penalty but laid down guidelines and categorised the criminal offences for which death penalty could be awarded.
The house of commons ratified the 6th protocol of the European Conventions on Human Rights which restricts any nations for awarding capital punishment as a form of punishment, the convention laid certain cases were a state could award death penalty to an offender, if the offender is found guilty of crimes against the states or crimes committed during war time.
The United Kingdom in 2003 abolished capital punishment in all the cases. Allen and Evans were the last people to be executed in England in the year 1964, the main issue before the court in this case was to adjudicate whether Allen and Evans are guilty of the offence of murder. [4]
The jury in this case found both the men guilty of the offence and they both were awarded execution by death penalty. After this case the country has not witnessed any execution, even though the courts have awarded this form of punishment they have overruled the same during the later stage of the proceeding. [5]
Thus, we can trace the existence of death penalty in a common law country, a punishment that was once used for punishing offender for committing heinous crimes, to completely abolishing this particular form of punishment.
POSITION OF DEATH PENALTY IN INDIA
The debate surrounding the topic as to whether Death Penalty as a form of punishment should be abolished has been going on for quite some time now, but what the debate lacks is correct statistics and figures. Over the years the government along with the legislature has failed to sensitizes people about the fact that death penalty as a form of punishment is inhuman and brutal in nature. The Indian government over the years have not provided the general public with the exact figures regarding the number of offenders who were executed or even awarded with the death sentence.
“According to the official figures about 720 people were executed in India since its independence in the year 19”, [6] while India did not see any execution been held in the year 2018, according to a research conducted by “project 39A at National Law University, Delhi shows that the judiciary has awarded the punishment of death penalty in 162 cases. These were awarded for various crimes committed for example out of these 162 cases in which the death sentence was imposed 45 cases were related to murder, 58 cases were related to cases which were primarily of sexual offences but also involved murder.
It could be seen that India has seen an increase in 50% increase in the imposition of Death penalty as of the previous statistics of 2017”. [7]
In 2018 with the assent of the President of India on 11 of August the Criminal Law Amendment Act was incorporated which gives a discretionary power to the courts to impose death penalty in case were a girl younger than 12 years has been raped.
No decision on important matters pertaining to law and order can be taken without consulting the Law Commission of India, but when it comes to the topic of death penalty even the Law Commission of India has failed. In the year 1967 the law commission of India in its 36th report analysed the situation of Death penalty in India and the cases in which it was imposed, at length. The commission was of the opinion that a sensitive topic like death penalty and whether should it be abolished could only be decided after collectively weighing the arguments of people who are in favour of abolishing it against the arguments of people who are against it.
The commission while concluding the report was of the opinion that India being a diversified country with such a large population is a matter of concern and with the rates of crime increasing over the years it would not be a good idea to abolish the death penalty as could act as a deterrence to other criminals who would think twice before committing crimes of a certain level.
When it comes to the relevant law and procedure that governs death penalty in India, it could be classified into two relevant categories: The Indian Penal Code, 1860 and special legislations enacted by the government. It is important to note that death penalty per se is not defined in the IPC, but the courts derive their power to impose death penalty from section 53 of the IPC.
Following are the crimes for which the Indian Penal Code provides capital punishment or death penalty as a form of punishment.
• Section 120-B, provides for punishment in case criminal conspiracy
• Section 121 provides for punishment in case of treason or waging war against the Government of India.
• Section 132 provides for punishment in cases mutiny which is committed.
• Section 194 provides for punishment in case of perjury which results in the conviction and death of an innocent.
• Section 302 provides for punishment in case of murder committed by a life convict.
• Section 305 provides for punishment in case abatement of suicide by a minor, a lunatic or an intoxicated person.
• Apart from these the other provision that offer death penalty as a form of punishment is
Above are the provision that govern Death Penalty under the IPC, apart from the IPC there are certain special legislation that govern death penalty as a form of punishment.
• Indo Taliban Border Police Force, Act 1992.
• The Schedule Caste and the Schedule Tribe (Prevention of Atrocities) Act 1989.
• Prevention of Terrorism Act, 1987.
• Explosive Substance Act, 1908.
• Unlawful Prevention Act, 1967, which was amended in the year 2004.
The Indian Penal Code, 1860 lays down definition of crimes and what punishment should be imposed on the offender for committing a certain crime, which is why we refer to the IPC as a substantive law and the code of criminal procedure 1973, lays that the procedure in which the judiciary can impose the punishment mentioned in IPC or any other legislature.
Section 366 of the Code of Criminal Procedure 1973 stated any court of session awarding the punishment of death penalty has to submit it for confirmation to the high court or the apex court.
Apart from this the convict who was been awarded the death sentence can appeal to the President and the Governor for a pardon by filing a ‘mercy petition’. The president of India and the governor have the power to suspend or remit or pardon a convict serving death penalty by exercising their power under article 72 and article 161 of the Indian Constitution.
THE DOCTRINE OF THE RARE VIZ-A-VIZ THE CONSTITUTION OF INDIA.
The judiciary in India, through its judicial pronouncements and precedents has held that the punishment of death penalty should be imposed only in the cases of “rarest of the rare case”. There have been many cases where the constitutionality of death penalty as a form of punishment was challenged, it was challenged on the grounds that the form of punishment is violative of Article 14 and Article 21 of the Indian Constitution.
The main contention before the courts in the cases of death penalty was that the uncontrolled and unguided discretion of power given to judiciary to impose death penalty was violative of Article 14. For example, the courts decided on two cases of similar facts, wherein it convicted on accused to life imprisonment and in the other case it convicted the accused to death penalty.
When it comes to article 21 the contentions that were put forward before the courts were that after “Maneka Gandhi v. Union of India”[8] it was established that every procedure established by law should be “fair, just and reasonable”. The fact that the criminal procedure code, 1973 is silent on the punishment part and is limited to the question of guilt. Thus, there is an absence of procedure regarding death penalty and thus is violative of Article 21.
The very first case that challenged the constitutional validity of death penalty was the case of “Jagmohan Singh v. State of U. P” [9], the counsel representing the petitioner contended before the apex court that imposing death penalty as a form of punishment is violative of Article 14. and Article 21 of the Indian Constitution and thus invalidates section 302 of the IPC.
The contention as to why is it violative is discussed above, in respect of Article 19 it was contended that pronouncing the punishment of death penalty, takes away all the rights enshrined Article 19 of the constitution, and thus the punishment goes against all society in general and thus can’t be termed as an “reasonable classification” under Article 19(2). In this case the apex court of India upheld the constitutional validity of capital punishment, while stating that the punishment of death penalty is a form of deterrence and in cases where the offender has committed a crime that is heinous in nature the state has the power to deprive the citizens of their fundamental rights.
The next case that discussed the issue of constitutionality of death penalty was the case of “BachanSingh v State of Punjab [10] ”, this case is also responsible for introducing “the doctrine of rarest of the rare”. The 5 benches in the case held:“A real and abiding concern for the dignity of human postulates resistances to taking a life through law instrumentality, that ought not to be done expect in the rarest of the rare cases where there is alternative opinion is unquestionably foreclosed[1]”. [11]
The issues that were framed before the court were the constitutional validity of section 302 of the IPC that provided for death penalty as a punishment and the second issue was whether the sentencing procedure as provided by section 354(3) of the CrPC, gave arbitrary discretion the judiciary to impose death penalty.
While the majority judgement upheld the constitutionality of Section 302 of the IPC and section 354(3) of the CrPC, Justice Bhagwati was the only judge who dissented. While delivering his dissenting judgement he quoted Arthur Koestler’s authoritative treatise on the death penalty- “Reflection on hanging”, he while quoting this drew an analogy with the philosophy of Mahatma Gandhi that “An eye for an eye, makes the world blind.” Further Justice Bhagwati was of the opinion that due to media attention pressure from the society some of the judgements passed during the time of Bachan Singh were done a motive of revenge.
“On the matter of whether death penalty is deterrent enough, he referred to a statement issued by an eminent US criminologist Professor Thorsten Sellin which was also cited by the Royal Commission on Capital Punishment that whether the death penalty is used or not and whether executions are frequent or not, and they were of conclusion that there is no conclusive evidence as to whether capital form of punishment as led to an decrease in the rate of homicide or whether reintroducing the death sentence would lead to a fall[12]”.
Justice Bhagwati through his dissenting Judgement, brought some other issues to light which were that the theory of deterrence would only work on people who are alive and it would be impossible of death people to go through the path of reform.
According to him many eminent jurists and scholars were of the opinion that death sentence prescribed by law would create a sense of fear in the mind of other criminals, but according to him death penalty was a ground of punishment that was backed by emotions and a motive to seek revenge and thus this form of punishment should be curtailed from the society.
Yet in another case wherein the constitutionality of death penalty was questioned was the case of “Mithu v. State of Punjab”, [13] in this case issue raised before the apex court of India was whether the mandatory death penalty as a form of punishment. The court in this case held that Section 303 of the IPC was in fact violative of Article 14 and Article 21 as the rationale behind the section was that a offender convicted for life, commits the crime of murder even after that, is a cold blooded murderer, and is far from being reformed, thus such a person should not be allowed to live.
In the case of “Machi Singh v. State of Punjab,[14] while further explaining the “doctrine of rarest of the rare”, Justice M.P Thakkar laid down certain situations wherein the court could impose death penalty, some of those situations were.
• Way the murder was committed.
• The motive behind committing murder
• Whether the murder committed was anti-social or was socially abhorrent in its nature
• The magnitude behind the crime
• The personality of the victim of the crime
INDIA VIOLATIVE OF ARTICLE-6 OF ICCPR.
Article 6 of the ICCPR states: “In Nations which have not abrogated capital punishment, sentence to death might be forced distinctly for the most genuine crime”, In its general Remark Article 6, the UN has explained: “The committee is of the feeling that the articulation ‘most genuine crime’ must be pursued prohibitively to mean that capital punishment ought to be very excellent measure”. There is a similar acknowledgement given under safeguard 1 of the safeguards Guaranteeing Protecting of Rights of those facing the death penalty, received by the UN Economic and Social Council in 1984,which necessitates that death ought to be implicated for the most genuine crimes committed. It is comprehended that ambit of such crimes should not go beyond the facts that were they committed intentionally and how grave are the consequences.
In respect to the international convection, the development of death penalty in India is in particular violative of Article 6(2) of the ICCPR. 1984 was the year when for the first time the concept of Death Penalty was introduced in India for the offence of kidnapping and ransom, which is a crime under Section 354-A of the IPC. This was violative as the UN Committee had explicitly mentioned that kidnapping that does not lead to murder cannot be categorized under crimes for which death penalty can be imposed.
Similar was the opinion of Justice Krishna Iyer in the case of “Rajendra Prasad v. State of UP [15] ”.In this case the apex court for the first time laid down certain guidelines in respect to mentioning of the “extraordinary reasons”, for imposing death penalty in cases where an alternative form of punishment is that of life imprisonment under Section 364 (3) of the CrPC, 1973.
While laying down emphasis on how important this case is its also important to mention the case of “Ediga Anamma v. State of Andhra Pradesh [16]”, wherein Justice Iyer observed that the judges of the court along with examining the magnitude of the crime should also examine other factors like age, gender, socio-economic background before imposing the punishment of death penalty.
CONCLUSION
After analysing the situation of death penalty in India in great detail one can confidently come to a conclusion that the position of death penalty has received mix reaction and it is still evolving. When it comes to the question as to whether the imposition of death penalty as a form of punishment is deterrent enough, to my understanding it is not enough.
In reference to the cases relating to sexual offences against women, the number of cases of rape have only increased after the Nirbhaya case, even though the laws relating to rape were made stricter but that didn’t go well. After Nirbhaya some cases of rape that were brutality committed against woman were the cases of Kathua, Unnao and the rape of Dr. Priyanka Reddy. This brings us to a question that if death penalty is not deterrent enough then what form of punishment would be deterrent enough. In my understanding rather than imposing the death penalty on such criminals, the judiciary should sentence them to life imprisonment with the motive that the convict is sensitised about the nature of the crime committed, and as a part of his imprisonment, the convict should also be a part of a social service so that he has a chance to reform himself.
If an alternative solution is not explored then in simple words the punishment of death penalty imposed would look like revenge, a decision of the court taken in a haste manner out of vengeance.The debate as to whether should India abolish the death penalty or should it continue with it would only end after the Indian government takes conscious steps to bring out the actual figures pertaining to cases where the death penalty is been imposed, once this is done, one could have a clear picture as to what can be done.
REFERENCES
[1] India Gang Rape Sentencing: The Death Penalty explained available at http:/www.Telegraph.co.uk.in/new/worldnews/asia/India/1030571/India-gang-rape-sentencing the death penalty-explained.html (last visited on June 24th, 2020.)
[2] Furman v. Georgia, 408 U.S. 238 (1972).
[3] History of Capital Punishment- http://www.stephen-stratford.co.uk/capital_hist.htm (last visited on 24th June 2020.)
[4] Last Executions in the UK- available at http://www.stephen-stratford.co.uk/last_ones.htm(last visited on 24th June 2020)
[5]]https://economictimes.indiatimes.com/news/politics-and-nation/death-penalties-in-india-convictions-and-acquittals/about-720-executed-since-1947/slideshow/72834576.cms, (last visited on 24thJune 2020.)
[6] https://amnesty.org.in/news-update/death-penalty-2018-dramatic-fall-in-global-executions/, (last visited on 24th June 2020.)
[7] Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621
[8] Jagmohan Singh v. State of U. P, (1973 1 SCC 20)
[9]Bachan Singh v State of Punjab, AIR 1980 SC 898.
[10] Ibid at 10.
[11] Para 47, pg. 1362, Bachan Singh v State of Punjab (Minority Judgement) (AIR 1982 SC 1325); paras 64-65, Royal [12]Commission on capital punishment 1949-1953; report, London Her Majesty’s Stationery office, 1953.
[13]Mithu v. State of Punjab, (1980) 2 SCC 684.