Should Capital Punishment be Abolished: Judicial Analysis
This Blog is written by Nayantara Rao from Amity University, Mumbai. Edited by Karan Dutt.
Capital punishment or what is known as capital punishment will be imposed by any state as a punishment to the criminals for any serious offences committed by them. Capital crimes, capital offences or capital felonies, and a few others are the names given to the crimes that are punishable by death depending on the jurisdiction, but usually include heinous crimes against any person like murder and mass murder, , child rape, child sexual abuse, aggravated cases of rape, terrorism, crimes against humanity, war crimes, and genocide, and with serious crimes against the state like attempting to overthrow government, espionage, sedition, piracy, aircraft hijacking and treason.
In more than a hundred countries, the use of capital punishment was dropped gradually through the years. 7 countries such as Brazil, Peru, Chile have retained capital punishment for the crimes committed in exceptional circumstances like war crimes and abolished it for ordinary crimes. Certain countries which include India, still use capital punishment as a punishment.
A resolution – ‘UN moratorium on the capital punishment’ was adopted by the United Nations General Assembly in 2007 where India voted against it.
INDIAN JUDICIARY ON CAPITAL PUNISHMENT
The highest Judicial Tribunal of the country which is the Supreme Court of India on various points of law has given its authoritative decisions from time to time. In last 50-60 years the apex court has examined various issues such as the constitutional validity and procedure which are related to capital punishment and on numerous occasions delivered its valuable verdict. Before the Supreme Court for several times the constitutionality of capital punishment has been questioned on the ground that it contravenes provisions incorporated in Indian Constitution. The Court, however has made it quite clear frequently that the imposition of capital punishment is not opposed to the supreme law of the land. Some people have the opinion that Sec. 302 of the I.P.C. in so for as it provides an alternative to life sentence to be the imposition of capital punishment is ultra vires and void as being violative of Article 14 and 21 of the constitution as it does not provide any legislative guidelines as to when life should be permitted to be extinguished by imposition of death sentence. By virtue of section 354(3) of Criminal Procedure Code it can be said that death sentence be inflicted in special cases only which answers the question of when the courts can inflict death sentence to the person who is accused.
Whenever a capital punishment is given as a punishment for any of the offences, it may be noted that it is the extreme penalty, not the only punishment. In the Constitution articles 72 and 161 confers power on governors of states and the President to entertain any mercy petition of death convicts and grant pardon to them. The Supreme Court through its pronouncements has set aside all the various possibilities of its arbitrary use and defined the scope of such executive clemency. It also affirms the fact that the pardoning power which is granted to the President and the governors are subject to judicial review which cannot be exercised on the basis of political reasons or caste.
LANDMARK CASES ON CONSTITUTIONALITY OF THE CAPITAL PUNISHMENT
The courts were obliged to provide ‘special reasons’ for not imposing the death sentence ever since the Code of Criminal Procedure in 1898 imposed the death sentence. Only after the introduction of Code of Criminal Procedure re-enacted in 1973 there was a true departure of the norm of death sentence. Section 354(3) which was introduced in the CrPC 1973, had mandated that the presiding judge must provide ‘special reasons’ while imposing or inflicting a capital punishment. The CrPC 1973 also introduced the Section 235(2), which mainly allowed the post-conviction hearing on sentencing which then drastically changed the jurisprudence allowing a analysis of circumstances revolving around the jurisprudence of death sentence and its careful evaluation.
Rajendra Prasad v. State of Uttar Pradesh (February 1979)
After the re-enactment of CrPC 1973, an ambiguity was present in the jurisprudential understanding of ‘special reasons’ for imposing and inflicting this punishment. In Rajendra Prasad v. State of Uttar Pradesh, the supreme court dealt with the legal policy on sentencing discretion and it had also extensively discussed the meaning and scope of ‘special reasons’ for imposing death sentence only on exceptional grounds. The Court emphasized on the deterrence and reformative theory and departed from retributive theory as the social goals. The Court, furthermore held that the ‘special reasons’ required to inflict the capital punishment which must not relate to the nature of the crime, but it must also focus on the criminal.
Bachan Singh v. State of Punjab (May 1980)
In May 1980, in the Bachan Singh v. State of Punjab the constitutional validity of capital punishment was again challenged and it was based on multiple new developments.
• The capital punishment was made as an exception by the re-enactment of CrPC 1973 with regards to the rule of imposing life imprisonment for offences consist of choice between death sentence and life imprisonment.
• In the previously mentioned case, it had interpreted the parameter on which ‘death sentence’ must be related to not to the crime itself but circumstance of the criminal.
• In the light of Maneka Gandhi v. Union of India (January 1978) it reviewed capital punishment since each and every punitive action must satisfy the test of reasonableness after satisfying Articles 14, 19 and 21 of the Indian Constitution which is known as the golden triangle test.
In Bachan Singh v. State of Punjab the basic and primary challenges to the capital punishment was that the death punishment is cruel, degrading treatment, inhumane and unnecessary and the capital punishment does not serve the purpose of deterrence. Furthermore, on the ground that the imposition of capital punishment is whimsical and arbitrary, the constitutional validity of Section 366(2) of CrPC and Section 302 of IPC was challenged in this case. The Supreme Court did not accept this contention as a majority of 4:1 was observed and affirmed the constitutional validity of death sentence but propounded ‘rarest of rare’ doctrine as that the death sentence can only imposed only when the alternative option is unquestionably ruled out.
The Supreme Court, moreover had ascertained that in the context of inflicting death sentence the “special reasons” must pay due regard to both the criminal and crime and the relative weight has to be given both mitigating and aggravating circumstance which is prior to the stating of special reasons for inflicting the capital punishment. The mitigating factors includes the age and the mental condition of the accused, the reforming possibility or if the person committed the crime under any superior orders are recognised by the Supreme Court. It even emphasized on and recognized the individual yet principled sentencing of the death sentence, the court provided discretion to the judges to apply the principled reasoning of inflicting death sentence in every individual case on the basis of mitigating and aggravating circumstances instead of creating categories.
In August 1982 the contradicting opinion written by Justice Bhagawati , he held the capital punishment to be unconstitutional two years after the majority’s decision. He held the opinion that the capital sentencing system that requires ‘special reasons’ without any guidance on its meaning, left decision-making essentially to the subjective assessment of individual judges, which makes it arbitrary.
Mithu v. State of Punjab (April 1983)
The court in this case had discussed Section 303 of the IPC which provides for a mandatory death sentence for offenders who are serving a life sentence. The logic that any criminal who has been convicted for life can still kill someone will be beyond any reformation and thus, the only suitable and fit punishment for the criminal left would be death was the base to this section.The original idea behind this section being drafted was discussed to be to discourage assaults by life convicts on the prison staff, but the language chosen by the legislature had widely exceeded its original intention and could be applied in much wider scope. Section 303 was held to be violating the right to life and personal liberty and right to equality as conferred under Articles 21 and 14 of the Constitution.
Channulal Verma v. State of Chhattisgarh (November 2018)
In this case, the Supreme Court, one of the judges in the 3-judge bench noted that appropriate time to review the constitutionality of the capital punishment and take into consideration reformative aspects of this punishment. While disagreeing on the question of propriety of the capital punishment, the remaining two judges on the bench highlighted on the duty of courts to be constitutionally correct, even if its views are against the majority. The majority of the public opinion is formed generally by emotionally charged narratives which are not necessarily legally correct or be properly informed. The values of rule of law and constitutionalism which the courts are bound by may be opposed by these narratives. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra case, this view was reiterated by the court that while awarding capital punishment, public opinion is neither an objective circumstance relating to criminal nor to the crime. In this case, the death sentence was reduced to life imprisonment after taking into consideration the possibility of rehabilitation and reform of the appellant which was evidenced by his good conduct in prison.
According to me, the points in favour of Capital punishment are: –
• For criminals, capital punishment can act as a deterrent.
• If the criminals who perform such heinous acts are allowed in the society again, the security of citizens and the country will be at stake.
• By imposing maximum punishment for the offenders, the values and morals of the state are protected.
• Most people hold the view that if the criminals are incapable of being reformed, they don’t deserve to live.
• The fear of capital punishment might reduce the crime rate as it did in Saudi Arabia which has very low rate of crimes as it imposes capital punishment and severe punishments.
Points Against Capital punishment: –
• The four basic purposes of punishment are –Revenge, Reformation, Protection, Deterrence.
- Revenge: – Other alternatives of punishment other than capital punishment can serve the purpose of revenge. Capital Punishment in fact might not let the criminal know the pain and suffering which was caused. A life imprisonment might easily fulfil this purpose.
- Reformation: – The chance for someone to reform is taken away if one is sentenced with death.
- Protection: – For the purpose of the society to be protected from criminals, a life imprisonment can suffice this purpose, it is not necessary to impose capital punishment.
- Deterrence: – Capital punishment cannot decrease the number of crimes is revealed by statistics.
• Society can be interpreted as violent cultured, blood thirsty and revengeful by the use of capital punishment.
• Capital punishment does not help to achieve justice. It can be achieved instead by reforming the criminal and giving sufficient punishment.
• This mode of punishment is irreversible. If the accused is proved as innocent after the capital punishment is imposed, nothing can be done which has happened in a significant number of cases. Than taking the life of an innocent person, it is better to spare the guilty.
• For a punishment to be a deterrent, immediate action on the criminals must be taken and imposing severe punishments can help, but not capital punishment.
• The Government expenditure on the criminals who are given capital punishment is more than the criminals who are serving life imprisonment.
• People might be demanding for capital punishment for the criminals as many people are not aware that life imprisonment sentence is not just for 14 years but for the lifetime.
• There is an ambiguity relating to many of the criminals awarded with capital punishment regarding to whether they actually committed crime or if they were trapped in it because of the loopholes in the judiciary and the poverty.
• When a person is on a death row, many appeals and petitions need to be appealed which require a lot of money in Indian judicial system. Thus, the criminals who can’t afford it will face the capital punishment which brings in inequality and discrimination.
• As the Indian Judiciary is not free from political power, corruption, money and muscle power, without eliminating these elements or at least without reducing their impact, capital punishment for the individual crimes is not an appropriate punishment.
Capital punishment is usually awarded when a crime is committed in an extremely brutal, revolting, grotesque, diabolical or dastardly manner which gives rise to intense and extreme indignation of the society. There are a lot of ethical dilemmas involved in capital punishment and in most of the cases, capital punishment can be avoided. Life imprisonment is a well enough alternative for capital punishment. The criminal can be reformed by imposing life imprisonment. Even if there is no chance for reformation, life imprisonment can act as a severe punishment which also serves as a deterrent. However, when certain heinous crimes are committed and no scope of redemption is possible in the eyes of the society, there is no alternative other than imposing capital punishment.
(1) The Code Of Criminal Procedure, 1973(https://legislative.gov.in/sites/default/files/A1974-02.pdf)
(8) The Indian Penal Code(https://legislative.gov.in/sites/default/files/A1860-45.pdf)
(9) The Constitution Of India(https://legislative.gov.in/sites/default/files/COI-updated.pdf)