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In the wake of recent death penalty warranted to infamous Nirbhaya convicts of Delhi 2012 Gang rape which led to the four convicts getting hanged to death in Delhi’s Tihar jail on the morning of 20th March, a big question mark on the actual efficacy of such form of punishment in India again came to the limelight. Even, the International Court of Justice condemned the execution of convicts and urged the government to abolish death penalty.
It is imperative to understand that any form of punishment prescribed by any criminal justice system should not be conducted in order to appease the populist notions of achieving a higher moral ground and populist justice but it’s efficacy as a means of deterrence in the society should also be taken into consideration. In recent years, There has been increase in granting death penalty especially for grievous sexual offences where the number of death sentences awarded for murders involving sexual offences in 2019 was at the highest in four years, according to The fourth edition of ‘The Death Penalty in India: Annual Statistics’ published by Project 39A of NLU-Delhi.
While it is tempting to debate in favour of abolishment of death penalty based on its’ irreversible and archaic nature which meddles with the order of nature, it is also notable that there is no evidence concurring to the fact that capital punishment actually deters the crime in order to make society a better place. Even, the empirical research conducted on the deterrence question strongly supports the conclusion that the death penalty does not add deterrent effects to those already achieved by long imprisonment.
LEGAL CONTEXT OF CAPITAL PUNISHMENT(INDIA)
Capital Punishment derives its’ constitutionality from Article 21 of The Constitution which along with Right to life has an exception clause as under “No person shall be deprived of his life or personal liberty except according to procedure established by law”. There has always been challenges raised to the constitutional validity of death penalty from time to time in numerous cases starting from Jagmohan Singh v. State of UP where the arguments were raised about conferring of death penalty on the discretion of courts after the amendment of CrPc 1973 to be violative of Art. 14, 19 and 21 where Supreme Court rejected the argument.In another case of Rajendra Prasad v. State of U.P., Justice Krishna Iyer has brought out the emphasis on the point that death penalty is violative of Article 14, 19 and 21, but in the landmark case of Bachan singh v. State of Punjab, by a majority of 4 to 1 (Bhagwati J. dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad. Though, to avoid the arbitrariness, the Supreme Court has limited its’ application to the ‘rarest of the rare’ and “extraordinary circumstances” to reduce the arbitrariness of the penalty. It is pertinent to mention that the Indian legal landscape has come a long way from 1980 and in light of new developments, it is time to take into account the losing relevance of such mode of punishment.
It is interesting to note that during the constituent assembly debates, the main architect of the Constitution , Dr. B.R. Ambedkar was in favour of abolishing death penalty. Shibban Lal Saxena also brought out a contention of paramount importance in favour of abolishing death penalty deriving from his experience in prison during Quit India Movement, having witnessed several of his innocent inmates being hanged leaving no scope for proving their innocence. It is still relevant in contemporary India because death penalty actually deflects attention from the problems that are ailing Indian Criminal Justice System such as poor investigation procedure, excruciating delaying of justice, corruption undermining Judiciary, ineffective prosecution and lack of resources.
In 1967, The Law Commission in its’ 35th report, had recommended retention of death penalty whereas India came a long way in justice delivery system and finally.The Law Commission of India in its’ 262nd Report, submitted in 2015 also stressed that the death penalty does not serve the goal of deterrence any more than life imprisonment. Also, by accruing significance only to the retributive aspects of law, the rehabilitative and reformative aspects of justice lose its’ meaning. The report by Law Commission itself hints towards the fact that Indian legal system is advanced and developed enough to bring such change because at the end, it is not the harshness of law but changes at institutional level is required to improve the justice delivery system.
Of late, Indian jurisprudence has incorporated and borrowed from the legal stance of the jurisdictions of other states as well which is manifested in landmark judgments such as NALSA Judgment which provided transgender community an inalienable right to self-identify their gender and can also be seen in the most recent decriminalization of homosexuality in the case of Navtej Singh Johar v. Union of India.With the growing interconnectedness of legal systems around the world, it is imperative to take into account the stance of India’s global counterparts regarding application of capital punishment.
According to statistics released by Amnesty International, at the end of 2018, 106 countries (a majority of the world’s states) had abolished the death penalty in law for all crimes, and 142 countries (more than two-thirds) had abolished the death penalty in law or practice. Most of the developed legal systems like Australia, the Scandinavian countries, Germany etc. have already banned it in law and even countries with similar judicial system like India such as UK, Sri Lanka ,Bhutan, Nepal have deterred from such punishment.It is to be noted that the countries that have banned death penalty have not been affected with any negative result due to absence of it. India is one of the 56 retentionist countries that have legalized and retained the right to execute criminals for their crimes and it is to be pointed out that many of these countries have unstable governments usurped by military coup or monarchical from of governments with opaque judicial systems. It is time that Indian legal jurisprudence takes into account all these factors in deciding the efficacy of such form of punishment.
Although there is no explicit mention of absolute abolition of capital punishment in any Treaty, Article 6 of International Covenant on Civil and Political Rights (ICCPR) which is the most important treaty provision of death penalty imposes clear restrictions on application of death penalty and limits it to the most serious crimes and can’t be imposed if; (a) fair trial has not been granted; (b) other ICCPR rights have been violated; (c)the crime was not punishable by the death penalty at the time it was committed; (d) the offender is not entitled to seek pardon or a lesser sentence; (e) the offender is under the age of 18; and lastly (f) the offender is pregnant. However, Article 6 also does not interfere in the abolition of capital punishment in any state.
India has always maintained its’ official stance as against abolition of death but as a global flag bearer of human rights, India should take into consideration the fact that Death Penalty goes against the fundamental principles of Human Rights such as in particular the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment which undermines the dignity of an individual as enshrined in Article 3 and Article 5 of Universal Declaration of Human Rights , 1948.
Taking its cue from national and international developments, it is high time that Indian judiciary at least reviews the matter carefully to come to a conclusion. When none of the two theories of punishment, i.e. preventive theory and reformative theory is achieved through a mode of punishment or which is replaceable by other forms of punishment, the irrelevance of it becomes palpable. The Indian government should try to start more focused work on bringing changes at an institutional level in order to bring systemic changes and not just serve a populist notion concept of what justice is or should be.
ABOUT THE AUTHOR
Urvi Bhardwaj is an undergraduate student in first year at Hidayatullah National Law University, Raipur.
In content picture credits: change.org