Capital punishment (death penalty)

From CSE Wiki

Capital punishment or death penalty is a severe punishment whereby a (convicted) person is put to death by the state for a crime after due process of law. It is legitimate a legitimate form of taking away life of a person. Executions by state that do not follow due process of law are not legitimate and are termed as extra judicial executions. Crimes that are punishable by death are known as capital crimes, capital offences or capital felonies.

Arguments in favour of capital punishment

  • Deterrence: Capital punishment has a uniquely potent deterrent effect. (However, not supported by evidence)
  • Retribution: It provides emotional satisfaction to victim and their kins. (Retributive theory of justice)
  • Symbolism:
    • It gives a message to the society that certain crimes are completely unacceptable.
    • It sybmolises the codemnation of the immoral ideas that the convict holds. (Immoral ideas - hatred against a section of society, terrorism etc.)
  • Utilitarian: It is required in “rarest of the rare” crimes as otherwise they would be treated at par with other crimes. A person who kills hundreds of people with a bomb cannot be treated at par with a murder convict. (Utilitarian because 1000 lives > 1 life)

Arguments against capital punishment

  • Moral:
    • Legitimizing the very behaviour that the law seeks to repress - killing - capital punishment is counterproductive in the moral message it conveys.
    • Capital punishment violates the condemned person’s right to life and is fundamentally inhuman and degrading.
  • Utilitarian:
    • Research has demonstrated that the death penalty is not a more effective deterrent than the alternative such as life imprisonment. (Deterrence theory of justice is failed) (However, such researches have not been conducted in India.)
    • It serves no better than imprisonment for protecting society. (Preventive theory of justice is failed)
    • It provides no avenue for reformation of convicts. (Reformation theory of justice is failed)
  • Practical: It is not practically possible to determine which crime should be given capital punishment. This categorisation will inevitably be arbitrary and discriminatory.

Capital punishment in India

  • Capital punishment is allowed in India by law, however it is given only in “rarest of the rare” cases where the crime committed is so heinous that it shocks the conscience of the society.
  • Even in “rarest of the rare” case, court has to render “special reasons” for giving capital punishment.
  • Last few judicial execution:
    • Four convicts in Nirbhaya rape case of 2012 (20 March 2020)
    • Yakub Memon (2015) (convicted for 1993 Bombay blasts)
  • Law Commission recommended abolition (2015): Law Commission of India in 2015 recommended the abolition of capital punishment for all crimes in India, excepting the crime of waging war against the nation or for terrorism-related offences.

Death Penalty for rape

  • Sexual violence is considered a heinous crime and in “rarest of the rare” cases death penalty is awarded for rape.
  • It is argued that the death penalty for rape might encourage the rapists to murder victims.
  • Justice Verma Committee (2013) opined that death penalty should not be awarded for the offence of rape.

Avenues before a convict who is given a death penalty

  • A death penalty given by district court has to be confirmed by High Court.
  • Appeal, Review petition and Curative petition can be filed in SC in that order against High Court's decision.
  • At last, the convict can file Mercy petition before President (Article 72) or Governor (Article 161). [Executive clemency]
  • If there is inordinate unexplained delay in execution, SC can give judicial clemency.

International scenario

  • In 1863, Venezuela became the first country to abolish capital punishment for all crimes.
  • Around two-third of the countries have abolished capital punishment (including UK). (US has capital punishment)

Issues in capital punishment

Why capital punishment is not a good deterrence?

  • Deterrence comes not from the severity of the punishment but by certainty of punishment.
  • In India conviction rates are very low (49% in IPC cases; NCRB 2017), and hence deterrence theory fails.

Are poor more vulnerable to capital punishment?

  • Justice P.N. Bhagwati remarked that “death penalty in its actual operation is discriminatory for it strikes mostly against the poor and deprived”.
  • The reasons include lack of adequate legal assistance to the marginalised.
  • However, these are issues of our criminal justice system, and not that of capital punishment per say.

Does capital punishment violate Article 21?

  • No. Article 21 states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
  • It means that if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.
  • SC has upheld the validity of capital punishment in various judgements, more recently in Bachan Singh vs State of Punjab (1980).
  • However, mandatory capital punishment (meaning that only death penalty can be given for a crime) is unconstitutional. (Mithu vs State of Punjab (1983))

What would constitute a “rarest of rare” case?

  • In Bachan Singh vs State of Punjab (1980), SC provided broad illustrative guidelines for deciding “rarest of rare” case.
  • Capital punishment should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”.
  • The court has to ascertain whether justice will not be done if any punishment less than the death sentence is awarded.
  • To ascertain this the court can ask two questions -
    • First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?
    • Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?