Context: The Supreme Court’s decision to frame uniform norms for trial courts in awarding the death sentence is a welcome intervention. This is a case that a three-judge bench led by Chief Justice of India U U Lalit had taken up on its own and has now referred to a larger Constitution bench of five judges.
What are the kinds of punishment awarded for Crimes in India?
Section 53 of the Indian Penal Code, 1860 prescribes 5 kinds of punishments that can be awarded to criminals. This includes:
Death Penalty: Under this punishment, a person is hanged till he dies. Death penalty is prescribed in certain IPC offences like Waging war against the Government of India (Sec 121), Murder (Sec 302) etc.
Provision of Death Penalty is also there for some offences covered under certain other Acts like the Army Act (1950), BSF Act (1968), Defense of India Act (1971), NDPS Act (1985), POCSO Act (2012, as amended in 2019) etc. It is awarded in the ‘rarest of rare cases’.
Life Imprisonment: In its ordinary connotation imprisonment for life means imprisonment for the whole of the remaining life period of the convicted person’s natural life.
Imprisonment (Simple or Rigorous): Simple imprisonment is a punishment in which the offender is confined to jail only. He is not subjected to any hard labor. In rigorous imprisonment, a person is put to hard labor such as digging, cutting wood etc.
Forfeiture of Property: The State seizes the property of a criminal. The property forfeited may be movable or immovable.
Fine: The State can also impose a monetary punishment on a criminal.
What is the current status of Death Penalties awarded in India?
The number of prisoners on death row at the end of 2021 stood at 488, the highest in 17 years, according to the Death Penalty in India Report.
According to the report, while trial courts imposed a total of 144 death sentences in 2021, High Courts decided only 39 matters in the same period.
The Supreme Court, despite listing death penalty cases on priority in September last year, decided only 6 cases in 2021 compared to 11 in 2020 and 28 in 2019.
What is the Judicial view on Death Penalty?
Ediga Anamma v. the State of Andhra Pradesh, (1974): The Supreme Court (SC) laid down the principle that life imprisonment for the offence of murder is the rule and capital punishment is the exception in certain cases.
Bachan Singh v. the State of Punjab, (1980):The SC stated that the death penalty should be awarded only in ‘rarest of rare‘ cases. A case becomes rarest of rare when there is extreme culpability of the offender in committing the offence of murder; and an extreme cause of the offender in committing the offence of murder.
The Supreme Court stated that it should be issued only when the alternative of a life sentence is ‘unquestionably foreclosed’. The death penalty should be awarded after seeing the aggravating and mitigating factors and balance of the same.
What are arguments in favour of Death Penalty?
Maintaining Deterrence: The foremost argument given in support is the level of deterrence maintained in society by awarding death penalty. Many people believe that a person may restrain himself from committing a heinous crime like murder if death penalty is awarded for it.
National Security: Some acts like waging war against the State, terrorism etc. erodes the sanctity of our National Security framework. Such acts threaten the very existence of the country and its people. For instance, Ajmal Kasab was awarded the death sentence for carrying out 26/11 Mumbai attacks.
Acts that shake the collective conscience: Supporters of Death Penalty says that there are some acts which shakes the collective conscience of society and deserves nothing except death penalty.
For instance, The Vinay Sharma v. the Union of India (2020) case, also famously known as the Nirbhaya gang-rape case, had shocked the conscience of the whole country. One of the accused committed suicide in jail and one of the accused was a juvenile so he was not sentenced to death.
But the other four accused were sentenced to death and were also hanged in the year 2020.
Safety of Citizens: Proponents of capital punishment argue that some criminals commit most terrible of crimes and are beyond redemption (e.g., some accused of multiple rape cases). They show no remorse or repentance. There is no change of reform and should be awarded death sentence for safety of citizens.
What are the arguments in favour of abolition of Death Penalty?
High Degree of Subjectivity: There is a high degree of subjectivity in awarding death sentences as the judges find it difficult to balance the mitigating and aggravating factors.
According to the Death Penalty India Report 2016 (DPIR), approximately 75% of all convicts sentenced to death in India are from socio-economically underprivileged categories, such as Dalits, OBCs, and religious minorities.
Mental Stress: In many cases the convicts have to undergo a huge term of imprisonment before being finally executed.
The findings of Project 39A’s report ‘Deathworthy’ shows that the segregated, alienated, and stigmatized experiences of being on a death row for a longer time result in mental illness.
Irreversible in Nature: Courts often give compensation to individuals who are wrongly convicted and have spent considerable time in jail due to an error by the State. However, if a person is wrongly hanged, then no amount of compensation can bring back the person and mitigate the error.
Inhumane: Human rights and dignity are incompatible with the death penalty. The death sentence is a violation of the right to life, which is the most fundamental of all human rights.
Global Precedent – No correlation with low crime rates:
Scandinavian countries like Norway, Sweden and Finland have one of the lowest crime rates in the world without death penalty. They focus on reforming the criminal rather than deterring him with stricter and harsh punishments.
More than 100 countries have already abolished death sentence for all offences. This includes most European nations, Australia, New Zealand etc.
What lies ahead?
The Supreme Court can step in and commute Balwant Singh’s death sentence on account of undue delay in disposal of the mercy petition that has violated his right to life under Article 21 of the Indian Constitution.
The SC should release updated guidelines on how to balance the aggravating and mitigating factors in cases.
The Courts can evolve innovative ways for giving stricter punishment in place of death penalty. For instance, giving minimum 25-30 years rigorous imprisonment that can’t be reduced or reviewed.
The focus should be on ensuring certainty of punishment rather than quantum of punishment that will act as a better deterrent for criminals.
The Union Government should also act swiftly on mercy petitions based on merits and not on political advantage/disadvantage it may get from the petition.
Conclusion:
The Law Commission in its 262nd report proposed that the death penalty should be abolished for all crimes excluding terrorism-related offences and war. The experience of the Scandinavian countries also supports this view. However, till the time it happens, there should be proper implementation of the Bachan Singh Judgment by the Indian Courts.
