The Authors, Damanjit Kaur and Shubham Sharma are Partners at D&S Law Chambers.
An eye for an eye makes the world go blind.
Article 21 of the Indian Constitution is considered as the most organic and dynamic and multi-dimensional provision which forms the foundation of majority of our laws. As per Article 21 –
“21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”
“Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity. The strict following of the procedure established by law may lead to the Capital Punishment being awarded in an unjust manner as opposed to following the Doctrine of “Due process of law”.
The concept of Capital Punishment draws its strength from Article 21 of the Indian Constitution which empowers the Judiciary to deprive a person of his life and personal liberty. India is among the 54 countries that have retained the practice of meting out Capital Punishment for offences that span over 59 sections, across 18 central legislations of which 12 sections are under the Indian Penal Code, 1860. In India Capital Punishment is awarded for - Murder simpliciter, Sexual offences, Terror offences, Kidnapping with murder, Dacoity with murder, Offences under defence legislations & Drug offences.
As lawyers, we are neither abolitionists nor are we blind advocates of Capital Punishment in the absence of any conclusive evidence of the death penalty’s deterrent value. What one needs to recognize and realize is whether Capital Punishment has actually led to any social change albeit a legal change.
Prevention is better than cure
The 2012 Nirbhaya Rape Case, shook the collective conscience of the Nation, emotions were running high & the instinct of seeking vengeance was overpowering the minds of every citizen. Subsequently on 13th Sept, 2013 the 4 Accused were awarded the Capital Punishment. However the lengthy procedure of the confirmation of the death sentence by the Hon’ble High Court of Delhi as per Sections 366 to 371, Code of Criminal Procedure, 1908 and the legal and constitutional remedies of review, curative and mercy petitions available to the Convicts to exhaust, their journey to the gallows took 7 years. In those 7 years, our Nation witnessed Shakti Mills gang-rape, Gang-rape’ in Badaun, Rape of six-year-old at Vibgyor High, Uber rape case, Kathua rape case, Disha rape case (Telagana), Unnao rape case, Hathras Gang rape case amongst several other un-reported cases.
There lies a huge difference in awarding a death sentence and in the actual execution of that award in our Indian Criminal Justice System. The time elapsed between the pronouncement of the award and the actual execution of the same is more than often so long that the sentence loses its essence and effectiveness, and thereby fails to act as a deterrent force, against the commission of such gruesome offences.
Death penalty has been prescribed as a punishment for murder since the very inception of the Indian Penal Code, yet, the offence of murder continues to be committed unabated. The Criminal Law (Amendment) Act, 2013 has prescribed death sentence in rape cases, and yet, rapes continue to be committed and in fact, the brutality of rapes has increased manifold. This definitely compels one to contemplate if the death penalty is an effective deterrent to the recurring commission of crime.
A total of 51, 56,172 cognizable crimes comprising 32, 25,701 Indian Penal Code (IPC) crimes and 19, 30,471 Special & Local Laws (SLL) crimes were registered in 2019. A total of 4, 05,861 cases of crime against women were registered during 2019, showing an increase of 7.3% over 2018 (3, 78,236 cases).
Despite the aftermath of the Nirbhaya Rape Case, as per the NCRB data, if more than 68 girls and women were raped every day in 2012, the number increased to 91.38 in 2018. The purpose of instilling fear of law, in the minds of the subsequent perpetrators, has failed to have the deterrent effect as was intended by the Legislature while retaining the provision for awarding Capital Punishment for heinous offences.
“Centuries of patriarchy have conditioned men to believe in their superiority and to look down upon women as inferior beings. What we need is better policing, making public spaces safer for women, ensuring round the clock surveillance of isolated areas and deployment of police at all strategic points. It is not harsher punishments that will deter. It is the fear of being caught and not being spared. A system that ensures that no accused can manipulate or manage to wriggle out of the clutches of law. A system that deals with rape cases expeditiously from arrest till the execution of sentence and no one is spared.”
Even if we consider Offences relating to Terrorism, resorting to this type of punishment to curb terrorism is futile. There is a lack of persuasive evidence that the death penalty could contribute more than any other punishment in eradicating terrorism. No study so far has been able to show that the death penalty deters crimes more effectively than other punishments. People committing terrorist acts are dedicated to their cause, and often ready to die for it, which counteracts and neutralizes whatever legal threat is meant to deter them and actually transforms it into a “perverse incentive”.
Death penalty advocates’ fear that the state relinquishing the ultimate punishment will encourage potential criminals, or at least weaken deterrence, prove to be unfounded in light of this evidence. Law alone cannot bring about a social change, it the social system that is in dire need of complete overhauling. The root cause of such heinous crimes need to be identified first, and efforts should be made by the Governments to ensure that the social evils of the society breeding such crimes must be eradicated.
Arbitrary power, established on the ruins of liberty.
The severe most punitive measure available to be awarded to an accused by a Court of law under the Indian Criminal Justice System is the death penalty or the Capital Punishment. A great deal of discretion has been granted to the Judiciary in awarding the death sentence which makes it increasingly vulnerable to be imposed and awarded in an arbitrary fashion. This is despite the well laid down procedure of confirmation under Sections 366 to 371 Cr.P.C along with the numerous guidelines laid down by the Hon’ble Apex Court on the judicious application of judicial mind while dealing with cases pertaining to offenses punishable with death sentence.
The first legal challenge to the constitutionality of the death penalty came in the year 1973 case of Jagmohan Singh vs State of Uttar Pradesh in which the petitioners argued that the death penalty was against the Constitution.
The Supreme Court, however, found that the death penalty was a permissible punishment. This was followed by the 1980 landmark verdict of the top court in the Bachan Singh case where it upheld the constitutionality of the death penalty but confined its application to the ‘rarest of rare cases’, to reduce the arbitrariness of the penalty. In Mithu v. the State of Punjab (2001), the Supreme Court declared that section 303 is unconstitutional because it is not in tune with articles 14 and 21 of the constitution.
The Law Commission of India in its 35th Report (1967) had advocated for the retention of death penalty in India stating the distinctive social situation of the country, then prevalent. However, in its 262nd Report, the Law Commission stated that death penalty does not serve the penological goal of deterrence any more than life imprisonment or any other like punishment. The commission, in its report published in 2015, recommended that the death penalty be abolished for all crimes other than terrorism-related offences and waging war against the State.
In the present day and age, the sole purpose of awarding Capital Punishment in a Criminal Justice System is to act as a deterrent for the society at large. However, when the punitive system following the retributive principles fails to achieve its sole purpose, it must be revised and replaced with an effective alternative.
References:-
- Stop Rapes: Need to Overhaul the Mindset By Ms. Vageshwari Deswal, Times of India. Available at: https://timesofindia.indiatimes.com/blogs/legally-speaking/stop-rapes-need-to-overhaul-the-mindset/
- The Death Penalty For Terrorism: Factsheet for Parliamentarians (September, 2016). Available at: https://www.pgaction.org/pdf/campaigns/death-penalty-for-terrorism.pdf
- 24 more rapes per day since Nirbhaya was gang-raped in 2012, written by Mr. Prabhash K Dutta, 20.03.2020, India Today. Available at: https://www.indiatoday.in/india/story/24-more-rapes-per-day-since-nirbhaya-was-gangraped-in-2012-1657646-202 Getting the hang of death penalty0-03-20
- Getting the hang of death penalty by Mr. Soibam Rocky Singh, MARCH 17, 2020. Available at: https://www.thehindu.com/news/cities/Delhi/getting-the-hang-of-death-penalty/article31086083.ece
- https://ncrb.gov.in/en/crime-india-2019-0
Picture Source :
