What is Death Penalty

Context:

While hearing death sentence appeals since September 2021, the Supreme Court has repeatedly expressed concern over the manner in which trial courts and High Courts have carried out sentencing with very little (relevant) information.

Relevance:

GS-II: Polity and Constitution (Judiciary, Important Judgements)

Dimensions of the Article:

1. What is Death Penalty/Capital Punishment?
2. Capital Punishment in India
3. Bachan Singh vs. State of Punjab (1980) judgement on Capital Punishment
4. How capital punishment goes against the Principle of Natural justice?
5. Bringing up Collective conscience of society
6. What is Collective Conscience of Society?
7. J.S. Verma Committee and A P Shah Committee

What is Death Penalty/Capital Punishment?

• Capital punishment, also called the death penalty, is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence.
• It is the highest penalty awardable to an accused.
• Generally, it is awarded in extremely severe cases of murder, rapes, treason etc.

Arguments in Favour of Death Penalty

• Arguments along the lines of “Retribution” state that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime. One of the key principles of retribution is that people should get what they deserve in proportion to the severity of their crime.
• Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
• It is often argued that the death penalty provides closure for victims’ families.
• There are many examples of persons condemned to death taking the opportunity of the time before execution to repent, express remorse, and very often experience profound spiritual rehabilitation.

Arguments Against Death Penalty

• The statistical evidence doesn’t confirm that deterrence works. Some capital crimes are committed in such an emotional state that the perpetrator did not think about the possible consequences. Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC), still, rapes continue to happen and in fact, the brutality of rapes has increased manifold. This compels one to think of the death penalty is an effective deterrent to crime.
• The most common argument against capital punishment is that sooner or later, innocent people may get killed, because of mistakes or flaws in the justice system. According to Amnesty International – “As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.”
• People who oppose Capital punishment are of the view that retribution is immoral, and it is just a sanitised form of vengeance.
• Death has been abolished as a form of punishment in most of the developed countries. The UN Secretary General’s report on the death penalty presented to the Human Rights Council held that “some 170 States have abolished or introduced a moratorium on the death penalty either in law or in practice, or have suspended executions for more than 10 years”.
• Capital punishment doesn’t rehabilitate the prisoner and return them to society.

Capital Punishment in India

• Prior to the Criminal Procedure (Amendment) Act (Cr PC) of 1955, the death penalty was the rule and life imprisonment an exception in India. Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences.
• After the amendment of 1955 courts were at liberty to grant either death or life imprisonment. As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.In concurrence of this, a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 35th report 1967.
• The Indian Penal Code prescribes ‘death’ for offences such as
  • Waging war against the Government of India. (Sec. 121);
  • Abetting mutiny actually committed (Sec. 132);
  • Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194);
  • Murder (Sec. 302);
• Direct or indirect abetment of sati is punishable with Death penalty under the Commission of Sati (Prevention) Act, 1987.
• Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty.
• Besides these, rape of a minor below 12 years of age is punishable with death under Protection of Children from Sexual Offences (POCSO) Act, 2012.
• Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for repeat offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
• Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide the death penalty for certain specified offences committed by members of the armed forces.

Bachan Singh vs. State of Punjab (1980) judgement on Capital Punishment

• The Supreme Court in its 1980 judgment in Bachan Singh v. State of Punjab, where a Constitution bench of the Supreme Court was called upon to decide the constitutional validity of the capital punishment, had laid down the framework for sentencing to death.
• The Supreme court had made it very clear that Capital punishment in India can be given only in rarest of rare cases.
• It required the weighing of aggravating and mitigating circumstances relating to both the circumstances of the offence and the offender, to decide whether a person should be sentenced to death or given life imprisonment.
• According to the Bachan Singh judgment, for a case to be eligible for the death sentence, the aggravating circumstances must outweigh the mitigating circumstances.
• If the alternative punishment of life imprisonment can be “unquestionably foreclosed”, Only then can death penalty be imposed.
• The Bachan Singh judgement recognized the age of the accused as a relevant mitigating circumstance.
• While stating that honour killings fall within the “rarest of the rare” category, Court has recommended the death penalty be extended to those found guilty of committing “honour killings”, which deserve to be a capital crime.
• The Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings.

What is mitigation, and what are mitigating factors?

• A criminal trial has two stages —
  • the guilt stage
  • the sentencing stage.
• Sentencing happens after the accused has been found guilty of the crime; this is the stage where punishment is determined. Therefore, anything presented or said during sentencing cannot be used to reverse or change the finding of guilt.
• It is a fundamental tenet of criminal law that sentencing must be individualised, i.e, in the process of determining punishment, the judge must take into account individual circumstances of the accused.
• It speaks to a very intuitive sense of justice that all our decisions and actions result from a complex interplay of various factors concerning our lives, and the emphasis is that such interplay is different for each individual.
• The idea of mitigation is to give practical application to considerations of culpability and deservedness that are crucial to the moral idea of punishment.
• Justice would be an incomplete idea if criminal law was incapable of considering an individual in all their complexity and the various factors that contributed to a set of decisions and actions in their lives.

How capital punishment goes against the Principle of Natural justice?

• The first element, ‘protection of society,’ is not served by imposing the death sentence any better than by incarceration. This has been proven time and again as inmates have spent decades on death row, harming no one, but being brutalised by the inhuman punishment meted out to them.
• Second, there are several factors which affect criminal activity and deterrence is only one of them.
• In a UN survey, it was concluded that “capital punishment deters murder to a marginally greater extent than the threat of life imprisonment.”
• It is not just statistics that prove the case against deterrence, so does logic. A reasonable man is deterred not by the gravity of the sentence but by the detectability of the crime.
• Third, the facet of ‘reform and rehabilitation of the criminal’ is immediately nullified by the prospect of capital punishment
• This leaves only the final element — ‘the retributive effect’. Killing should never be carried out based on the primal and emotive desire among human beings for revenge. Revenge is a personalised and emotional form of retribution, which often loses sight of proportionality.

Bringing up Collective conscience of society

• ‘Collective conscience of society’ as a ground to justify death penalty was first used by the Supreme Court in the 1983 judgment of Machhi Singh v. State of Punjab.
• In that case, the court held that when “collective conscience of society is shocked, it will expect the holders of the judicial power centre to inflict death penalty”.
• ‘Collective Conscience of Society’ was also used in 2005 judgment in the Parliament attack case in which it awarded capital punishment to convict, Afzal Guru and 2017 judgment of the Supreme Court in the December 2012 Delhi gang rape case of Mukesh v. State of NCT of Delhi.

What is Collective Conscience of Society?

• Collective consciousness (sometimes collective conscience or conscious) is a fundamental sociological concept that refers to the set of shared beliefs, ideas, attitudes, and knowledge that are common to a social group or society.
• The collective consciousness informs our sense of belonging and identity, and our behavior.
• In general, it does not refer to the specifically moral conscience, but to a shared understanding of social norms.
• However, some experts say “Collective Conscience of Society”’ is an amorphous term, and is not possible to judicially determine what it means.

J.S. Verma Committee and A P Shah Committee

• The Justice Verma Committee, which was formed days after the horrific Nirbhaya gangrape case in Delhi in December 2012 to review criminal law related to sexual assault, batted for enhanced punishment, including imprisoning one for the remainder of hi…
• Justice J S Verma Committee and Law Commission had argued against executions, viewing it as a “regressive step” even in rarest of rare cases, as punishment “cannot be reduced to vengeance”.
• The Justice Verma Committee said, “in the larger interests of society, and having regard to the current thinking in favour of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness, we are not inclined to recommend the death penalty”.
• The ‘262nd Report: The Death Penalty’ by the Commission headed by Justice (Retd) A P Shah in 2015 wanted abolition of death penalty for all crimes except terror cases while hoping that the move towards absolute abolition will be “swift and irreversible”.

-Source: Indian Express