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Should India Abolish the Death Penalty?

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    SHOULD INDIA ABOLISH THE DEATH PENALTY? A Debate on Abetment/ Retention of The Death Penalty Legal Methods Table Of Cases 1. Bachan Singh v. State of Punjab (AIR 1982 SC 1325) 2. Furman v. State of Georgia, (1972) 408 US 239 3. Gregg v. Georgia, (1976) 428 US 153 4. Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947 5. Jurek v. Texas, (1976) 428 US 262 6. Kehar Singh v. Delhi Administration, AIR 1988 SC 1883 7. Laxman Naik v. State of Orissa, AIR 1995 SC 1387 8. Machhi Singh v.

    State of Punjab AIR 1983 SC 957; 1983 Cri LJ 1587. 9. Proffit v. Florida, (1976) 428 US 242 10. Rajendra Prasad v. State of UP, AIR 1979 SC 916 11. State of Maharashtra v. Sukhdeo Singh, AIR 1992 SC 2100 Table of Contents Introduction……………………………………………………………………………4 Constitutional Validity of Death Penalty……………………………………………… 6 Rarest of rare Doctrine……………………………………………………………….. 11 Evolving Parameters of Death Penalty………………………………………………. 12 Sec. 303 of IPC as Unconstitutional………………………………………………….. 4 Cases In Favour Of Death Penalty……………………………………………………16 Conclusion……………………………………………………………………………18 Bibliography…………………………………………………………………………. 19 Introduction “Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. ” ~ Supreme Court of the United States of America

    Death sentence is the harshest punishment provided in the IPC, which involves the judicial killing or taking the life of the accused as a form of punishment. The question of whether the state has the right to take the life of a person, however gruesome the offence he may have committed, has always been a contested issue between moralists who feel that death sentence is required as a deterrent measure, and the progressive who argues that judicial taking of life is nothing else but court mandated murder. [1]

    The Law Commission of India has taken up the subject suo moto due to the technological advances in the field of science, technology, medicine, anesthetics and since more than three decades have passed by after the 35th Report of the Law Commission on Capital Punishment, 1967 with reference to the mode of executing death penalty. The various modes of execution of death sentence as prevalent at that time in 1967 were studied by the Law Commission. The Commission in Topic 58(c) paragraph 1149, concluded: “We find that there is a considerable body of opinion which would like hanging to be replaced by something more humane and more painless….. [2] However, the Commission was not able to arrive at any firm conclusion on this point as explained in Para’s 1150 and 1151. “1150. The matter is, to a certain extent, one of medical opinion. That a method which is certain, humane, quick and decent should be adopted, is the general view, with which few can quarrel. It is true that the really agonizing part is the anticipation of impending death. But society owes to itself that the agony at the exact point of execution be kept to the minimum.

    It is, however, difficult to express an opinion positively as to which of the three methods satisfied these tests most, particularly when the two other methods are still untried. We are not, at present, in a position to come to a firm conclusion on this point. Progress in the science of anesthetics and further study of the various methods, as well as the experience gathered in other countries and development and refinement of the existing methods, would perhaps, in future, furnish a firm basis for conclusion on this controversial subject. 3] 1151. We do not therefore recommend a change in the law on this point. We should, however, state here that we do not subscribe to the view that the substitution of any other method will reduce the deterrent effect of the penalty of death. ” [4] Constitutional Validity of Death Penalty The most extreme form of punishment provided under the Indian Penal Code, 1860 (hereinafter the Code) is that of death sentence. Time and again questions have been raised about the efficacy and use of death penalty as a mode of punishment.

    Macaulay himself stated that the death sentence was intended to be used only for grave offences such as murder or the highest offences against the State[5] (in light of which the Indian Supreme Court has evolved the rarest of rare doctrine, as discussed later). The Code prescribes death sentence as an alternative mode of punishment in case of the following offences – 1) Waging war against the government of India (S. 121); 2) Abetting mutiny actually committed (S. 132); ) Giving or fabricating false evidence on the basis of which an innocent person suffers death (S. 194); 4) Murder (S. 302); 5) Abetment of suicide of a minor or insane or intoxicated person (S. 305); 6) Attempt to murder by a person under life imprisonment, if hurt is caused (S. 307); 7) Kidnapping for ransom (S. 364-A); 8) Dacoity accompanied with murder (S. 396). The controversy regarding the efficacy of death sentence has been played out before the Indian Supreme Court and the various High Courts as well.

    There have been divergent views expressed at times by the judiciary, but the issue has been settled in favour of retaining death penalty – as least for now. In the case of Jagmohan Singh v. State of Uttar Pradesh,[6] the constitutional validity of death sentence under Sec. 302 sentence was challenged for the first time as being contrary to Arts. 14, 19 and 21 of the Constitution. In the case, the appellant was charged with the murder of Chottey Lal, who had allegedly killed the appellant’s uncle but had been acquitted. The judgment of the Court was delivered by D. G.

    Palekar J. , who stated that the ‘right to life’ was basic to the freedom mentioned in Art. 19 of the Constitution, and no law can deprive the life of a citizen unless it is reasonable and in the public interest. Therefore, the question was whether Sec. 302 qualified the above test. The Court considered the case of Furman v. State of Georgia,[7] wherein the US Supreme Court had held by a majority that the imposition and carrying out of the death penalty constitutes a ‘cruel and unusual’ punishment in violation of the Eighth and Fourteenth Amendments to the US Constitution.

    However, the Indian Supreme Court did not accept this reasoning and stated that since the Indian Constitution did not contain any provision similar to the Eighth Amendment, the Indian Courts were free to apply the test of reasonableness. Further, capital punishment cannot be described as unusual because that kind of punishment has been practiced from ancient time right up to the present day, though the number of offences for which it can be imposed has continuously dwindled.

    Also, the Constitution framers were well aware of the existence of capital punishment as a permissible punishment under the law – as is evidenced by Art. 72 of the Constitution. The court also stated that deprivation of life is constitutionally permissible if that is done according to the procedure established by law (as contemplated under Art. 21). The court relied upon the 35th Law Commission Report which had favored the retention of the capital punishment, and had stated that ‘India cannot risk the experiment of abolition of capital punishment. ’ Therefore, in light f the above-mentioned reasons the Court found that capital punishment was not unreasonable and hence was not violative of Arts 19 and 21 of the Constitution. Subsequently in the case of Rajendra Prasad v. State of UP,[8] three appeals had been combined, and the main question in all of them had been as to when and why capital sentence shall be pronounced on a murderer and why not in other cases. Krishna Iyer J. , vehemently attacked this discretion left to the Courts. He advocated the abolition of the death penalty, on the grounds that – 1) Sec. 302 IPC and Sec. 354(3) Cr. P.

    C have to be read in the humane light of Parts III and IV, as well as the Preamble to the Constitution; 2) The scheme of IPC, read along with the Constitution, clearly implies reformation + deterrence (and not retribution) as the benchmark for sentencing policy; 3) The current ethos, in favour of human rights and against death penalty, along with Gandhian culture must form a part of social justice; 4) The personal, social and physical circumstances are relevant while sentencing a person; 5) In light of the social justice as contemplated by Art. 38 and the regime of non-arbitrariness and reasonableness through Arts. 4 and 19, the death sentence should be limited only to white-collar criminals who commit crime for personal monetary or property gain; 6) The death sentence should extend to criminals who kill law-enforcement officers in course of their duty, as well as corporate criminals who intentionally act in such a manner (with the consent of top decision-makers) that the consumer will in all probability die. Therefore, we see that Krishna Iyer J. greatly limited the scope of application of capital punishment. He virtually abolished capital punishment – except for three exceptional circumstances, viz. 1) white collar offenders; 2) anti-social offenders; and 3) ‘hardened murderers’ i. e. , those who are a menace to society. A. P. Sen J. , dissenting from the majority judgment, relied upon US Supreme Court decisions and upheld the validity of the death sentence. He further stated that the US Supreme Court decisions in the cases of Gregg v. Georgia,[9] Proffit v. Florida,[10] and Jurek v. Texas[11] had nullified the effect of the Furman decision by upholding capital punishment. Therefore, capital punishment was constitutional and there was no need to abolish it. A. P Sen J. urther stated the Sec. 354 (3) Cr. P. C required the Court to record special reasons for awarding capital punishment rather than life imprisonment – the introduction of this provision had ensured that capital punishment was used sparingly. It was further recorded that there were numerous opportunities for the review of such a decision of capital punishment, and hence it cannot be said that capital punishment violates the rights enshrined in Part III of the Constitution. The constitutional validity of death penalty was further considered by a Constitutional Bench of the Supreme Court in Bachan Singh v.

    State of Punjab[12]. The Constitutional Bench by a majority of four judges after a lengthy discussion on the issue, overruled the Rajendra Prasad Case. Sarkaria J. (on behalf of the majority) held that it could not be envisaged that any of the rights mentioned in Art. 19(1) of the Constitution confer the freedom to commit murder, or for that matter, any offence. Therefore, penal laws don’t attract the application of Art. 19(1). Further, the deprivation of freedom and liberty is merely incidental to the order of conviction and sentence – which may or may not be passed.

    The Supreme Court while upholding the constitutional validity of death sentence, observed: Sec 354(3) of CrPC, 1973, marks a significant shift in the legislative policy underlying the code of 1898…according to which both the alternative sentences of death or imprisonment for life provided for murder and certain other capital sentences provided under the Penal Code, were normal sentences. Now, according to this changed policy which is patent on the face of Sec 354(3), the normal punishment for murder and six other capital offences under the Penal Code is imprisonment for life and death penalty is an exception.

    The Supreme Court, quoting from the report of the Joint Committee of Parliament observed: A sentence of death is the extreme penalty of law and it is but fair that when a court awards that sentence in a case where the alternative sentence of life imprisonment for life is also available, it should give special reasons in support of the sentence. The Court came to the conclusion that the Constitution recognized the right of the State to deprive a person of his right to life or personal liberty in accordance with the fair, just and reasonable procedure established by valid law. Also, there are several ndications in the Constitution showing that the Constitution-makers were well aware of the existence of the provision for death penalty in the IPC, such as Arts. 72 and 161 (power of President and Governor to suspend, remit or commute sentences, respectively) and Entries 1 and 2 of List III. Therefore, the Court held that capital punishment did not violate Art. 21. The Court also took into consideration Art. 6 of the ICCPR, which provided that countries that have not abolished death penalty may impose death sentence only for the most serious crimes in accordance with the law in force.

    The requirements of this provision were essentially similar to those found in the Indian Constitution, as well as those in IPC and CrPC. Hence, the Court held that India had not violated its international obligations by retaining death penalty. P. N. Bhagwati J. delivered the dissenting judgment in the Bachan Singh case and declared capital punishment as unconstitutional. He based his judgment on the following reasons – 1) The imposition of death penalty is left to the unguided discretion of the Court, contrary to the principle enshrined under Art. 4 of the Constitution; 2) The possibility of judicial error in imposition of death penalty cannot be minimized, and the execution of an innocent man due to a judicial error would be a crime beyond punishment; 3) The imposition of death penalty is also not justified by penological goals; its deterrent effect is disputed and it completely rules out the reformative process. Rarest of rare Doctrine Bachan Singh Case laid down certain instances under which the imposition of death penalty was possible – 1. If the murder has been committed after previous planning and involves extreme brutality; or 2.

    If the murder involves extreme depravity; or 3. If the murder is of a member of any of the armed forces of the union or of a member of any police force or of any public servant and was committed- • While such member or public servant was on duty; or • In consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or 4.

    If the murder is of a person who had acted in the lawful discharge of his duty under Sec. 43 CrPC, or who had rendered assistance to a magistrate or police officer under Sec. 37 and Sec. 129 CrPC. Evolving Parameters of Death Penalty Referring to the guidelines and the rarest of rare doctrine spelled out in the Bachan Singh Case, the Supreme Court, in Machhi Singh v. State of Punjab[13], the accused had been involved in a family feud, during the course of which 17 lives were lost, has culled out a set of precise guidelines to be applied to the facts of each individual case where the question of imposing death sentence arises.

    They are: 1. Manner of commission of murder The commission of murder in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community, such as – a. When the house of the victim is set aflame so as to roast him alive; b. When the victim is subjected to inhuman acts of torture or cruelty leading to his death; c. When the body of the victim is cut into pieces. 2. Motive for commission of murder The commission of murder for a motive which evinces total depravity and meanness, such as – a.

    Murder by assassin for monetary gain; b. Cold blooded murder with deliberate design to inherit property or other similar gain; c. Murder in course of betrayal of the motherland. 3. Anti-social or socially abhorrent nature of crime a. Murder of a member of Scheduled Caste/minority etc. for inciting communal violence; b. Dowry-deaths or bride burning. 4. Magnitude of crime The proportionality of the crime, the number of people, the manner of commission etc – is also relevant. 5. Personality of the victim of murder a.

    The murder of an innocent child without an excuse or provocation; b. The murder of a helpless woman or a disabled person; c. The murder of a person in a fiduciary relationship; d. The murder of a well-known public figure (for political or similar reasons), who has rendered material services to the community. To determine whether a case falls within the rarest of rare category, the court formulated the following 2 questions – 1. “Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls death sentence? 2.

    Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? ” On an examination of the merits of the case, the court confirmed the death sentence of Machhi Singh and the other appellants. Sec. 303 of IPC as Unconstitutional The constitutional validity of Sec. 303 IPC was challenged before the SC in the case of Mithu v. State of Punjab. [14] Sec. 303 provides for a mandatory death sentence in case of murder by a life convict undergoing life sentence.

    The Court held that there is no valid basis for classifying persons who commit murders whilst they are under the sentence of life imprisonment as distinguished from those who commit murders whilst they are not under the sentence of life imprisonment, for the purpose of making the sentence of death mandatory in the case of the former class and optional in the case of the latter class. Murders can be motiveless in the sense that, in a given case, the motive which operates on the mind of the offender is not known or is difficult to discover.

    But, by and large, murders are committed for any one or more of a variety of motives which operate on the mind of the offender, whether he is under a sentence of life imprisonment or not. Such motives are too numerous and varied to enumerate but hate, lust, sex, jealousy, gain, revenge and a host of weaknesses to which human flesh is subject are common motives for the generality of murders. Those reasons can operate as a motive force of the crime whatever may be the situation in which the criminal is placed and whatever may be the environment in which he finds himself.

    The majority, through Chandrachud CJ, stated that the framers of the Penal Code had only one case in mind, namely, the murder of jail officials by the life convicts. Even if Sec. 303 was confined ourselves to that class of cases, the test of reasonableness of classification will break down inevitably. The court also failed to find any rational distinction between a person who commits a murder after serving out the sentence of life imprisonment and a person who commits a murder while he is still under that sentence.

    A person who has been in jail for 14 years, and commits the offence of murder after coming out of the jail upon serving out that sentence is not entitled to any greater consideration than a person who is still serving the sentence of life imprisonment for the mere reason that the former has served out his sentence and the latter is still under the sentence imposed upon him. The classification based upon such a distinction proceeds upon irrelevant considerations and bears no nexus with the object of the statute, namely, the imposition of a mandatory sentence of death.

    A person who stands unreformed after a long term of incarceration is not, by any logic, entitled to preferential treatment as compared with a person who is still under the sentence of life imprisonment. Both have to be treated alike in the matter of prescription of punishment and whatever safeguards and benefits are available to the former must be made available to the latter. Accordingly, due to the reasoning mentioned above, the Court held that Sec. 303 IPC violated the right to equality under Art. 14 as well as right to life under Art. 21. Cases In Favour Of Death Penalty

    It was observed by the Hon’ble Supreme court in the case of Jagmohan Singh v. State of UP[15] , “a large number of murders are undoubtedly of common type. But some at least are diabolical in conception and cruel in conception and cruel in execution. In some others where the victim is a person of high standing in the country, society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes, speaks in the option of many, for the inevitability of the death sentence but as the token emphatic disapproval of the society. Subsequently in the case Paras Ram v. State of Punjab, a man committed blood curdling butchery of his own son, Justice Krishna Iyer said, “the poignantly pathological grip of macabre superstitions on some crude Indian minds in the shape of desire to do human and animal sacrifices in defiance of scientific ethos of our cultural heritage and scientific impact of our technological century shows up in crimes of primitive horror such as on in this case, where a blood curdling butchery of one’s own child was perpetrated aided by other pious criminals to propitiate some blood thirsty diety.

    Secular India speaking through court must administer shock therapy to such anti social piety when administration in terms of inhuman and criminal violence. When the disease is social deterrence through court death sentence must perforce operate. ”[16] Supreme Court repeatedly in two judgments has held death sentence valid and constitutionally unaffected, by the fundamental rights of the individual under articles 14, 19 and 21 in Jagmohan Singh v. State of UP[17] and Bachhan Singh v. State of Punjab. [18] The controversy over pros and cons of abolition of death punishment was discussed by Mr. Sarkaria J. n an illuminative judgment and concluded for the majority: “notwithstanding the view of the abolitionist to the contrary, a very large segment of people, the world over including sociologist, legislators, jurists and judges and administrator still firmly believe in the worth and necessity of capital punishment for the protection of the society, if in the perspective of prevailing crime conditions in India contemporary public opinion channelized through peoples representative in parliament, has repeatedly in last three decades rejected all attempts including one made recently to abolish or specifically to restrict the area of death penalty, if death penalty is still a recognized legal sanction for murder or some types of murder in most of the civilized countries of the world, if the framers of the constitution were fully aware of the existence of death penalty ad punishment for murder under IPC , if the 35threport and subsequent reports of the law commission suggesting retention of death penalty and recommended revision of Criminal Procedure Code and the insertion of new Sec. 235(2) and 354(3) in the code providing for pre-sentence hearing and sentencing procedure on conviction of murder and other capital offences were before parliament and presumably considered by it when in 1972-73 it took up revision of the code of 1989 and replaced it by code of criminal procedure 1073, it is not possible to hold that the provision of death penalty as an alternative punishment for murder. ” Conclusion

    The inter-relationship between sentencing and the penal theories is complex and difficult, the complexity primarily arising from the fact that there are valid reasons to support, but then again, to critique each of the theories. The consequence of such a complicated inter relationship, is that it becomes necessary to rank the questions, “why do we punish” and “How should we punish”, among those eternal questions to which there exists no ready answers. The death penalty does not deter people from committing crimes. It is a cruel and cold blooded form of punishment and there have been instances where innocent people were sentenced to death and later found to be innocent. The system does not work and it’s been proven over and over with the fact that innocent people have died from accidental convictions. Murder cannot be cured by murder.

    The death penalty is cruel, inhumane and above all irreversible. It does not deter and isn’t as effective as life imprisonment. Hugo A. Bedau, professor of philosophy at Tufts University says, ‘The death penalty guarantees that the person on whom it is inflicted will commit no more crimes. He is prevented, not deterred, from so doing. But death, is too high a price to pay when studies show that convicted murderers rarely commit another violent crime. To prevent the occasional repeat murder, everyone convicted of criminal homicide would have to be executed- a policy too brutal to consider and one that would require dozens of legal killings each day. Bibliography Books: 1) M. P.

    Thakker, J. in Machhi Singh v. State of Punjab AIR 1983 SC 957; 1983 Cri LJ 1587. 2) K. D. Gaur, Criminal Law: Cases and Materials, (Butterworths India, New Delhi, 3rd edn. , 1999) p. 302 3) Ian Brownlie, Basic Documents in International Law, (Oxford, New Delhi, 5th edn. , 2003) 4) Shamim Mohd. ‘capital punishment’ Journal Section ,1989 Cri LJ 52 Websites: • http://www. manupatra. com/Pers/Personalized. asp • www. cwrl. utexas. edu • http://www. deathpenaltyinfo. org/article. php? scid=30&did=140#retentionist • www. deathpenaltyinfo. org Articles: • Nancy Jacobs, Alison Landes, and Mark A. Siegel. Capital Punishment, Cruel and Unusual?.

    Wylie: Information Plus, 1996. ———————– [1] Law Commission of India, ‘ Thirty-Fifith Report: Capital Punishment’, Government of India, 1967. [2] Supra [3] Supra [4] Supra [5] K. D. Gaur, Criminal Law: Cases and Materials, (Butterworths India, New Delhi, 3rd edn. , 1999) p. 302 [6] AIR 1973 SC 947 [7] (1972) 408 US 239 [8] AIR 1979 SC 916 [9] (1976) 428 US 153 [10] (1976) 428 US 242 [11] (1976) 428 US 262 [12] AIR 1980 SC 898. [13] AIR 1983 SC 957. [14] AIR 1983 SC 473 [15] AIR 1973 SC 947: 1973Cri LJ 370 [16] Special Leave Petition no. 698 & 678 of 1973 decided on 9-10-76 [17]Supra F No 12 [18] AIR 1980 SC 898: 1980 Cri LJ 636 ———————– 18

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