Open Access Research Article
DEATH PENALTY: A CRITICAL ANALYSIS BY: NANDAMURI VENKAT CHOWDARY & KHUSHBOO MALIK
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“DEATH PENALTY: A CRITICAL ANALYSIS”
AUTHORED BY: NANDAMURI VENKAT CHOWDARY
21212283
5BBALLB
CO-AUTHOR - KHUSHBOO MALIK
ABSTRACT
Along with the passing of time and
the evolution of legal jurisprudence in history of the mankind, the death
penalty, its usage, and purpose have always been a subject of ethical, philosophical,
and legal debate worldwide. The death penalty is a form of punishment, also
known as capital punishment. Many philosophers, political thinkers, and
libertarians have talked about their views on whether capital punishment should
be held eligible to serve as an effective deterrent. Proponents argue that it
serves as a necessary evil, keeping all the heinous crimes in check and
maintaining the scale of justice. On the other hand, opponents assert that it
infringes upon fundamental rights, including the right to life and the
prohibition of cruel, inhuman, or degrading treatment, Since the beginning of
the 20th century, the application of the death penalty in India has been a
highly heated matter in recent years, there has been a rising level of discussion
in India over the efficacy and justice of the use of the death sentence. In the
present time, the death sentence is applied for a variety of crimes, some of
which include homicide, treason, and acts of terrorism. This paper deals with
the overall concept of the death penalty while focusing mainly on the point of
using an alternate type of punishment instead of the death penalty in the
Indian legal system as it violates tv the culprit’s right to life under Article
21[1]
KEYWORDS
Death Penalty, Right to Life, Article
21, Capital Punishment, Judicial Interpretation and Global Perspective
INTRODUCTION
The death penalty, or capital
punishment, remains an encyclopedically contentious issue, raising questions
about its alignment with the abecedarian right to life, elevated in article 21
of the Indian Constitution. This right is the foundation of civil and political
liberties, emphasizing the essential worth of every individual anyhow of their
circumstances. India's Supreme Court has played a vital part in shaping the
justice girding the death penalty. In the corner case of Bachan Singh v. State
of Punjab (1980),[2] the
Supreme Court ruled that the death penalty should be reserved for" the
rarest of rare" cases where society's collaborative heart demands it. This
judgment introduced a balancing test to help arbitrary or disproportionate
operations. In a posterior case, Machhi Singh v. State of Punjab (1983)[3],
the court outlined specific aggravating and mitigating factors for sentencing,
including the nature of the crime and the eventuality of reformation,
emphasizing the significance of individual circumstances. still, enterprises
persist, especially regarding unlawful persuasions and the violation of the
right to life. In Santosh Kumar Bariyarv. State of Maharashtra (2009)[4],
the Supreme Court conceded the fallibility of the felonious justice system by
assessing strict substantiation norms in death penalty cases, pressing the need
for procedural safeguards to help unrecoverable loss of life. Encyclopedically,
the trend has been towards the invalidation of the death penalty, reflecting
enterprises about moral rights. numerous countries have limited or abolished
capital discipline, fetching the ethical and moral dilemmas associated with
taking a life as a punishment for a crime. This paper aims to give a
comprehensive analysis of the death penalty in the environment of Article 21 of
the Indian Constitution. It explores the legal frame, judicial interpretations,
and global practices girding the death penalty. Through a critical examination
of crucial legal precedents like Bachan Singh, Machhi Singh, and Santosh Kumar
Bariyar, it assesses how the Supreme Court has shaped the understanding of the
death penalty in relation to the right to life. The paper also delves into enterprises
about unlawful persuasions, the significance of procedural safeguards, and the
evolving global agreement against capital discipline. By slipping light on
these aspects, it seeks to enhance understanding of the complications girding
the death penalty and its counteraccusations for abecedarian rights.
Eventually, it aims to contribute to an informed and rights-centric approach to
the use of the death penalty, furnishing precious perceptivity for
policymakers, legal interpreters, and society at large
RESEARCH PROBLEM
To do an in-depth analysis about the
applicability of the death penalty in the Indian judicial system and the
validity of it getting awarded to criminals in the rarest of the rarest cases
and whether or not it constitutes the factor that it doesn’t violate the right
to life of those particular criminals who got verdict to the death penalty
RESEARCH QUESTION
1. How has the Supreme Court interpreted
Article 21 in relation to the death penalty, particularly with regard to
mitigating factors, principles of proportionality, and the inherent quality of
mercy?
2. Are there concerns raised
regarding the death penalty's compatibility with the right to life, such as the
risk of wrongful convictions, arbitrariness in sentencing, and potential
biases?
3 Santosh Kumar Bariyar v. State of
Maharashtra ca no. 1478 of 2005 with ca no. 452 of 2006 3. What is the global
perspective on capital punishment, and how does India's approach compare to
other countries that have abolished or limited the use of the death penalty?
4. What alternative approaches to
capital punishment exist that respect the right to life while addressing the
objectives of justice and security?
RESEARCH OBJECTIVES
To analyze the interpretation of
Article 21 by the Supreme Court of India in relation to the death penalty,
particularly with regard to mitigating factors, principles of proportionality,
and the inherent quality of mercy.
To investigate the concerns
surrounding the compatibility of the death penalty with the right to life,
including the risk of wrongful convictions, arbitrariness in sentencing, and
potential biases.
To compare India's approach to
capital punishment with other countries that have abolished or limited its use,
considering the global perspective on this issue.
To investigate alternative approaches
to capital punishment that respect the right to life while upholding the
objectives of justice and security.
LITERATURE REVIEW
Kunal Ambasta, 2017:
Kunal Ambasta's 2017 review
critically examines the empirical foundations and legal implications of the
Death Penalty India Report, a comprehensive study assessing the state of the
death penalty in India. Ambasta questions the report's clarity and reliability,
pointing out potential flaws in data collection and analysis processes. He
emphasizes the need for a more coherent framework for data collection to avoid
skewed conclusions. Ambasta argues that robust empirical analysis is crucial
for informed discussions on capital punishment, as unclear methodologies can
lead to misinterpretation or manipulation of findings. From a legal
perspective, he raises concerns about how the report's empirical shortcomings
could affect legal arguments and potential changes to the death penalty system.
Ambasta also addresses the broader societal impact of the report, urging
stakeholders to critically assess the information presented to promote informed
public discourse Building upon, further research could delve into the Death
Penalty India Report's methodological shortcomings, examining their impact on
legal arguments, policy changes, and public perceptions. Comparative studies
with other capital punishment studies could provide a broader perspective on
methodological rigor. Investigating public understanding and ethical
considerations in capital punishment research would enrich the discourse
surrounding this sensitive issue.[5]
Soumya Chopra, 2022:
Soumya Chopra's 2022 analysis explores the
ethical, practical, and legal implications of maintaining the death penalty
during the COVID-19 pandemic. The pandemic raised concerns about inmates'
rights, including their right to health and life, in overcrowded correctional
facilities. Legal systems struggled to balance justice and public health,
leading to delays in executions and debates over resumption. Chopra highlights the
complexities of this situation, acknowledging the need to uphold justice while
considering vulnerable conditions in prisons. The pandemic also compromised
court proceedings and access to legal representation, jeopardizing the fairness
of trials and overall integrity of capital punishment cases. These
circumstances underscored the potential for irreversible errors in death
penalty cases and reinforced arguments against its use. Public sentiment,
influenced by the crisis, leaned towards reconsidering punitive measures,
fostering discussions on restorative justice and alternatives to capital
punishment. Chopra's analysis concludes by addressing the broader implications
of the death penalty's reconsideration during the pandemic, emphasizing the
need for adaptable legal systems and international cooperation. there are
potential research gaps that could further explore this complex issue. One area
for further investigation could be the impact of the pandemic on the mental
health of inmates facing death sentences, considering the heightened isolation
and uncertainty they experienced. Additionally, a comparative study across
countries that maintained or suspended the death penalty during the pandemic
could reveal varying approaches and their respective outcomes. Moreover, a
deeper examination of public attitudes towards the death penalty in the
post-pandemic era could shed light on potential shifts in sentiment and their
implications for policy changes.[6]
Autri Saha and Pritika Rai Advani, 2009:
In 2009, Autri Saha and Pritika Rai Advani
presented a comprehensive legal analysis challenging prevailing assumptions
about capital punishment, focusing on the Santosh Bariyar case within the
Indian legal system. The authors argue that this case raises significant
questions about the justness and reliability of capital punishment, exposing
the potential for miscarriages of justice and highlighting the need for
safeguards. They also examine evolving international human rights standards,
emphasizing the Bariyar case's global significance. The authors address ethical
considerations, particularly in situations of doubt or systemic biases
affecting trial outcomes. Saha and Advani advocate for a reevaluation of the
death penalty's role, emphasizing the importance of fairness, efficacy, and
ethics. They propose exploring alternative forms of punishment that uphold
human rights and address societal concerns. Autri Saha and Pritika Rai Advani's
analysis provides a valuable critique of the death penalty in India,
particularly in light of the Santosh Bariyar case. However, further research
could explore the potential for reform within the existing death penalty
system, focusing on practical measures to enhance its fairness, reliability,
and consistency with human rights standards. This could include examining the
effectiveness of proposed safeguards, such as stricter criteria for applying
the death penalty and enhanced legal representation for defendants.
Additionally, investigating the feasibility of implementing alternative forms
of punishment that effectively address societal concerns while upholding human
rights would provide valuable insights into potential pathways toward
abolition.[7]
Jyoti Rattan, 2013:
In 2013, the death penalty remained a
contentious issue globally and in India. Internationally, discussions revolved
around the ethics and effectiveness of capital punishment, with growing support
for its abolition. In India, a nuanced approach was taken, retaining the death
penalty for the "rarest of the rare" cases. However, concerns about
inconsistent sentencing, effectiveness as a deterrent, potential errors in the
justice system, and the impact of lengthy legal processes on individuals
emerged as key issues. The year 2013 marked a pivotal moment in the ongoing
discourse on the death penalty within the international and Indian criminal
justice systems. Global conversations centered on the abolition of the death
penalty, while India grappled with maintaining a careful balance between
punishment, deterrence, and the potential for miscarriages of justice. Ethical,
moral, and practical considerations continued to be subjects of intense
scrutiny and discussion. While the 2013 overview provides a comprehensive
summary of the death penalty's contentious nature and the nuanced approach
taken in India, further research could delve into the specific factors
influencing the retention of the death penalty in India despite the growing
global movement towards abolition. This could involve analyzing the role of
public opinion, political considerations, and the interpretation of societal
concerns within the Indian legal context. Additionally, investigating the
potential impact of recent Supreme Court rulings on the death penalty, such as
the 2018 Bachan Singh guidelines, could provide insights into evolving legal
perspectives and potential shifts in the application of capital punishment.[8]
Siddiqui Saima Jarrar Alam, 2013:
Siddiqui Saima Jarrar Alam's 2013 analysis
explored pragmatic measures to end the death penalty in India. The study
discussed arguments against the death penalty, emphasizing the potential for
wrongful convictions and moral concerns. It proposed a phased approach to
abolish capital punishment, introducing alternative forms of punishment and
legal reforms to prevent miscarriages of justice. Alam stressed the importance
of raising awareness and shifting public opinion while aligning with
international human rights standards. The analysis considered cultural and
societal factors influencing public perception and called for a more humane justice
system. Siddiqui Saima Jarrar Alam's analysis provides a valuable framework for
ending the death penalty in India, outlining a phased approach and emphasizing
the need for public awareness and legal reforms. However, further research
could explore the specific challenges and potential obstacles to implementing
this phased approach, considering the complexities of the Indian legal system
and societal attitudes towards capital punishment. This could involve analyzing
the feasibility of proposed alternative forms of punishment, identifying
potential resistance from stakeholders, and developing strategies to address
cultural and societal factors that influence public perception. Additionally,
investigating the role of non-governmental organizations and advocacy groups in
promoting abolition could provide valuable insights into effective strategies
for social change.[9]
Abhishek K. Singh, 2016:
Abhishek K. Singh's 2016 article provides a
comprehensive examination of death penalty sentencing in India. It traces the
historical roots of the death penalty in India and highlights the lack of
clarity and consistency in defining the "rarest of rare" criterion,
leading to subjective interpretations and arbitrary sentencing. Singh discusses
the impact of public opinion and political considerations on death penalty
judgments and the socioeconomic dimensions of sentencing disparities. The
article also scrutinizes the role of the Indian Supreme Court and advocates for
a standardized approach to ensure fairness and transparency in capital
punishment. Singh concludes by calling for a comprehensive reevaluation of the
death penalty in India and a well-informed national discourse to guide reforms
and judicial decisions. Abhishek K. Singh's 2016 article provides a valuable
overview of the death penalty sentencing process in India, highlighting the
challenges of defining the "rarest of rare" criterion and ensuring
fairness and transparency in capital punishment judgments. However, further
research could focus on developing a more objective and standardized approach
to defining and applying the "rarest of rare" criterion. This could
involve analyzing the sentencing patterns of different courts in India and
identifying common factors that contribute to inconsistencies in death penalty decisions.
Additionally, investigating the potential for incorporating mitigating factors
and proportionality principles into the sentencing guidelines for capital
punishment could provide a more nuanced framework for applying the death
penalty.[10]
RESEARCH HYPOTHESIS
Death penalty even though awarded
only in the rarest of the rare cases still violates the culprits right to life
under article 21
RESEARCH METHODOLOGY
The research methodology that had
been used in this paper is doctrinal research methodology because of the
following reasons from all the primary sources
1. assaying Legal Principles The doctrinal
exploration methodology is well- suited for assaying and interpreting legal
principles, similar as indigenous vittles, bills, and judicial precedents. In
the case of the death penalty, it's essential to examine the applicable vittles
of the Constitution of India, felonious laws, and Supreme Court judgments that have
shaped the legal frame girding capital discipline.
2. Interpreting Court opinions Death
penalty cases frequently involve complex legal arguments and bear thorough
understanding of the principles laid down by the courts. Doctrinal exploration
allows for a good analysis of judicial opinions, including the logic behind the
court's interpretation of indigenous vittles, mollifying factors, principles of
proportionality, and the essential quality of mercy.
3. Legal Analysis and conflation the
doctrinal exploration methodology involves assaying and synthesizing legal
accoutrements, including primary and secondary sources. It enables the
experimenter to examine different perspectives, arguments, and legal logic on
the death penalty, both within India and internationally. This approach ensures
a comprehensive review of applicable legal literature to support the
exploration thesis.
4. assessing Legal fabrics Doctrinal
exploration allows for an evaluation of the being legal frame girding the death
penalty, including its comity with abecedarian rights and transnational mortal
rights norms. It enables the experimenter to critically assess the
effectiveness, fairness, and proportionality of the death penalty's operation
and indispensable approaches. 5. Contributing to Legal converse by exercising
the doctrinal exploration methodology, the exploration paper can make a
precious donation to the ongoing legal converse on the death penalty. It can
offer perceptivity into the interpretations of indigenous vittles, legal principles,
and the evolving justice girding capital discipline. This can help shape unborn
legal developments and reforms.
DEATH PENALTY
Capital punishment according to the
Black dictionary is defined as the punishment of death.[11]
Capital punishment, commonly known as the death penalty, is the execution of a
person condemned to death after being found guilty of a criminal offence by a
court of law. Extrajudicial executions carried out without due process of law
should be separated from capital punishment.
The terms death sentence and capital
punishment are occasionally used interchangeably. The word "Capital
Punishment" refers to the worst kind of punishment. It is the punishment
to be meted out for the most egregious, severe, and despicable acts against humanity.
While the meaning and scope of such offences differ from nation to country
HYSTORIC BACKGROUND
The meaning of capital punishment has
always remained the same from country to country, state to state, and
generation to generation. The earliest recognized death penalty regulations
were formalized in the Code of King Hammurabi of Babylon in the Eighteenth
Century B.C., which imposed the death sentence for 25 separate offenses[12].
The death penalty was also part of the Hittite Code from the fourteenth century
B.C., the Draconian Code of Athens from the seventh century B.C., which made
death the only punishment for all offenses,
HISTORIC BACKGROUND IN INDIA
the debate about the validity of the
death penalty in Indian laws goes way back to 1931 the debates in British
India's Legislative Assembly reveals that no issue of capital punishment was
raised in the Assembly until 1931, when one of the Members from Bihar, Shri
Gaya Prasad Singh, sought to introduce a Bill to abolish the death penalty for
offences under the Indian Penal Code. However, the proposal was defeated after
the then-Home Minister responded to it. Prior to independence, the Government's
position on death punishment in British India was explicitly expressed twice in
Legislative Assembly debates by then-Home Minister Sir John Thorne. "The
Government does not think it wise to abolish capital punishment for any type of
crime for which that punishment is now provided “After independence, India kept
some British colonial-era legislation, including the CrPC[13]
and the IPC[14]. The
IPC specified six penalties, including death, that might be inflicted under its
statute. Section 367(5) of the CrPC 1898 required courts to record reasons why
the death penalty was not imposed for offenses where the death penalty was an
option: If the accused is convicted of an offense punishable with death and the
court sentences him to any punishment other than death, the court shall state
in its judgment the reason why the sentence of death was not passed. The
Parliament abolished Section 367(5) of the CrPC 1898 in 1955, dramatically
affecting the law. The death sentence was no longer the norm, and judges did
not require extraordinary justifications for not applying it in circumstances
when it was a mandated punishment. In 1973, the Code of Criminal Procedure
('CrPC') was re-enacted, and significant amendments were made, most notably to
Section 354(3): When a conviction is for an offence punishable by death or, in
the alternative, life imprisonment or a number of years, the judgement must
indicate the grounds for the punishment issued, as well as the exceptional
reasons for the death penalty. This was a substantial change from the position
following the 1955 amendment[15]
(when periods of imprisonment and the death sentence were both options in a
court of law). capital case), and a reversal of the position under the 1898
statute (where the death penalty was the standard and any alternative
punishment had to be justified). Judges were now required to establish
extraordinary reasons for imposing the death penalty. Section 235(2)[16],
states: If the accused is convicted, the Judge shall, unless he proceeds in
accordance with the provisions of section 360,[17]
hear the accused on the question of sentence, and then pass sentence on him
according to law, also introduced the possibility of a post-conviction hearing
on sentence, including the death sentence
CONSTITUTIONAL PROVISIONS AND OTHER LAWS RELATED TO DEATH PENALTY
The Indian Penal Code, the Code of
Criminal Procedure, and the Indian Constitution all play a role in the
country's intricate legal structure, which oversees the implementation of the
death sentence. The legal framework has evolved throughout time, including
numerous key opinions by the Supreme Court. India is defining the scope of the
death sentence and how it is implemented. Concerns about the Death Penalty of
it is A Necessary Evil or a Human Rights Violation, the legal framework's
fairness and consistency, as well as the role of the court system in the
application of the death penalty in the passing of a verdict
Here are the laws that include the
death penalty as the method of punishment for the crimes committed as of 2015
CAPITAL OFFENCES IN IPC
|
Sl. No.
|
Section Number
|
Description
|
|
1.
|
Section 121
|
Treason, for waging war against
the Government of India
|
|
2.
|
Section 132
|
Abetment of mutiny actually committed
|
|
3.
|
Section 194
|
Perjury resulting in the
conviction and death of an innocent person
|
|
4.
|
Section 195A
|
Threatening or inducing any person to give false
evidence resulting in the conviction and death of an innocent person
|
|
5.
|
Section 302
|
Murder
|
|
6.
|
Section 305
|
Abetment of a suicide by a minor,
insane person or intoxicated person
|
|
7.
|
Section 307 (2)
|
Attempted murder by a serving life convict
|
|
8.
|
Section 364A
|
Kidnapping for ransom
|
|
9.
|
Section 376A
|
Rape and injury which causes death
or leaves the woman in a persistent vegetative state
|
|
10.
|
Section 376E
|
Certain repeat offenders in the context of rape
|
|
11.
|
Section 396
|
Dacoity with murder
|
CAPITAL OFFENCES IN OTHER LAWS
|
Sl. No.
|
Section Number
|
Description
|
|
1.
|
Sections 34, 37, and 38(1)
|
The Air
Force Act, 1950
|
|
2.
|
Section 3(1)(i)
|
The Andhra
Pradesh Control of Organized Crime
Act, 2001
|
|
3.
|
Section 27(3)
|
The Arms
Act, 1959 (repealed)
|
|
4.
|
Sections 34, 37, and 38(1)
|
The Army
Act, 1950
|
|
5.
|
Sections 21, 24, 25(1)(a), and 55
|
The Assam Rifles Act, 2006
|
|
6.
|
Section 65A(2)
|
The Bombay
Prohibition (Gujarat Amendment) Act, 2009
|
|
7.
|
Sections 14, 17, 18(1)(a), and 46
|
The Border
Security Force Act,
1968
|
|
8.
|
Sections 17 and 49
|
The Coast
Guard Act, 1978
|
|
9.
|
Section 4(1)
|
The Commission of Sati (Prevention) Act, 1987
|
|
10.
|
Section 5
|
The Defence of India Act,
1971
|
|
11.
|
Section 3
|
The Geneva
Conventions Act, 1960
|
|
12.
|
Section 3 (b)
|
The Explosive Substances Act, 1908
|
|
13.
|
Sections 16, 19, 20(1)(a), and 49
|
The Indo-Tibetan Border Police Force
Act, 1992
|
|
14.
|
Section 3(1)(i)
|
The Karnataka Control of Organized Crime Act, 2000
|
|
15.
|
Section 3(1)(i)
|
The Maharashtra Control of Organized Crime Act, 1999
|
|
16.
|
Section 31A(1)
|
The Narcotics Drugs and Psychotropic Substances Act, 1985
|
|
17.
|
Sections 34, 35, 36,
37, 38, 39,
43, 44, 49(2)(a), 56(2),
and 59
|
The Navy
Act, 1957
|
|
18.
|
Section 15(4)
|
The Petroleum and Minerals Pipelines (Acquisition of rights of
user in land) Act,
1962
|
|
19.
|
Sections 16, 19, 20(1)(a), and 49
|
The Sashastra Seema Bal Act,
2007
|
|
20.
|
Section 3(2)(i)
|
The Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act,
1989
|
|
Section 3(1)(i)
|
The Suppression of Unlawful Acts against Safety of Maritime
Navigation and Fixed Platforms on Continental Shelf Act, 2002;
|
|
|
22.
|
Sections 10(b)(i) and Section
16(1)(a)
|
The Unlawful Activities Prevention Act,
1967[18]
|
|
|
||
JUDICIAL HISTORY OF DEATH PENALTY
In India, the death sentence, often
known as capital punishment, has seen substantial legal innovation. The Indian
legal system has witnessed key instances that have affected the use of the
death sentence and established rules for its implementation. This article will
look at the judicial history of the death sentence in India, covering
significant cases and their influence on its use, as well as altering cultural
attitudes towards this difficult topic.
Bachan Singh v. Punjab State (1980):
Bachan Singh v. State of Punjab is a
historic Supreme Court of India decision that established the idea of
"rarest of rare" circumstances for applying the death penalty. The
Court ruled that the death sentence should be reinstated. The Court ruled that
the death sentence should be used only in extreme instances where the
alternative punishment would be plainly insufficient and where society's
collective conscience is seriously outraged. This decision gave lower courts
advice in considering the propriety of the death punishment and emphasized the
requirement for an individualized investigation into each case.
Machhi Singh v. Punjab State
(1983):
The Supreme Court clarified the
principles established in Bachan Singh v. State of Punjab in Machhi Singh v.
State of Punjab. The Court established a list of aggravating and mitigating
elements to be considered in awarding a death sentence. This decision attempted
to increase consistency and uniformity in the implementation of the death
penalty and emphasized the importance of the significance of balancing
aggravating and mitigating circumstances.
Rajendra Prasad v. Uttar Pradesh (1979):
Rajendra Prasad v. State of Uttar
Pradesh is another major case in the growth of the death sentence in India. The
Supreme Court ruled that the judge's sole discretion in establishing the
punishment was insufficient and that the jury system should be used in
instances where the death penalty maybe imposed. However, the jury system was
later abolished in India, and the decision to inflict the death penalty now
lies with the judge after examining all sides' arguments and evidence.[19]
Shatrughan Chauhan v. Union of India:
Shatrughan Chauhan v. Union of India
is a noteworthy case that addressed the significance of balancing aggravating
and mitigating circumstances. India's execution system is both lawful and fair.
In the process of executing death row convicts, the Supreme Court adopted
criteria to promote openness and conformity to constitutional rights. The Court
emphasized that inmates should have access to legal counsel, the ability to
question the legality of their sentence, and the right to make one final
request before being executed. This case highlighted the need to preserve the
dignity and humanity of death row inmates during the execution procedure.[20]
Significant landmark cases have
affected the judicial history of the death sentence in India. From Bachan
Singh's presentation of the idea of "rarest of rare" situations to
rules for identifying aggravating and mitigating factors, these cases have had
an influence on the application and process of the death sentence due to the
circumstances in Machhi Singh and issues of justice and transparency in
Shatrughan Chauhan. As public views and legal perspectives develop, the Indian
legal system must maintain a fair and balanced approach while assessing the
implementation of the death sentence.
INTERNATIONAL CONVENTIONS, HUMAN RIGHTS AND DEATH PENALTY
The International Covenant on Civil
and Political Rights[21]
is a major treaty in international human rights law that discusses the
application of the death sentence. The ICCPR does not outright prohibit the use
of the death sentence, but Article 6 does. protects the right to life and
offers critical protections to be implemented Signatories who support the death
penalty are next
The Second Optional Protocol to the
ICCPR, aiming to abolish the death penalty is the only treaty specifically
concerned with its abolition. is accessible to signatures from every country on
the planet. It went into effect in 1991. includes 81 signatures and 3 state
parties, India, expressly bans the use of the death sentence on people under
the age of 18. age of 18. The CRC13 had been ratified by 195 nations as of July
2015.
The Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment ('the Torture Convention')
and the UN Committee Against Torture have both been established. been sources
of jurisprudence for death penalty restrictions as well as precautions are
required. The imposition of torture is not considered under the Torture
Convention. The death penalty is a kind of torture or cruel, barbaric, or
humiliating treatment or punishment disciplinary action ('CIDT'). However,
various execution strategies and the phenomena of The UN consider death row to
be a type of CIDT. Article 37(a) of the Convention on the Rights of the Child
is similar to the ICCPR. ('CRC') expressly bans the use of the death sentence
on people under the age of 18. The CRC13 had been ratified by 195 nations as of
July 2015.
The Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment ('the Torture
Convention') and the UN Committee Against Torture have both been established.
been sources of jurisprudence for death penalty restrictions as well as
precautions are required. The imposition of torture is not considered under the
Torture Convention. The death penalty is a kind of torture or cruel, barbaric,
or humiliating treatment or punishment disciplinary action ('CIDT'). However, various
execution strategies and the phenomena of The UN consider death row to be a
type of CIDT.bodies the death sentence was a permissible option in the
formation of international criminal law. The Nuremberg and Tokyo tribunals,
both of which were formed, imposed penalties. Following World War II. However,
international criminal tribunals have since ruled that the death penalty is a
legal punishment
The ICCPR and the CRC are the only two
treaties that India has ratified. The country has signed the Torture Convention
but has not ratified it. Treaties are governed by international law. Once a
state has ratified a treaty, its obligations become legally obligatory. Even
where a pact has been signed If a treaty is signed but not ratified, the state
is obligated to "refrain from acts that would defeat the treaty."
treaty's goal and purpose"
DEATH PENALTY VS RIGHT TO LIFE
The death penalty is an extreme act
in nature, the reason an offender is given punishment is to do justice to the
victim and to let others know that if they ever do the same offense they are
going to be facing the same kind of punishment and the second biggest reason is
the person who ever had committed the offense will learn from his mistake and
will not repeat the same mistake and will choose the way of retribution but
death penalty does not leave any kind of scope for the retribution of the said
criminal
Another very big problem that is
associated with the death penalty is the very thin line between punishment and
brutality, and sometimes death penalty can be used in oppressive ways by
punishing the innocent, and if done so there will be no scope for getting the
lost person back. Even though the Supreme Court had held that the death penalty
will only be awarded in the rarest of the rare cases, the court not defining
the criteria for a case to come under the ambit of the arrest of the rare will
definitely be rising inconsistencies in the upcoming future. Also awarding the
death penalty to some not to others for the same crime will be considered outrageous
and will make the public eventually lose faith in the judiciary.
Even though some people suggest that
when the crime is very heinous in nature and there is no other punishment other
than the death penalty that can be sufficed with the cruelty there are no
recording proofs and supporting statistics that can be used to support this
argument
USAGE OF ALTERNATE PUNISHMENT
As a result of challenges raised in
death cases in recent years, the Supreme Court has cemented the punishment of
"full life" or a life sentence of a certain number of years. The
Supreme Court, in a three-judge bench ruling in the Swamy Shraddhanand case[22],
provided the groundwork for this developing criminal alternative of giving the
punishment of imprisonment for life instead of the death penalty. The
observations in the Swamy Shraddhanand case were followed by the Court in a
number of cases, including Haru Ghosh v. State of West Bengal[23],
State of Uttar Pradesh v. Sanjay Kumar[24],
Sebastian v. State of Kerala[25],
and Gurvail Singh v. State of Punjab[26],
where full life or a sentence of a certain number of years was awarded instead
of the death penalty
POWERS OF CLEMENCY
If the Supreme Court rejects an
appeal against the capital penalty, a convicted prisoner may petition the
President of India and the Governor of the State for compassion. The President
and Governors have the authority under Articles 72 [27]and
161 [28]to
"grant pardons, reprieves, respites, or remissions of punishment, or to
suspend, remit, or commute the sentence of any person convicted of any
offense." These are not personal powers of the holders of the Office but
are to be exercised (under Articles 74 and 163, respectively) with the
assistance and advice of the Council of Ministers. While clemency powers can be
used for a variety of reasons and at a variety of times, they also serve as the
last protection. against the danger of judicial mistake or miscarriage of
justice. This places a heavy burden on those who wield this power and
necessitates a full application of mind, scrutiny of judicial records, and
wide-ranging inquiries in adjudicating a clemency petition, particularly one
from a prisoner facing execution under a judicially confirmed death sentence. 9
The Government of India's Ministry of Home Affairs has established the "Procedure
Regarding Petitions for Mercy in Death Sentence Cases" to help state
governments and prison officials in dealing with mercy applications made by
death sentence prisoners.
JUDICIAL REVIEW OF MERCY POWERS EXERCISE
In the Shatrughan Chauhan case, the
Supreme Court said that the Home Ministry considers the following
considerations when evaluating mercy petitions:
a) The accused's personality (such as age,
gender, or mental weakness) or the facts of the case (such as provocation or
equivalent reasoning);
b) Cases in which the appellate Court
expressed skepticism about the credibility of the evidence but upheld the
conviction;
c) Cases in which it is claimed that new
information is available, primarily to determine whether a new investigation is
warranted;
d) Where the High Court revoked an
acquittal or increased the sentence on appeal;
e) Is there any disagreement among
the High Court Judges that requires a hearing of a higher Bench;
f) Evidence consideration in
determining blame in a gang murder case;
h) Prolonged inquiry and trial
delays, etc. When the actual performance of the Ministry of Home Affairs (on
whose recommendations mercy petitions are considered) is examined, however,
It has been observed that these
recommendations are not always followed. Writ Courts have questioned the way in
which the Executive has treated mercy pleas in a number of situations. In
reality, as part of the Shatrughan Chauhan case, the Supreme Court considered
11 writ petitions last year contesting the Executive Supreme Court's denial of
the mercy appeal. According to the Law Commission of India, Report No.262 on
the Death Penalty, August 2015
CONCLUSION
To summarize, the death penalty
remains a problematic subject due to its harsh character and attendant ethical
quandaries. Advocates say that it contributes to justice by offering closure to
victims and serving as a deterrence to horrible acts. The notion is that the
harshness of the penalty sends a strong message to potential offenders,
discouraging them from committing similar crimes in the future. This theory,
however, lacks empirical backing, with no clear data establishing a consistent
deterrent impact.
Furthermore, the death sentence
raises questions regarding the possibility of injustice. When contemplating the
permanent nature of death as a penalty, the fine line between punishment and
cruelty becomes increasingly clear. Wrongful convictions, a dismal reality of
judicial systems across the world, highlight the dangers of killing innocent
people. The absence of precise criteria for establishing "the rarest of
the rare cases" adds to these problems, allowing for variations in its
implementation.
The legitimacy of the legal system is
jeopardized, since the arbitrary use of the death penalty may undermine public
faith. Without well stated criteria, there is a possibility of subjective
interpretations, resulting in discrepancies in sentence for those who commit
identical offences. Such contradictions might be interpreted as a violation of
the legal principles of fairness and equal justice, weakening public trust in
the judicial system.
While some believe that certain acts
are so horrific that no punishment other than death is adequate, the lack of
specific evidence supporting this argument necessitates a reconsideration of
the ethical, legal, and societal implications. sociocultural ramifications of
the death sentence. As nations cope with these issues, a balanced discourse
must address the underlying values that support the judicial system and assess
the possible implications on people, society, and the legal system's integrity.
[1]
Article 21 of Indian constitution-Right to life
[2]
Bachan Singh v. State of Punjab (1982) 3 SCC 24, 1983 1 SCR 145
[3]
Machhi Singh v. State of Punjab 1983 AIR 957, 1983 SCR (3) 413
[4]
Santosh Kumar Bariyar v. State of Maharashtra ca no. 1478 of 2005 with ca no.
452 of 2006
[5]
Kunal Ambasta, AN UNCLEAR EMPIRICISM: A REVIEW OF THE DEATH PENALTY INDIA
REPORT, (August 21st, 2023, 10:00AM), www.scconline.com
[6]
Soumya Chopra, REVISITING THE DEATH PENALTY IN COVID TIMES, (August 21st, 2023,
10:30AM), www.scconline.com.
[7]
Autri Saha and Pritika Rai Advani, THE DEATH PENALTY: A NEW PERSPECTIVE IN
LIGHT OF SANTOSH BARIYAR CASE, (August 21st, 2023, 11:30AM), www.scconline.com.
[8]
Jyoti Rattan, DEATH PENALTY UNDER CRIMINAL JUSTICE SYSTEM: INTERNATIONAL AND
NATIONAL SCENARIO WITH SPECIAL REFERENCE TO INDIA, (August 21st, 2023,
12:30PM), www.scconline.com.
[9]
Siddiqui Saima Jarrar Alam, ANALYSIS OF PRAGMATIC MEASURES TO END DEATH PENALTY
IN INDIA, (August 21st, 2023, 1:30PM), www.scconline.com.
[10]
Abhishek K. Singh, THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA:
A CRITICAL ANALYSIS, (August 21st, 2023, 2:30PM), www.scconline.com
[11]
Henry Campbell Black, M.A, Black’s law dictionary (4th edn, West
publishing co, 1968)
[12]
Death penalty information Centre(penaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty)
[13]
Code of Criminal Procedure 1898
[14]
Indian Penal Code 1860
[15]
The 4TH amendment act, 1955
[16]
Sec 235(2) of IPC 1860
[17]
Sec 360 of IPC 1860
[18]
The Indian law commission, report number 262 on death penalty, aug 2015
[21] The
International Covenant on Civil and Political Rights 1976 (ICCPR)
[22] Swamy Shraddananda@murali vs state of Karnataka ca no.454 of 2006
[23] Haru Ghosh v. state of west Bengal ca no. 1173_of 2008
[24] State of Uttar Pradesh v. Sanjay Kumar slp (crl.) no.6467/2012(crl.m.p.no. 17082/2012)
[25] Sebastian v. state of Kerala crl.mc.no. 6675 of 2015
[27]
Article 72 of the Indian constitution
[28]
Article 161 of the Indian constitution
Article Information
DEATH PENALTY: A CRITICAL ANALYSIS BY: NANDAMURI VENKAT CHOWDARY & KHUSHBOO MALIK
Authors: NANDAMURI VENKAT CHOWDARY, KHUSHBOO MALIK
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/20
- Issue 7
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International Journal for Legal Research and Analysis
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