Abolition of the Death Penalty: A Tough Road ahead for India

The movement against the death penalty in present-day India faces a tremendous challenge in terms of extensive public clamour for swift executions, removal of appeals, and even support for summary executions. 
With the imminent execution of the four convicts in the Delhi gang rape and murder case against the background of reactions to incidents in Hyderabad, Kathua and Unnao, harsher punishments are receiving tremendous public support, and politicians are only happy to oblige. The Supreme Court has issued administrative orders (1) to hear death sentence cases faster amidst misplaced concerns in the public that death row prisoners have too many loopholes in the law to exploit.
Framing the death penalty as a political–legal issue in India is not easy. Located within the wider spectrum of social and state violence in India, the exceptional nature of the cruelty of the death penalty is difficult to establish. 
The suffering inflicted by the death penalty is the constant and daily uncerta…

India | Capital punishment: A bitter trade-off between citizens, State

"The most basic and profound argument against death penalty is that the State can’t give life so it can’t take it away either."

The execution of Nirbhaya’s killers has once again triggered a debate on death penalty in India with the United Nations calling on all nations to put a moratorium on it. More than seven years after the 23-year-old paramedical student was brutally raped and murdered, the 4 convicts — Mukesh Singh (32), Pawan Gupta (25), Vinay Sharma (26) and Akshay Kumar Singh (31) — were hanged to death on Friday at 5.30 am at Tihar Jail in the Capital.

The execution deviates from the unwritten understanding between the Executive and the Judiciary in India that only terror convicts would be sent to the gallows. There had not been any execution in India for a non-terror capital crime since August 14, 2004, when Dhananjoy Chatterjee was hanged in Kolkata for the rape and murder of a minor girl. Ajmal Kasab’s execution (2012) for 26/11 Mumbai terror attacks in 2008, Afzal Guru’s hanging (2013) for the 2001 Parliament attack and Yakub Memon’s execution (2015) for the 2003 serial bomb blasts in Mumbai — all fell in the category of terror crimes.

In many serious non-terror cases, such as Graham Staines, Jessica Lall and Priyadarshini Mattoo murders, the Supreme Court refused to award death penalty on the ground that these did not fall within the category of “rarest of rare” — a doctrine propounded by the top court in Bachan Singh’s case (1980) drawing from rationale behind Section 354(3) of the Criminal Procedure Code (CrPC) that requires a judge to record special reasons for awarding death sentence.

There is no statutory definition of ‘rarest of rare’ and it depends upon facts and circumstances of a particular case. Brutality of the crime, conduct of the offender, previous history of his involvement in crime, chances of reforming and integrating him into society are taken into account.

The most basic and profound argument against death penalty is that the State can’t give life so it can’t take it away either. The death penalty is irreversible and if a convict turns out to be innocent, his execution cannot be undone. Second, in a modern liberal democracy, punishment must not be retributive and the State should try to rehabilitate the criminal to enable him to live in society with other human beings.

Third, in the US and other nations, which execute convicts for capital crimes, serious crimes have not diminished. The abolitionist idea is based on the commandment “thou shalt not kill”, which also seeks to enjoin the State to refrain from killing.

Punishment is the most natural response to crime. The quantum punishment awarded to offenders must be commensurate with the nature and gravity of crime so as to deter criminals from disturbing peaceful citizens and challenging the authority of the State which is duty-bound to protect the life, liberty and property of citizens.

Keeping this basic rationale in mind, law prescribes capital punishment for murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government and abetting mutiny by a member of the armed forces, terror crimes. The Protection of Children from Sexual Offences (Amendment) Act, 2019, also provides for death penalty for aggravated sexual assault.

But more than the statutory provisions, the Indian Constitution itself justifies death penalty. Article 21 says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Often described as a provision which “embodies a constitutional value of supreme importance in a democratic society”, Article 21 can convey a completely different meaning. If we flip it, Article 21 simply means the State can deprive any person of his right to life or personal liberty in accordance with procedure established by law. Even the caveat added to it by the Supreme Court in Maneka Gandhi’s case (1978) only requires the procedure to be fair, just and reasonable; and doesn’t take away the State’s right to deprive a person of his right to life and personal liberty.

It’s a bitter trade-off between citizens and the State where the former have ceded too much ground to the latter in lieu of the protection offered. Abolishing death penalty requires altering this basic understanding between the two sides. With India facing grave security challenges both on the internal and external fronts in terms of left-wing extremism, insurgency and cross-border terrorism, it appears difficult to change the dynamics of this relationship. Death penalty is here to stay.

Source: tribuneindia.com, Staff, March 23, 2020

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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