19th December 2019 : The Hindu Editorials Notes : Mains Sure Shot for UPSC IAS Exam

Question – What is capital punishment? Should it be abolished?(250 words)

Context – In the context of the Nirbhaya Case.

What is capital punishment?

Capital Punishment is also known as a death penalty, execution of an offender sentenced to death after conviction of a criminal offence by a court of law. Indian Criminal justice system is one of the important parts of capital punishment.

Analysis:

Capital punishment has long been a topic of debate on two grounds – morality and its effect on deterrence i.e. its effect on criminal behaviour.
Contemporary arguments for and against capital punishment fall under three general headings: moral, utilitarian, and practical.

Arguments based on moral grounds:

Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life. Furthermore, they believe, capital punishment is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
On the other hand opponents of capital punishment, like Cesare Beccaria in book ‘On Crimes and Punishments’ [1764], argue that, by legitimizing the very behaviour that the law seeks to repress—killing—capital punishment is counterproductive in the moral message it conveys.
Moreover, when it is used for lesser crimes, capital punishment is immoral because it is wholly disproportionate to the harm done. Abolitionists also claim that capital punishment violates the condemned person’s right to life and is fundamentally inhuman and degrading.

Arguments based on utilitarian grounds:

The utilitarian supporters of capital punishment also claim that it has a uniquely potent deterrent effect on potentially violent offenders for whom the threat of imprisonment is not a sufficient restraint.
Opponents, however, point to research that generally has demonstrated that the death penalty is not a more effective deterrent than the alternative sanction of life or long-term imprisonment.

Arguments based on practical grounds:

For:

The supporters of capital punishment argue that the reason for capital punishment not acting as a deterrent is the problems and delays in granting and implementing capital punishment. If the capital punishments are executed without much delay they could act as a deterrent.
SC has put in safeguards to make sure that death penalty is not arbitrarily imposed.
India is affected by terrorism and needs strong mechanism for punishing the criminals while simultaneously trying to prevent it.
It shows that certain crimes will not be tolerated in the society, and,
It is not arbitrary as it goes through a judicial process.

Against:

Judge centric variations affect uniform application of law.
Law Commission (2015) observed that the constitutional regulation of death penalty (Bachan Singh Case) has failed to prevent death sentences from being arbitrarily imposed.
Judges apply different standards to judge review petition.
Disposal of mercy petitions are also based on the personal belief of individual presidents.
Trails courts have a greater tendency to award death penalty.
It is medieval and against progressive human rights.
Influenced by public opinion.
There is also inefficiency at times in investigations.
Social bias – unfairly targets the poor and marginalised.
Delays in criminal justice system.
Has not been effective in deterring crime.
No scope for reformation.
Finally, they argue that, because the appeals process for death sentences is protracted, those condemned to death are often cruelly forced to endure long periods of uncertainty about their fate.
Overall, the death penalty is impossible to administer fairly or rationally. Executions occurred in 5.2 cases for every 1 lakh murders. It depends overwhelmingly on the adjudicator’s personal beliefs. Judges opposed to it never gave a death sentence; those in favour doled it out. Abolitionist Presidents (S. Radhakrishnan and A.P. J. Abdul Kalam) refused to reject mercy petitions, while others, differently inclined, readily denied clemency. Should the killing of a human being depend on the philosophy of a particular individual?

Death penalty in India:

After the 35th Law Commission report was published in the year 1967, the Criminal Procedure Court was amended directing the courts to furnish special reasons while pronouncing capital punishment.
Further the 35th Law Commission report had said that “having regard, however, to the conditions in India, to the variety of social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population, and to the paramount need for maintaining law and order in the country at present juncture, India cannot risk the experiment of abolition of capital punishment”.
Then in 1980, in the landmark Bachan Singh Case, the court observed that death sentence may be awarded in the “rarest of rare cases in which the alternative sentence of life is unquestionably foreclosed”.
In the Nirbhaya case certain amendments were made to the IPC. now death penalty could be awarded to certain category of rapes and repeat offenders.
In 2016, the Anti-Hijacking Act was passed. It amended the Anti-Hijacking Act of 1982. An important feature of the Act was that it suggested capital punishment if hijacking leads to death of a passenger or a crew member.
Also in 2018, the POCSO Act was amended awarding death penalty for rape and gangrape of children below 12 years of age.

Conclusion:

It is difficult to explicitly support of reject the capital punishment in India because both sides of the argument bear weight.
However the 262nd Law Commission report 2015 recommended that that the country move toward abolishing the death penalty, except in terrorism cases to safeguard national security.

Way ahead:

This is a shift from the Law Commission report of 1967, which had concluded that India couldn’t risk the “experiment of abolition of capital punishment.”
So the definitions and punishments of crime change with the passage of time. We should give it some more time before a concrete for or against abolition can be concluded.