Context: The Aparajita bill introduced by the West Bengal Government seeks to amend the Bhartiya Nyaya Samhita, Bhartiya Nagrik Suraksha Samhita and POCSO Act in their application to West Bengal, this has reignited the debate around Capital Punishment.
Meaning of Capital Punishment:
- Capital punishment, also called death penalty, results in execution of an offender sentenced to death after conviction by a court of law for a criminal offence.
- The term “Capital Punishment” stands for most severe form of punishment. It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.
Death Penalty in India and its Legal Validity
- The death penalty is a legal punishment for certain serious offenses under the Indian Penal Code, the newly introduced Bhartiya Nyaya Samhita has expanded its scope by increasing the number of offences punishable by death from 12 to 18. However, it is imposed only in the most severe cases.
- The decision to impose the death penalty is made by a judge after considering the nature and severity of the crime and any aggravating or mitigating factors.
- The death penalty is only given in cases where the judge considers the crime to be of such a nature that it warrants the most severe punishment possible.
Death Penalty in Confirmation to Article 21
- Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Indian Penal Code under Section 302/ BNS 103 provides reason for death penalty and Criminal Procedure Code establishes the process of awarding death penalty.
- Thus, awarding death penalty or capital punishment cannot be said to be against the principles of Article 21 of the Indian Constitution.
Furthermore,
In Bachan Singh v. State of Punjab, 1980
- Hanging is done in India in the rarest of rare cases as per the Criminal Procedure Code.
- S.C. held that the death penalty given to a convict is constitutional and will be done in rarest of rare cases.
- The Court said that death penalty is a lawful infliction of death by the state as a punishment for wrongful and heinous committed by the accused.
- The Court said that capital punishment is not against Right to life and personal liberty as guaranteed under Article 21 because death penalty through capital punishment has been established under law (Section 366 of Code of Criminal Procedure) and is a legal process.
- Thus, State is empowered to take away life of citizens through procedure established by law if they are found guilty of crime committed which is punishable with death penalty and is a rarest of rare cases.
Other arguments in favor of Death Penalty:
- It is based on deterrent theory of punishment: and instils fear of punishment including death among wrong doers.
- Morally Wrong: Keeping an accused of heinous crimes alive at the cost of the lives of number of citizens or potential victims in the society is morally wrong.
- Article 21: Death Penalty in India in accordance with Article 21 and is also used in Rarest of the Rare Cases.
- Death Penalty allows for Right to Appeal: Indian laws and the constitution allow for appeal against the decision of High Court and even Supreme Court. Article 72(c) allows the convict to appeal against the decision of Supreme Court to the President of India if death sentence has been awarded.
However, there are equally valid arguments against the Death penalty:
- Retribution by State: It ensures retributive justice by the state which deprives a person of his/her life based on the retributive theory of punishment. It is generally argued that retribution even by state is immoral and is a sanitized form of vengeance.
- Person suffering from Mental Illness: The United Nations Commission on Human Rights calls upon countries “not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person.
- It does not help in reducing or deterring heinous crime.
- Time Gap: Generally there is a large gap between awarding of death penalty between awarding of death penalty and execution. This keeps offenders waiting on death row
- Globally, 114 Countries have abolished Death penalty in law and practice.
- Psychological agony of the prisoners: Since it takes a lot of time to execute the death penalties, death row prisoners go through various physical, psychological, and mental health issues.
- Marginalized communities: Three fourth of death row convicts come from marginalized communities with no adequate legal representation and are left to fend for themselves.
- Justice Verma Committee: It has argued that the death sentence does not necessarily act as a deterrent against crimes such as sexual offences, including gang rapes.
Law Commission 262nd Report on Death Penalty: Law Commission has argued for the removal of death penalty from all statutes, the rationale given is;
- Does not Serve as Deterrence: Death penalty is no more a deterrent than life imprisonment, which in India can be for the whole life with limited remissions granted after 30-60 years in many cases of serious crimes.
- Retribution versus Vengeance: Retribution is important in punishment but not synonymous with vengeance. The “eye for an eye” notion has no place in our constitutionally mediated criminal justice system, and capital punishment doesn’t achieve any valid societal goals.
- Restorative & Reformative Justice loses focus on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are forgotten through which accused behaviour can be changed.
- Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime.
- Death Sentence disproportional for Vulnerable Sections: The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.
Way forward
- Addressing Structural issues: Structural issues of redistribution of land and wealth for the marginalized communities, their representation in all spaces and institutions, and a radical shift towards properly funded public education and health care could act as deterrent towards rape.
- Educational and social campaigns: Institutional reforms in form of ‘beta padhao, beti bachao (educate the son, to protect the daughter’) policy initiative to eliminate the patriarchal notion of the honour of the family, community, and nation residing in female bodies and virginity has to be promoted.
- Reforming the Police, prosecution and judiciary: The death penalty is the safest escape route from accountability as it does not burden the state with the hard work of reforming the police, prosecution, judiciary and supporting survivors. A culture of utilizing existing research for an evidence-based informed policymaking by the central and State legislatures needs to be inculcated to avoid knee-jerk populist reactions that lead to criminal injustice.