Sansad TV Perspective: Death Penalty

In the series Sansad TV Perspective, we bring you an analysis of the discussion featured on the insightful programme ‘Perspective’ on Sansad TV, on various important topics affecting India and also the world. This analysis will help you immensely for the IAS exam, especially the mains exam, where a well-rounded understanding of topics is a prerequisite for writing answers that fetch good marks.

In this article, we feature the discussion on the topic: Death Penalty

Anchor: Vishal Dahiya

Participants: 

1. Sanjay Chadha, Senior Advocate, Supreme Court
2. Suresh Chandra, Former Law Secretary, GoI
3. Ashok Bagariya, Legal Editor, TV9

Context: The Supreme Court ruled that the records of the convict before and after the commencement of crime must be considered in order to produce mitigating grounds to prevent the imposition of capital punishment. 

What is meant by the death penalty?

• The death penalty is also referred to as capital punishment. 
• Capital punishment involves the process of sentencing convicted offenders to death for the most serious crimes and carrying out that sentence. 
• A crime’s eligibility for the death sentence is determined by specific offences and circumstances and is defined in the statute book. 

Death Sentence: To what extent is it valid?

• The subject of the death sentence has invited several debates on its efficacy or constitutionality. 
• The central issue that is often ignored is that it grants the state to execute a monopoly of violence. 
• This monopoly is backed by calling it a preventive measure to mitigate crime.
• In reality, it is witnessed that the death sentence for the ‘rarest of the rare’ crimes is the highest measure of retributive justice in criminal law which is entirely based on discretion.  

Read more about theories of punishment in CNA dated Dec 19, 2019

• The concept of ‘Rarest of the Rare’ cases is accompanied by an ambiguity allowing the courts to use public sentiments as a judicially reliable standard in handing out the death sentence. 
• The critics’ argument against capital punishment is majorly backed by the fact that it violates the Right to Life and Personal Liberty of the individuals guaranteed by Article 21 of the Constitution. 

Read about the arguments related to capital punishment in CNA dated March 3, 2022.

 Implications of the Judgement:

• The verdict of the apex court puts the responsibility to ascertain the ‘reformative’ qualities of a convict on the court. 
• It limits the possibility of imposition of the death penalty which was awarded only in the “rarest of the rare” cases as ruled by the Supreme Court in 1980. 
• It expands the ambit of concerns that the death penalty is imposed only on the basis of crime factors while overlooking the accused. 
• There have been major questions raised on the constitutionality of the death penalty and its execution.
• The expression “rarest of the rare” cases lacks clarity and is not well-defined. 

The Law Commission recommendation:

• The Law Commission of India had suggested the abolition of capital punishment for all crimes except for offences related to terrorism and waging war against the country.

Rarest of the Rare Cases:

• In Machhi Singh vs the State of Punjab, the supreme court propounded two tests to be performed to identify the ‘Rarest of the Rare’ cases. 
  • It was ruled that capital punishment should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. 
  • Test 1: The uncommon feature of the crime to which, if life imprisonment is sentenced, it will be a travesty of justice. 
  • Test 2: The circumstances in the crime that considers life imprisonment to be inadequate even after the maximum weightage is given to the mitigating circumstances that speak in favour of the accused. 
  • The supreme court ruled that there shall be a balance between aggravating circumstances and mitigating circumstances.

Methods of Death Penalty in India:

• Hanging and shooting are the two methods of the death penalty in India. 
• Hanging is the method of execution in the civilian court system according to the Criminal Procedure Code. 
• The Army Act 1950 lists both hanging and shooting as official methods of execution in the military court-martial system. 
• It was reported in a study by the National Law University Delhi, that 755 people have been hanged in independent India. 

Crimes where Capital Punishment is awarded:

• These crimes include:
  • Aggravated murder
  • Offences resulting in the death of the victim
  • Terrorism related crimes
  • Espionage
  • Military offences 

Legal Provisions:

IPC Section 302: Whoever commits murder shall be punished with death or life imprisonment and shall also be liable to a fine. 

Image source: www.legalservicesindia.com

Judicial interventions:

• The supreme court in a strong move, in response to the case of Vishakha vs the State of Rajasthan, issued guidelines by adding new categories of offences that are regarded as violence against women and minor girls. These guidelines became famous as Vishakha Guidelines which formed the basis of the law popularly referred to as the Protection of Women from Sexual Harassment (POSH) Act 2013.
• In the case of Mithu vs the State of Punjab, the Supreme Court ruled that the mandatory death penalty for the listed crimes for which capital punishment shall be awarded is unconstitutional. 
• The apex court had also held that mental illness is a “mitigating factor” sparing those with such disorders from the gallows. 

Get a precise understanding of Capital Punishment by following the link.

Can capital punishment be awarded to pregnant women?

• Section 416 of the CrPC states that if a woman sentenced to death is found to be pregnant then the High Court shall order the postponement of the execution and may, if it thinks fit, commute the sentence to life imprisonment. 

Countries that have abolished the death penalty for all crimes: Denmark, Portugal, Luxembourg, Nicaragua, Norway, France, Netherlands, Australia, Italy, Bhutan, Turkey and so on. 

Ways Ahead:

• The new rules put forth by the Supreme Court are a reflection of the transition of the principles of jurisprudence from retributive to reformative.
• This forms a substantial basis to emphasise the records of the convict which were missing in the existing provisions for executing capital punishment. 
• The new rules offer a check on the trial courts and prevent them from handing down death penalties as a rule.
• It is suggested by the experts that the mitigating circumstances shall be considered at the trial stage. 
• Therefore, death penalties shall be awarded to a convict as an exception on the grounds of constitutional validity.

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