Current Affairs: Capital Punishment
Hello and welcome to BYJU’s classes. Your one stop destination for civil services examination related news, views and analysis. In this lecture we’ll talk about the most important topic of our times, capital punishment. But why capital punishment? Over the past few years, we’ve seen three executions in this country. In a very recent report, the law commission of India recommended swift abolition of capital punishment in all cases except terrorism related cases, and in those cases which deal with waging war against the state. Now this is one of the landmark recommendations of the law commission of India and if this is recommendation is accepted by the Government of India, India would enter into a league of nations, more than 100 countries in the world which have abolished capital punishment. In this lecture we’ll talk about everything that you need to know regarding capital punishment. And I dare make a claim – this is going to be the most comprehensive analysis on this idea of capital punishment and after going through this lecture, you’ll not be required to read any material whatsoever. So let’s get started, beginning with the importance of this topic. This topic has relevance not only to prelims and mains, but also essay paper, ethics paper and some of you who are going to appear before interview panels, this topic holds immense significance. Let’s look at the contents of this lecture. What all are we going to discuss in this lecture. Which crimes entail capital punishment in India? What is the Supreme Court’s view on the legality and Constitutional validity of the death sentence? Which are these rarest of the rare cases. And then we will end up this discussion on arguments in favor and arguments against capital punishment.
But first up, what is capital punishment? In simple terms, capital punishment means the state taking the life of an individual. The state using its authority, using its power to snatch the life and liberty of an individual. Snatching the life and liberty of an individual who has committed some grave offence. Now which are these offences that entail capital punishment in India? Let’s have a look at those. Under Indian penal court there are some grave offences such as murder, Section 302. Rape with injuries which may result in the death of a victim, and a repeat offender. Waging war against the country. Terrorism related cases. In all these cases, the courts in this country can award capital punishment to an accused. Now when I say the courts can award, I only mean to say that capital punishment is the maximum punishment for these offences. The courts may or may not award capital punishment in these cases. Apart from these there are provisions under the Arms Act, Narcotic Drugs and Psychotropic Substances Act, SC and ST Prevention of Atrocities Act, Army Act, Navy Act, Air Force Act. These contain provisions where capital punishment is one of the offences for some grave offences. Apart from these we have had two acts in the past. Prevention of Terrorist Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA). In both these cases capital punishment was one form of the punishment for some offences. But both these acts have now been repealed. But there exists something called Article 21 on Indian Constitution. The fundamental right given under part 3 of the Indian Constitution. If we look at the text of this Article 21, it states that the state shall not take away the life and liberty of an individual except according to the procedure established by law. Now a number of petitions were filed in the Supreme Court which challenge the Constitutional validity of death sentence. These petitioners argued that death sentence is violative of Article 21, the fundamental right to life provided under Indian Constitution. But the Supreme Court ruled in Jagmohan Singh vs State of UP and Rajendra Prasad vs State of UP, that Article 21 does not get violated because of death sentence. The Supreme Court ruled that there exists a procedure and this procedure is a fair one. It’s because of this procedure that an accused is given utmost time to prove his innocence and it is because of this procedure that state snatches the life and liberty of an individual. Therefore, death sentence is Constitutional in this country. But now looks at another landmark case of the Supreme Court of India, Bachan Singh vs State of Punjab. In this landmark decision the Supreme Court ruled that death sentence can be applied only in the rarest of the rare cases. In this case the Supreme Court ruled that judges will have to give special reasons for sending someone to the gallows. That means death sentence should not be awarded in every single case but be awarded only in the rarest of the rare cases. But which are these rarest of the rare cases? Let’s look at another judgement of the Supreme Court of India. This judgement called Macchi Singh vs State of Punjab. In this case the Supreme Court ruled that capital punishment should be given only when the option of awarding life imprisonment is unquestionably foreclosed. The Supreme Court held that two tests need to be performed to determine which cases fit under this rarest of the rare doctrine. Now which are these two tests? Test number 1 – is there something uncommon about the crime? Is there something uncommon about the crime that if we give life imprisonment to the offender it would be travesty of justice? Test number 1. Test number 2 – are there circumstances in the crime, are there circumstances in the crime which render life imprisonment as inadequate even after the judges’ give maximum weightage to mitigating circumstances which speak in favor of the accused? Confused? Let me try and explain. December 16, 2012. A physiotherapist student was gang-raped in a moving bus. What was so uncommon about this crime? Five men raping a victim. Not only this. This crime was committed in a horrific manner, in a grotesque manner. How? The accused took turns in raping the victim. One of the accused takes an iron rod and inserts this iron rod into the genitals of the victim, thereby rupturing even her intestines. So there was something uncommon about this crime. This crime was committed in a grotesque manner and in this crime if life imprisonment is awarded to the accused, it would be travesty of justice. So these are aggravating circumstances. The Supreme Court ruled that the judges will have to draw a balance sheet between aggravating circumstances and mitigating circumstances. Aggravating circumstances we understood, but which are these mitigating circumstances? Let me give you an example, a hypothetical one. I come from a poor family. My siblings have not eaten for the past 3 or 4 days. I enter into a bakery shop. I ask the owner of this bakery shop a loaf of bread. The owner pushes me against the wall, slaps me and in a fit of rage I took out the knife and killed this owner. This is murder. I have violated the right to life of this owner. I have committed an act under Section 302 of Indian Penal Code. But there are some mitigating circumstances. Which are these mitigating circumstances? Number one. I do not have a past record of committing crimes. This is my first crime. Fine. Second mitigating circumstance – my family was in dire need of a piece of bread. I did not commit this crime in a premeditated fashion. This was a crime that I committed in a fit of rage. So this crime was not committed in a predetermined fashion. That means there are some mitigating circumstances which speak in my favor. These mitigating circumstances might not excuse the crime but might offer an explanation. So the judges in this case, Macchi Singh vs State of Punjab, ruled that even after you accord maximum weightage to these mitigating circumstances which speak in favor of an accused, even after that if you think that life sentence is travesty of justice give capital punishment. So this was Macchi Singh vs State of Punjab. Another case, Justice Radhakrishnan, February 2013. Justice Radhakrishnan delivers a judgment. Justice Radhakrishnan says that these rarest of the rare cases does not depend upon the discretion of the judges but would depend on the societies’ abhorrence for certain crimes. For example, gang-rape of women, murdering minor girls. So the Supreme Court in this judgement said that we can award capital punishment only in those cases wherein the society as a whole think that this case is a rarest of the rare case. That means the judges will have to listen to the conscience of the society. This was Justice Radhakrishnan. Now we know, which are these cases? Which are these crimes wherein capital punishment can be awarded? What is the Constitutional validity of the death sentence? We know which are these rarest of the rare cases. But there existed something called Section 303 of Indian Penal Code. This case deals with the mandatory death sentence. Let me give you an example. For example I commit a murder. I am sentenced to life imprisonment for this crime. Now I am serving my time in the jail and in the jail I get into an altercation with a prisoner, and I murder him. For such specific case we had something called Section 303 of Indian Penal Code. That means, if a person is already serving time for life imprisonment and thereafter commits an act of murder, in this case the Supreme Court or the courts in this country shall mandatorily have to award capital punishment to me. The Supreme Court in Mithu vs State of Punjab ruled that this Section 303 of Indian Penal Code is unconstitutional. It violates Article 14 which is right to equality and it also violates Article 21 which is right to life provided under Part 3 of the Indian Constitution. The Supreme Court ruled that murder shall have to come only under Section 302 of Indian Penal Code in which case the courts in this country will have the power whether or not to award capital punishment. So that means the Supreme Court ruled in Mithu vs State of Punjab that you are creating unreasonable distinction between two crimes. Murder will have to come under Section 302. This Section 303 which calls for mandatory capital punishment in some cases is unconstitutional and void and the Supreme Court ordered its deletion.
Now let’s look at some of the avenues that are available to a death convict. For example, I commit a murder and the trial court awards capital punishment to me. But the law says I will not be hanged unless and until the High Court also validates this capital punishment. I go to the High Court. The High Court say that you are guilty and you hang till death. Will I be hanged? I file a petition with the Supreme Court of India. The Supreme Court of India says you’re guilty and you hang till death. What is the alternative available to me? I file another petition before the Supreme Court. The petition called review petition. I beg before the court that please review your decision. Review your decision wherein you awarded capital punishment to me. The Supreme Court says you’re guilty and you hang till death. What is the alternative available to me? I file another Review Petition and in this case, this review petition is called curative petition. These concepts of review petition and curative petition have been dealt in your tablet program. Go through the judiciary chapter once to revise this. So the point in telling this is that trial court gives me capital punishment, the High Court gives me capital punishment, the Supreme Court gives me capital punishment. I file a review petition which is rejected. I file a curative petition which is rejected. Then what is the alternative available to me. I file what is known as mercy plea before the President of India. Under Article 72 of the Indian Constitution, the Constitution gives immense power to the President of India to grant pardon, to commute death sentences and also remit certain crimes, provide respite to the offenders. Now we will only talk about pardon and commute. I file a mercy petition before the President of India and this mercy petition is to be decided by the President. When my mercy petition is also rejected by the President of India only then can I be hanged. Does the executive have a role in clemency? The Supreme Court has ruled that mercy petitions are to be decided upon by the President of India on the advice of the Home Minister of India. That means if I file the mercy petition to the President, the President sends this mercy petition to the Home Minister of India and the Home Minister advises the President of India whether to reject this mercy petition or to accept this mercy petition. If the Home Minister of India advises the President to accept this mercy petition then my death sentence would be commuted to life. What if the Home Minister of India recommends that my mercy petition should be rejected? In this case there are two alternatives available to the President. Either he accepts the recommendation of the Home Minister of India in which case I’ll be hanged and in other case he may not act on the advice of the Home Minister of India. In this case I’ll continue to remain on death row unless and until the President accepts or rejects my mercy petition. That means the President of India keeps this mercy petition pending. We’ll further explain this concept a bit later.
Right now let’s talk about how is the execution of death sentence carried on in India? There are two ways. One, hanging the accused, hanging the offender by neck till death and the other is firing by the death squad. Firing by the death squad is normally carried out in cases related to Army Act, Navy Act, Air Force Act. So there are two ways in which this death sentence is carried out in India. The Supreme Court has ruled in Deena vs Union of India (1993) case that hanging by neck is not unconstitutional. Now let’s go back to this mercy petition case. Can the order of execution be challenged in a court of law? Herein we will talk about the combined impact of two landmark cases in the history of Constitutional India. One, Shatrughan Chauhan vs Union of India and the second, Allahabad High Court in Peoples Union for Democratic Rights vs Union of India (2015). In these cases the Supreme Court ruled. Supreme Court in Shatrughan Chauhan and Allahabad High Court in PUDR vs Union of India. In these cases the judiciary have ruled out that when my mercy petition would be rejected, give me 14 day period. That means in this 14 day period I will not be hanged. Now why this 14 day period is given to me? So that I can settle my worldly affairs, I can meet my family and I can make peace with god so that I can be prepared mentally, psychologically, emotionally for the capital punishment. That means this 14 day period is to be provided to every convict and in this 14 day period no one should be hanged. Fine. Second, if I am suffering from terminal disease, or I am suffering from schizophrenia I should not be hanged. In this case commute my death sentence to life imprisonment. But few minutes back we talked about what if the President of India does not accept a recommendation of the Home Minister of India and keeps this mercy petition pending. What will happen because of this case? There will be delay. There are some instances wherein a person, a convict is on the death row for 20 years because the President of India has not either accepted his mercy petition or rejected his mercy petition. So that means there is delay. What is the Constitutional validity of delay? Will delay be a factor which can result in the commutation of death sentence to life imprisonment? There are three important cases in this aspect. First case, Vatheeswaran vs State of Tamil Nadu. In this case the Supreme Court ruled that if there is two years of delay, death sentence will be commuted to life imprisonment. Let’s look at another case. Sher Singh vs State of Punjab. In this case the court overruled the judgement given in Vatheeswaran vs State of Tamil Nadu, saying that if there is a delay of two years, death sentence will not get automatically commuted to life imprisonment. Case number three, this time decided upon by a Constitutional bench, Triveniben vs State of Gujarat. In this case the Supreme Court ruled, delay will form a factor and this will be taken into account and as a result of this death sentence of an accused will be commuted to the life imprisonment. But in Shatrughan Chauhan vs Union of India, this landmark case the Supreme Court ruled that if there is unexplained delay on part of the executive, if the executive is not able to fully convince the judiciary that why this mercy petition was not decided upon in a quick time, why there was so much delay in disposing of this mercy petition, in this case the Supreme Court has ruled that death sentence will be commuted to life imprisonment. So up till now we have understood all the Constitutional machinery related to capital punishment, which are these cases, which are these crimes which call for capital punishment. Capital punishment does not violate Article 21 of the Indian Constitution. We have also talked about which are these rarest of the rare cases. We have also talked about whether delay will play a factor in commuting a death sentence to life imprisonment. So everything that we needed to know regarding capital punishment we’ve discussed. Except two things. Arguments in favor of capital punishment and arguments against.
Let’s look at the arguments against capital punishment. In this part I’ve taken help from the writings of Mr. Sohrit Parthasarthiv. But advocating for the abolition of capital punishment when there is surge in the number of rapes in this country may appear morally dubious. What rights do people guilty of such heinous a crime lay claim to? And what do they deserve except death you might be inclined to ask? But when you apply an immoral law to monstrous criminals it becomes comparably easier to make iniquitous laws for the rest of us. Death sentence perfectly legal as it may be under India’s laws runs counter to the core objectives of the criminal justice system. Equally, its application in the rarest of the rare cases as mandated by the Supreme Court speaks to a larger incoherence in India’s penology.
Let’s look at these arguments one by one beginning with Baccaria’s treatise. Today’s argument regarding capital punishment has its broad genesis in 1764 when an Italian jurist, Cessare Baccaria published is treatise, an essay on crimes and punishment. In this Baccaria argued that abolition of capital punishment is crucial for the transition of a state from barbarism to civilized refinement. Baccaria asks a question. He asked, is it not absurd that laws which detect and punish for homicide should in order to punish homicide publically commit murder themselves? Baccaria’s arguments are based on two central arguments. One, Baccaria argues that the objectives of the punishment are dual. One, to deter future commission of the crimes which death penalty decidedly did not achieve, and two, to reform the offender, which death penalty decidedly cannot achieve. The second argument put forward by Cessare Baccaria is that the state does not have the right to snatch the life and liberty of an individual. Because it violates social contract. This part of social contract we have discussed in our sociology lectures. Please go through them. So basically what Cessare Baccaria is arguing, is arguing that punishment for a crime should only be of that severity and that degree that it should deter others from committing this crime. Years and centuries after Baccaria wrote his treatise there is no evidence evincing capital punishment’s ability to deter crime. If anything the converse has been found to be true. In United States for example, the abolitionist states, i.e. the states which have abolished capital punishment, these states have far less homicide rates as compared to death penalty states. That means the states which have death penalty as some form of punishment for some offences. So given that death penalty does not act as a deterrent and given that it cannot reform an offender the only logical argument in favor of capital punishment is on retribution grounds. But it was not on retribution grounds that death penalty was instilled as punishment for some offences under Indian Penal Code. Lord Macaulay who drafted Indian Penal Code writes in his introduction to the Indian Penal Code saying that number of petitions were filed before us asking us to wholly dispense with this idea of capital punishment, but no argument has convinced us to delete capital punishment from the statute books. He further writes that number of petitions also came before saying that gang robbery and rape, these are heinous crimes, these should also be kept under the prevue of capital punishment. That means for these offences the state should also impose capital punishment. But Lord Macaulay writes that yes gang robbery and rape, these are heinous crimes but these should not be equated with murder. Why? Lord Macaulay writes that these offences are almost always committed in such circumstances wherein the offender has the power to add murder to his guilt. Lord Macaulay writes that if a law which hangs for murder but imprisons for rape and gang robbery it holds a strong inducement to those offenders so that they can spare the life of the people they might have injured. That means Lord Macaulay is explaining in a lucid manner that death penalty acts as a deterrent. But even after decades of drafting Indian Penal Code, the efficacy of death sentence as a deterrent is at best unproven. Yet we continue to retain capital punishment as form of punishment. Yet, we continue to retain capital punishment as a punishment for some offences. But keeping capital punishment on retribution alone is flawed at many levels. In India you hang for murder but you do not rape for a rape. You do not commit counter theft. Although retribution does not always envisage an eye for an eye but we see it as being used as theoretical basis for some offenses. So Baccaria’s treatise, this argument is done. Lord Macaulay’s Argument is also done. Lord Macaulay is lucid in his explanation saying death sentence as a deterrence.
Further widening this penological schism is the Supreme Court’s dictum in Bachan Singh vs State of Punjab, the death sentence can only be applied in the rarest of the rare cases. Now you might well argue that this is a sufficient safeguard to prevent arbitrariness. If death sentence is awarded only in the rarest of the rare cases we do not require abolition of capital punishment from the statute books. But if we look deeper into this concept of rarest of the rare cases then we will find that awarding capital punishment in India has all the rationality of a roulette table. I’ll give you two specific cases. January 2013, a two-judge bench, Justice P. Sathasivam and Justice Fakeer Khalifullah, they decided upon a case. Which was this case? In 1999, Mahinder Singh raped his own daughter. For this act he was awarded 12 years imprisonment in a jail. In 2005, this Mahinder Singh is release on parole. While on parole, he kills both his wife as well as the daughter he had raped. For this specific case, the trial court awarded Mahinder Singh death sentence. This death sentence was confirmed by the High Court, but the Supreme Court, the Supreme Court bench of Justice P. Sathasivam and Justice Fakeer Khalifullah ruled that this is not rarest of the rare cases. In this case the Supreme Court ruled that Mahinder Singh is not the gravest threat to the security of the people. Fine, no problem with that. This is not rarest of the rare case. A week later, Justice P. Sathasivam and Justice Jagdish Kehar decides again a similar case. In this case, an individual had kidnapped a 7 year old boy and after kidnapping the 7 year old boy he had killed this boy. The Supreme Court in this case ruled that this is rarest of the rare cases. The Supreme Court ruled among many other things that imagine the plight of the family, imagine the plight of the parents of the 7 year old boy who lost their only male child who would’ve carried forward the family’s lineage. Notice the patriarchal mindset of the judges of this country as well. So this rarest of the rare doctrine is not a sufficient ground on which you can say that death sentence can be awarded in a rational manner. Tomorrow, if I am a convict, I might well ask a question to the judiciary – am I to live or die depending upon the way, depending upon the manner in which the benches are constituted from time to time? Is this not violative of the fundamental guarantees enshrined under the Indian Constitution under Article 14 and 21. So this is another argument against capital punishment. This rarest of the rare doctrine is not a sufficient safeguard.
But perhaps the most important argument in favor of abolishing capital punishment is its irrevocability. If I have committed a crime and I am awarded life imprisonment by the judiciary, if after some years it is found that I did not commit this crime and I was wrongly imprisoned, I may well be released. What if I am already hanged? That means this death sentence is irrevocable. You cannot revoke the sentence of death. Now you might well ask that this doesn’t happen in India. Let me give you a case, Santosh Kumar Bariar vs State of Maharashtra (2009) case. In this case Supreme Court ruled that the previous 13 judgements in which death sentences were awarded to the convicts, all these judgements were rendered per incuriam. That means in other words were rendered in ignorance of the law. That means the Supreme Court is accepting that the previous 13 judgements in which we gave death sentence to the accused, those judgements were given while wrongly reading the guidelines laid down by the Supreme Court in the Bachan Singh vs State of Punjab case. That means the Supreme Court accepted that we’ve wrongly given capital punishment to these 13 individuals. But the problem is, out of these 13 individuals 2 have already been hanged. In a country like ours, wherein accused’s right to free legal trial is at best a mockery, retaining capital punishment is flawed and sounds a death Mel to the working of the Constitution. So these are the arguments against capital punishment. Baccaria’s treatise, Lord Macaulay’s Argument, rarest of the rare and Irrevocability.
But why we focus on capital punishment? Why don’t we focus on other aspects as well? Better policing, better law and order maintenance, effective prosecutorial conduct. Why is it that almost 90% of the time when capital punishment is awarded by the trial court, this capital punishment is reversed by the higher courts? High Court or the Supreme Court. That means you do not have a rationality. That means you are applying wrongly capital punishment in different cases. So till the time we have some rationality in this entire exercise, please have a moratorium on capital punishment or abolish it altogether. So these are some of the arguments in favor of abolishing capital punishment. But what are the arguments in favor of retaining capital punishment. Let’s have a look at those.
The first argument, retribution. First a basic argument behind retribution and punishment. What is this basic argument? All guilty people deserve to be punished. Only guilty people deserve to be punished. Guilty people deserve to be punished in proportion to the severity of their crime. That means this principle states that real justice involves that people should suffer for their wrongdoings. And suffer in a manner appropriate to their crime. That means if a person has committed an act of murder, the only real justice can be if this person is hanged till death. This is retribution. That means only the guilty people should be punished and should be punished in a manner appropriate to the severity of their crime. This is the first logical argument in favor of capital punishment, retribution. Second argument, deterrence. A few minutes I back I said there is no evidence evincing death penalty’s efficiency as a deterrent. That means there is no evidence that suggests that death penalty acts as a deterrent. But there is also no evidence which suggest that death penalty does not act as a deterrent. That means for deterrence you need to have capital punishment. Let me take you back to Emile Dekhine. Emile Dekhine says that this society is operational because of collective conscience, a set of principles which is held by every single member of the society. If someone violates this collective conscience he has to be punished. Why? Not only because this individual has violated this set of collective conscience that he needs to be punished, but because so that others do not violate this collective conscience we have to punish that individual. We have to punish that individual to reinforce the societies’ belief in this set of collective conscience. That means to deter future commission of crimes death sentence is a valid logical argument. Third argument, rehabilitation. Now you will ask, how does capital punishment rehabilitate an offender? Clearly it does not. Clearly capital punishment does not rehabilitate an offender and take him back to the society. But what it does, the time before a person is to be executed, the person expresses remorse, accepts his guilt and there are various examples which tell us that this accused, this offender makes peace with god and ultimately realizes a some sort of profound spirituality. So that means a person who is on death row, he utilizes this time to achieve some sort of profound spiritual rehabilitation. Thomas Aquinas. Thomas Aquinas notes that by accepting the punishment of death, the prisoner, the convict expiates his evil deeds, and therefore, he escapes the punishment in the afterlife. This is not an argument in favor of capital punishment but this is only an argument that retaining capital punishment gives some sort of spiritual rehabilitation to the offender. Fourth argument, prevention of re-offending. This is undeniable that a person who is hanged for a crime cannot commit further crime whatsoever. But there is another logical argument in this country for retaining capital punishment. What if, for example, Ajmal Aamir Kasab was not hanged by the Government of India? He was still alive in a prison in Maharashtra. We may well have a situation wherein terrorists would take hostage, some school children, would hijack an airplane and would call for the release of Ajmal Aamir Kasab, therefore by keeping the terrorists alive in this country in prisons it is a grave national security threat and to secure the security environment in this country, capital punishment is required because we’re often in a state of war with our neighbors. Fifth argument, closure and vindication. It is often argued that when a victim’s family sees that there accused has been hanged, or have been given death sentence it gives them some sort of closure, some sort of vindication, so that they can spend their rest of their lives with peace. So this is another argument for retaining capital punishment in this country.
Let’s look at the last argument that we have, the Japanese argument. This is rather a quirky argument and not normally put forward. Japan uses capital punishment very sparingly, executing 3 persons per year. But there is some psychological justification provided by Japanese psychologists for retaining capital punishment as some sort of punishment for some offence. These Japanese psychologists argue that by hanging some individuals the stat is reinforcing a belief that bad things happen to the bad people and good things happen to the good people. That means if you work hard you’ll get a reward. These Japanese psychologists argue that retaining capital punishment has a very important role to play in the life of Japanese who are under severe stress of the work place. And this argument is backed by Japanese public opinion as well. 81% of the Japanese population are in favor of capital punishment. But from ethical point of view this argument is totally consequentialist in nature. This is a consequentialist argument that if executing a few people will lead to aggregate happiness among the others, this is a good and valid thing to do.
So these are the arguments in favor of retaining capital punishment on statute books. So what have we understood in this lecture? Everything that you require to know regarding capital punishment. Which crimes entail capital punishment, the Constitutional validity of death sentence in India? Which are these rarest of the rare cases? What has the Supreme Court ruled on the delay factor? Then arguments in favor of capital punishment and arguments against capital punishment. This is all I think that you require to know about this entire idea of capital punishment. Thanks for watching.