Death Penalty Abolition Debate

Death Penalty Abolition Debate

[oped of the day] The rhetoric and reality of capital punishmentop-ed snap

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Capital punishment - debate


Context

After the Supreme Court’s dismissal of review petitions by all four convicts in the Nirbhaya rape and murder case, the four have moved one step closer to the gallows.

Empirical evidence on Capital punishment

  • Past experience – the experience of the past century shows that the death penalty as a measure to end sexual violence has completely failed.
  • Country-wise – In 1965, only 23 nations had abolished the death penalty. Subsequently, over two-thirds of countries have given up on capital punishment either in law or in practice. 

Against natural justice

    • Punishment – In the system of criminal justice, sentencing is done based on the ‘Theory of Punishment’.
    • Classical law – four elements of a systematic punishment
      • the protection of society
      • the deterrence of criminality
      • the rehabilitation and reform of the criminal
      • the retributive effect for the victims and society
    • Capital punishment goes against the spirit of the ‘Theory of Punishment’, and natural justice.

‘Protection of society’

  • This is not served by imposing the death sentence any better than by incarceration. 
  • This has been proven, as inmates have spent decades on death row, being brutalized by the inhuman punishment meted out to them. 

Deterrence

  • There are several factors that affect criminal activity and deterrence is only one of them.
  • In a UN survey, it was concluded that “capital punishment deters murder to a marginally greater extent than the threat of life imprisonment.”
  • The report of the Justice J.S. Verma Committee said that capital punishment is a regressive step and may not provide deterrence. 
  • The committee recommended the life sentence for the most grievous of crimes.
  • A reasonable man is deterred not by the gravity of the sentence but by the detectability of the crime.

‘Reform and rehabilitation of the criminal’

  • This is immediately nullified by the prospect of capital punishment.

‘The retributive effect’

  • Killing should never be carried out based on the primal and emotive desire among human beings for revenge. 
  • Revenge is a personalised and emotional form of retribution, which often loses sight of proportionality.

Study of convicts

  • Against weaker sections – A comparative study of death row conflicts shows that the jurisprudence in this regard is skewed against the weaker sections. 
  • Justice P.N. Bhagwati said that the “death penalty in its actual operation is discriminatory for it strikes mostly against the poor and deprived”. The reasons include a lack of adequate legal assistance to the marginalised. 
  • The Death Penalty Project has shown the manner in which wrongful capital sentencing is carried out. In the United States alone, over 350 people have reportedly been wrongfully sentenced in the last century.

Conclusion

  • It becomes imperative for the judiciary not give in to the public clamor for making capital punishment mandatory for rape convicts. 
  • Public angst and emotions cannot be an alternative to reason and logic. 
  • There needs to be better enforcement of the law in response to valid questions on justice but the death penalty holds no answers.
Death Penalty Abolition Debate

Life imprisonment is the rule, death penalty the exception: SCSC Judgements


Note4students

Mains Paper 2: Polity | Separation of powers between various organs dispute redressal mechanisms and institutions.

From UPSC perspective, the following things are important:

Prelims level: Not Much

Mains level: Row over capital punishment


News

  • If a court finds it difficult to make a choice between death penalty and life imprisonment, it should opt for the lesser punishment, the Supreme Court said in a recent judgment.

Death penalty is exceptional

  • Life imprisonment is the rule to which the death penalty is the exception.
  • The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime.
  • The judgment was based on an appeal filed by a man sentenced to death for the rape and murder of a five-year-old in Madhya Pradesh.
  • The court ordered the convict to serve his life sentence with a minimum of 25 years’ imprisonment without remission.
Death Penalty Abolition Debate

[op-ed snap]Back to life: on the belated acquittal of death row convictsop-ed snap


Note4students

Mains Paper 2: Governance | Issues relating to development and management of Social Sector/Services relating to Health, Education, Human Resources.

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: The newscard talks against the death penalty. It supports the argument that there is no point of allowing death penalty.


NEWS

CONTEXT

Six members of a nomadic tribe spent 16 years in prison in Maharashtra;three of them were on death row for 13 of these years.A three-judge Bench has now found that unreliable testimony had been used to convict the six men.

Supreme Court’s Judgements

  • In recent years, the Supreme Court has been limiting the scope for resorting to the death penalty by a series of judgments that recognise the rights of death row convicts.
  • A few years ago it ruled that review petitions in cases of death sentence should be heard in open court.

Deepening inequality in access to Justice

  • It is inevitable that the long wait on death row, either for a review hearing or for the disposal of a mercy petition, could ultimately redound to the benefit of the convicts and their death sentences altered to life terms.
  • In a system that many say favours the affluent and the influential, the likelihood of institutional bias against the socially and economically weak is quite high.
  • Also, there is a perception that the way the “rarest of rare cases” norm is applied by various courts is arbitrary and inconsistent.

Way Forward

  • The clamour for justice often becomes a call for the maximum sentence.
  • In that sense, every death sentence throws up a moral dilemma on whether the truth has been sufficiently established.
  • In that sense, every death sentence throws up a moral dilemma on whether the truth has been sufficiently established.
Death Penalty Abolition Debate

India votes against UNGA draft resolution on use of death penaltyIOCR


Note4students

Mains Paper 2: IR | Important International institutions, agencies & fora, their structure, mandate

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Debate over ban on death penalty


News

  • India has voted against a United Nations General Assembly draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the “rarest of rare” cases.

UN Against Death Penalty

  1. The draft resolution, taken up in the Third Committee (Social, Humanitarian, Cultural) of the General Assembly was approved with a recorded vote of 123 in favour, 36 against and 30 abstentions.
  2. India was among the countries that voted against the resolution, which would have the Assembly call on all States to respect international standards on the rights of those facing death penalty.
  3. The draft aimed to ensure that it is not applied on the basis of discriminatory laws or as a result of discriminatory or arbitrary application of the law.

India’s Stance of Death Penalty

  1. The resolution sought to promote a moratorium on executions with the aim of abolishing death penalty.
  2. India has voted against the resolution as a whole, as it goes against statutory law in India.
  3. The death penalty is exercised in ‘rarest of rare’ cases, where the crime committed is so heinous that it shocks the conscience of the society.
  4. Indian law provides for all requisite procedural safeguards, including the right to a fair trial by an independent Court, presumption of innocence, the minimum guarantees for defence, and the right to review by a higher court.
  5. Indian delegation has argued for the sovereign right to determine its own legal system and appropriate legal penalties.

Singapore brings in Amendment

  1. Singapore’s delegate decried the draft resolution’s “one-size-fits-all” approach to a delicate question, which seeks to impose a particular vision of the world onto others.
  2. The representative of Singapore said the amendment aimed to ensure respect for the diversity of views.
  3. The amendment is simple and neutral and it does not take a position on the substance of the draft resolution, nor make judgments about State policies.

Voting for Sovereignty over Legal System

  1. The draft resolution’s passage followed an intense debate and Singapore introduced an amendment on behalf of 34 countries that reaffirmed the countries’ sovereign right to develop their own legal system.
  2. The Committee then approved this amendment by a recorded vote of 96 in favour to 73 against, with 14 abstentions.
  3. India voted in favour of this amendment.
  4. By its terms, the Assembly would reaffirm the sovereign right of all countries to develop their own legal systems, including determining appropriate legal penalties, in accordance with their international law obligations.
Death Penalty Abolition Debate

Explained: Governor’s Pardoning PowerPriority 1


Note4Students

Mains Paper 2: Polity | Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

From UPSC perspective, the following things are important:

Prelims Level: Article 161, 163

Mains Level:  Issues related to the discretionary powers and appointments of Governor are well debated this year.


News

Remission of Ex-PMs assassins

  1. The discretionary powers of the Governor are once again at the centre of a fresh controversy to decide on the remission of seven convicts in the Rajiv Gandhi assassination case.
  2. A Supreme Court Bench led by Justice Ranjan Gogoi, while disposing a writ petition, recorded that the petitioner had filed an application before the TN Governor.
  3. Following this, the TN Cabinet adopted a resolution recommending that the Governor release the seven convicts under Article 161 of the Constitution.

Various Provisions

  1. Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
  2. The Governor’s decision will be subject to judicial review by the constitutional courts.
  3. Nevertheless, the immediate question is whether there is an independent, discretionary power vested with the Governor with regard to Articles 161 and 163 (Council of Ministers to aid and advise Governor).

What earlier SCs Judgments say?

  1. In the view of the Supreme Court, speaking through a five-judge Bench in Nabam Rebia and Bamang Felix v. Deputy Speaker (2016), the discretionary power of the Governor is extremely limited and entirely amenable to judicial review.
  2. Time and again, the courts have spoken out against the Governor acting in the capacity of an “all-pervading super-constitutional authority”.
  3. Even when the exercise of discretion is concerned, a seven-judge Bench of the apex court in Samsher Singh v. State of Punjab (1974) had held that the Governor may do so only in harmony with his Council of Ministers.
  4. To do so, the Governor is precluded from taking a stand against the wishes of the Council of Ministers.

Issues Involved

  1. The area being traversed in this case is alien to our Constitution, not having envisaged a situation where the Governor exercises his power under Article 161 against the express recommendation of the Council of Ministers.
  2. Such a decision will result in a tragic rejection of the Constitution and its founding principles such as the federal structure, Cabinet responsibility and accountable governance.
  3. This may also be interpreted as the Governor having lost faith in the State government with regard to the performance of its executive functions.
  4. Either way, to stay true to the spirit of the Constitution, the Governor should desist from conferring discretionary powers to his office where there are none.

Back2Basics

Pardoning Powers of Governor (Article 161)

  1. The Governor can grant Pardons, reprieves, respites and remissions of punishments or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.
  2. The Governor cannot Pardon a death Sentence. (The President has the power of Pardon a death Sentence).
  3. The Governor cannot grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court martial. However the President can do so.
Death Penalty Abolition Debate

Judicial innovation helps SC avoid awarding death penaltySC Judgements


  1. Context: Tattu Lodhi case verdict on child rape and murder
  2. Judicial Innovation: Death penalty is substituted with a special category of without the benefit of release on remission for prolonged periods ranging from 25 to 30 years, if not more
  3. Significance: It helps get rid of death penalty
  4. Addresses the genuine concerns of the society to see justice done
  5. An endeavour by the apex court to make no party (convict or the society) a loser

Discuss: Is capital punishment justified, even if the convict is sentenced for a gruesome crime belonging to rarest of rare cases? Also examine the opinion of the Supreme Court of India regarding death sentences

Death Penalty Abolition Debate

Compassion on death row casesop-ed snapSC Judgements


Until death penalty is abolished, courts need to humanise the law and procedure relating to death and mercy.

  1. Death row convict Mohammed Arif alias Ashfaq has been given one more opportunity of an oral hearing.
  2. A 30-minute oral hearing in open court for every review petition involving the penalty is a constitutional requirement.
  3. It was not applicable to Ashfaq as his review and curative petitions had already been rejected.
  4. He was granted a concession in order that even the slightest possibility of error may be eliminated.
  5. Supreme Court has been dealing with cases culminating in the death penalty in a liberal spirit in recent years.
  6. In sept. 2014, it carved out an exception for death row cases alone by making oral hearing an integral part of ‘reasonable procedure’.
  7. In general review petitions are decided by circulation of the papers among judges not by oral hearing.
Death Penalty Abolition Debate

Germany won’t sign MLAT, cites death penalty


Germany has expressed its inability to sign the Mutual Legal Assistance Treaty (MLAT) with India, citing its provision for death penalty for heinous crimes and terror activities.

  1. India has signed MLAT with 39 countries, including the United States.
  2. This is perhaps the first time a country has refused to sign the treaty on grounds of the death penalty provision.
  3. An MLAT is an agreement between two or more countries for gathering and exchanging information to enforce public or criminal laws.
Death Penalty Abolition Debate

Let’s discuss the case for Death Penalties


 

What Judicial Responsibility Must Mean in the Age of the Death Penalty?

Judicial responsibility means not just the responsibility to uphold the law; it means the overarching responsibility to do justice.


 

Here’s is a pertinent case which we have picked up from the article. It’s written by a High Court Judge:

In 2000, the Madras High Court (Justice Sirpurkar and I) heard an appeal against the death penalty. A school-girl was raped and murdered by three persons. It was a sensational case. The trial court found it to be a case of the ‘rarest of rare’ and sentenced them to death. We commuted the sentence to life. I received several letters asking me if I was a woman, since the deceased was a victim of sexual violence.

There was no platform from where I could say that we had not acquitted the accused, but we had commuted the sentence, for valid reasons regarding the circumstances of the accused. Sometime in 2014, I read a news item about a project in Tamil Nadu conducting courses for prisoners to rehabilitate and equip them with life skills. Among the life-term prisoners who had secured gold medals and state ranks was the first accused in the above case.

This is not submitted as an argument against the death penalty, but as an argument for upholding the right to life. The state punishes not only as a deterrent, but to reform too.

 

Death Penalty Abolition Debate

Law Commission: End death penalty, keep it for terror only


  1. India is one of 59 countries where the death penalty is still awarded by courts.
  2. More recently, the issue was debated in the run-up to the July 30 hanging of Mumbai blasts convict Yakub Memon.
  3. In 1962, the Law Commission, in its 35th report, had recommended retention of death penalty.

The death penalty has no demonstrated utility in deterring crime or incapacitating offenders, any more than its alternative — imprisonment for life. The quest for retribution as a penal justification cannot descend into cries for vengeance.


What do you think of this case?

What was the Bachan Singh versus State of Punjab & the “rarest of the rare” doctrine?

Death Penalty Abolition Debate

Tripura assembly passes resolution against death penalty


  1. Tripura Assembly has passed a resolution to request the Union Government to amend Section 302 of the IPC to abolish capital punishment and replace it with life sentence unto death.
  2. The resolution was adopted unanimously and would be sent to union government and the Law Commission for consideration.
Death Penalty Abolition Debate

Yakub Memon’s hanging sparks debate over death penalty


Here’s what different parties had to say:

  1. The chorus was led by Congress parliamentarian Shashi Tharoor who said “State-sponsored killing” reduces citizens to murderers.
  2. DMK parliamentarian Kanimozhi Karunanidhi vowed to move a private member’s bill in the Rajya Sabha to abolish death sentences.
  3. Courts in India had awarded death penalty to 2,052 convicts between 1998 and 2013, according to the National Crime Records Bureau, but only three were executed.

     

    The three executions were those of Dhananjoy Chatterjee in 2004, who was convicted for the rape and murder of a teenage girl in Kolkata, Ajmal Kasab for the 2008 Mumbai terror attacks and Afzal Guru for the 2001 Parliament attack.

Death Penalty Abolition Debate

SC should reconsider validity of death penalty, says ex-judge


  1. SC in Shanker Kisan Rao Khade vs Maharashtra, 2013 set out the principle for awarding capital punishment.
  2. Court held that capital punishment can be awarded only if there are zero mitigating circumstances.
  3. The award of death penalty should be “society-centric” and the litmus test is whether society will approve the awarding of death sentence or not.
  4. The court has to look into a variety of factors like society’s abhorrence, extreme indignation and antipathy to the crime.
Death Penalty Abolition Debate

Justice or vengeance – Exploring death warrantop-ed snapSC Judgements


  1. Death warrant or ‘black’ warrant proceedings are held in the court that first ordered the sentence of death.
  2. Ideally, the death warrant proceedings should take place only after a prisoner has exhausted all legal remedies.
  3. The SC, in Shabnam v. Union of India case (May 2015) has laid down the key principles for black warrant proceedings.
  4. After the decision of SC, a black warrant proceeding cannot take place without the accused and his lawyer being present.
  5. The Supreme Court in Shatrughan Chauhan v. Union of India case (January 2014) once again affirmed the rights of death row prisoners to challenge the rejection of their mercy petition on certain grounds.
Death Penalty Abolition Debate

Trial & error – A case on death penaltiesop-ed snap


The editorial makes the case for increase in number of death penalty handed out by trial courts and demands abolition of death penalty.

  1. The reason being, trial courts have close proximity to crimes than higher courts in terms of occurrence and distance.
  2. Much of the debate around the death penalty in India centers on SC rulings and observations.
  3. As trail courts handed over 1800 death penalties, only 5% of them were confirmed by SC. Therefore, there is a little attention paid to misuse of death penalty in India’s lower court.
  4. SC laid down the ‘’rarest of the rare “principle in 1980 Bachan Singh vs State of Punjab ruling.
Death Penalty Abolition Debate

On Yakub Memon: Every culprit entertains false hope


“O my lord, forgive this man. He knows not what he does!” Yakub Memon had screamed like a caged animal, his angry eyes fixed on the judge when the Tada Court sentenced him to death in July 2007.

The outburst stunned the courtroom into silence, but Judge P.D. Kode remained unperturbed by the drama, and went on with his business with the usual calmness associated with him.

Yakub Memon’s review petition seeking the recall of the March 21 2013 apex court order upholding his death sentence is presently before the Supreme Court which has stayed his execution.

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