Death Penalty Abolition Debate

The death penalty is eminently fallible, yet irrevocably final. It operates in a system that is highly fragile and open to manipulation and mistakes. The exercise of mercy powers under Article 72/161 has also failed in acting as the final bulwark against miscarriage of justice arising from arbitrary, unfair or wrongful exercise of death penalty. Let’s map a story on what is going on in India.

Death Penalty Abolition Debate

Governors can pardon death row: Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Pardoning powers

Mains level : Read the attached story

The Supreme Court has held that the Governor of a State can pardon prisoners, including death row ones, even before they have served a minimum of 14 years of a prison sentence.

SC Judgement: Section 433-A CrPC

  • The Governor’s power to pardon overrides a provision in the Code of Criminal Procedure — Section 433A.
  • This article mandates that a prisoner’s sentence can be remitted only after 14 years of jail.
  • Such power is in the exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government, the apex court observed.
  • Section 433-A of the Code cannot and does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution.

What does one mean by Pardon?

  • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

Why need Pardon?

  • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
  • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
  • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

Pardoning powers in India

  • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
  • A similar and parallel power vests in the governors of each state under Article 161.

[I] President

  1. Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
  2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning that are mandated by law.
  • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
  • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
  • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

Cases as specified by art. 72

  • in all cases where the punishment or sentence is by a court-martial;
  • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
  • in all cases where the sentence is a sentence of death.

[II] Governor

  • Similarly, as per article 161: Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
  • It must be relating to a matter to which the executive power of the state extends.
  • President can grant pardon to a person awarded a death sentence. But a governor of a state does not enjoy this power.

Nature of the Pardoning Power

  • Not absolute: The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
  • Aid and advice: The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
  • Constitution is silent on this: This has not been discussed by the constitution but is the practical truth. Further, it does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
  • Judicial review applicable: But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.

Some traditions

  • It is important to note that India has a unitary legal system and there is no separate body of state law.
  • All crimes are crimes against the Union of India.
  • Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
  • While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.

Death Penalty Abolition Debate

Mercy petition

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Power of the President to pardon under Article 72

Mains level : Paper 2- Delay in carrying out death penalty and issues associated with it

The article highlights the issue of delay in carrying out the dealth penalty and issues associated with it.

Review of India’s position on the death penalty

  • The delay in carrying out the death penalty is one of the reasons to review India’s position on capital punishment.
  • The debate on the efficacy of the death penalty in reducing crime has been going on for several decades.
  • A few years ago, the issue of abolishing capital punishment was raised in the Rajya Sabha but was rejected by a voice vote.
  • The then Minister of State for Home Affairs stated that the government was not contemplating abolition of the death penalty.
  • In 2015, the Law Commission of India proposed abolishing the death penalty and sought the comments of States and Union Territories on the subject.
  • India figures among the 56 nations in the world that have retained the death penalty.

Issue of delay in carrying out the punishment

  • The prolonged detention of death row convicts in prison is not just inhuman but also against the canons of justice.
  • The delay coupled with long years of solitary confinement leads to immense psychological trauma.
  • It is small wonder that the courts tend to take a lenient view and reduce the sentence when such cases of prolonged years of detention come before them.
  • A time frame needs to be fixed for the President to dispose of mercy petitions.
  •  Delays in investigations, court hearings, and administrative steps to be taken after the final verdict need to be inquired into, and responsibility fixed.

Consider the question “Against the backdrop of delay in carrying out the dealth penalty in India, take the review of India’s position on the abolition of death penalty.”

Conclusion

With the changing time, we must change and so do the way we punish people. Capital punishment should be abolished in the country and until then, the inordinate delays in carrying out punishment should be avoided.

Death Penalty Abolition Debate

Death Penalty in India (Annual Statistics Report 2019)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Project 39A

Mains level : Capital Punishment and its justification

Trial courts in India delivered 102 death sentences in 2019, over 60% fewer than the 162 death sentences passed in 2018.

Highlights of the Report

  • In 2019, fewer death sentences overall were delivered.
  • 1 out of 2 sentences for sexual violence-murder; in 3 out of 4 sexual violence-murder death sentences, children were the killer’s victims.
  • The courts were, however, especially unforgiving of murders that involved sexual violence — the proportion of death sentences imposed for murders involving sexual offences was at a four-year high in 2019 at 52.94%.
  • 2019 also saw the highest number of confirmations by High Courts in four years; 17 out of the 26 confirmations (65.38%) were in offences of murder involving sexual violence.
  • The Supreme Court, primarily during the tenure of the previous CJI Gogoi, listed and heard 27 capital cases, the most in a year since 2001.

Project 39A

  • These are the headline findings in the fourth edition of The Death Penalty in India: Annual Statistics, published by Project 39A at the National Law University (NLU), Delhi.
  • Project 39A is a research and litigation initiative focussed on the criminal justice system, and especially issues of legal aid, torture, death penalty, and mental health in prisons.
  • The report tracked news of death sentences awarded by trial courts published online by news organisations in English and Hindi.
  • It checked these numbers against judgments uploaded to websites of High Court and district courts.

Death Penalty Abolition Debate

[oped of the day] The rhetoric and reality of capital punishment

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: SC

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 convicts

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.
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