There must be punishment for a wrong done, and this is the basic idea behind awarding them. The two main reasons for inflicting punishments are-one, it is right and just towards the victim that a person who has wronged him should be the person who suffers too. If the perpetrators of brutal rapes, murders are sentenced to any punishment less than that of death, it would be grossly disproportionate to the heinousness of the crime.
Some crimes are so inherently wrong that they call for strict penalties like life imprisonment and even death. Studies have shown that the death penalty is effective in deterring crimes. Other recent investigations also exhibit a secure link between executions and reduced murder rates. It wouldn’t be wrong to say that capital punishment indeed saves lives.
Position in India
India opposed a UN resolution calling for a moratorium on the death penalty because it goes against the Indian statutory legislation as well as against each country’s sovereign right to establish its legal system. In India, the death penalty is awarded for heinous and grievous crimes. According to article 21, no citizen of India shall be deprived of ‘right to life’. Various offences such as criminal conspiracy, murder, a war against the government, abetment of mutiny, dacoity with murder, and anti-terrorism are punishable with death sentences under the Indian Penal Code (IPC). The president has the power to grant mercy in a case of the death penalty. Bachan Singh vs the State of Punjab, the Court held that capital punishment would only be given in rarest of rare cases.
The constitutional validity of the death penalty was challenged from time to time in numerous cases starting from Jagmohan Singh v. State of U.P which was the first case dealing with the question of the constitutional validity of capital punishment in India. The counsel for the appellant, in this case, put forward three arguments that invalidate section 302 of the IPC. In this case, the Supreme Court rejected the argument that the death penalty is the violation of the “right to life” guaranteed under Article 19 of the Indian Constitution. After looking into the arguments, the five-judge bench upheld the constitutionality of the death penalty and held that deprivation of life is constitutionally permissible for being recognized as a permissible punishment by the drafters of our constitution.
In another case, Rajendra Prasad vs State of UP, Justice Krishna Iyer has empathetically stressed that the death penalty is violative of articles 14, 19, and 21. However, a year later in the landmark case of Bacchan Singh v State of Punjab, by a majority of 4 to 1, the Supreme Court overruled its earlier decision in Rajendra Prasad. Bacchan Singh v State of Punjab was the case that gave birth to the “rarest of the rare cases” doctrine and remains one of the most critical cases in this subject. The five-judge bench said:
“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law instrumentality. That ought not to be done except in rarest of rare cases where the alternative opinion is unquestionably foreclosed.”
Status of Capital Punishment in other countries
One of the most controversial topics around the world is the practice of the death penalty and is continuously up for debate. International law does not prohibit it, but most countries think that it violates the human rights individuals are entitled to. More than 70% of the countries have abolished it in law or practice. Yet, capital punishment remains legal in countries such as -Bangladesh, China, Egypt, Ethiopia, India, Indonesia, Iran, Japan, Nigeria, Saudi Arabia, South Korea, Sri Lanka, Taiwan, and the United States.
A brief overview of the Law Commission Report on Death Penalty 2015
The commission after conducting extensive studies on the issue of the death penalty concluded that the death penalty is in no way more an effective mode of deterrence than life imprisonment and so does not serve the penological goals. The two very essential aspects of justice that are restoration and rehabilitation are defeated when the death penalty is used as an ultimate measure of justice to the victims. The report also reckons that there is a rise in the state of uncertainty of capital punishment sentencing law due to the uneven application held in Bachhan Singh which undoubtedly goes against the constitution’s due process and equality principle. According to them, this is the reason why the constitutional regulation adopted in Bachhan Singh has failed to prevent death sentences from being arbitrarily imposed.
The death row phenomenon has become an unfortunate and distinctive feature of the death penalty apparatus in India. The Commission recommended that although there can be no valid logical justification for treating terrorism differently from other crimes, the country must keep in mind the concerns raised by lawmakers that abolishing the death penalty for terrorism and waging war, affects the national security, and so we should take the first step in abolishing it for all offences except terrorism. Finally, the Commission recommended that the State should establish effective victim compensation schemes to rehabilitate victims of crime. At the same time, it is also essential that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases.
This is not just a debate of legality and constitutionality of the death penalty but also the moral and social aspects that are related to this controversial topic that has to lead to extensive confusion in this respect. It is wrong to say that the death penalty should be accepted absolutely and in the most stringent manner. It has a fair share of drawbacks associated with it.
The existing ideas of crime and punishment highly influence the arguments for and against the death penalty. Some people are of a view that retaining this form of punishment indicates an uncivilized society, for the infliction of punishment on the criminal means release of brutal instinct, and so they believe it has no place in modern society. On the contrary, some people believe that if this penalty is taken out of the constitution it will create much instability in law and order of the country. No criminal would be afraid of the legal system as they would be sure that there is no punishment so strict that could harm their life and thus, it will become easy for them to get away with their crimes.
The main reason that justifies capital punishment is deterrence; it is way more effective than life imprisonment and acts as a tool for preventing crime. The death penalty also has a retributive factor attached to it. “Retribution” here doesn’t mean an eye for an eye; it represents the expression of public indignation to a shocking crime. Keeping the above into consideration, we cannot ignore the arguments against the death penalty based on irrevocability, the severity of the punishment, and the need for a modern approach towards it. Yet we still find many cases where it is impossible to show sympathy for the criminal or to assume any mental abnormality on his part or that he did what he did due to various external factors, i.e. factors other than his will or determination.
When it comes to completely eradicating the death penalty it has been observed that many nations including India are hesitant, taking cognizance of the violent erosions in the society which hinder the public security, life, liberty, national security, and the economy of the State. The country should retain capital punishment, but it should not be imposed in an arbitrary and discriminatory manner, must be inflicted only for cases involving heinous crimes as well as socio-economic crimes as prescribed by the law and keeping in mind the facts, circumstances and the gravity of the offences.