7 PM | Capital punishment: should it be abolished or not? | 7 March, 2019

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A recent case of 6 members of nomadic tribe where all were facing the death row and recently acquitted by the Supreme Court, once again bring the debate to life that should death penalty be abolished or not?

Before going into the debate let’s have a look at some important details of Case of nomadic tribes:

• 3 out of 6 convicts have been on death row for 13 years.
• Other 3 convicts have been on death row for a decade.
• One of the convicts was a juvenile at the time of the offence.
• Offence was murder of 5 family members, rape and looting.
• A three-judge Bench has now found that unreliable testimony had been used to convict the six men.

Provisions regarding death penalty

• Under section 302 of IPC in case of murder, the judges can choose between death sentence and imprisonment for life. The question of life and death is left to the discretion of a judge.
• Supreme Court in the case Of Machhi Singh v State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed on the offenders.
• Currently, judges in India can impose the death penalty in the “rarest of rare” cases, including treason, mutiny, murder, abetment of suicide, and kidnapping for ransom.
• In 2013, an amendment to the law permitted death as a punishment in cases where rape was fatal or left the victim in a persistent vegetative state, as well as for certain repeat offenders.

Why Death penalty should be abolished?

Lang delay in hearings cause suffering: Convicts facing Death row continue to face long delays in trials, appeals, and executive clemency. During this time, prisoners on death row suffer from agony, anxiety, and fear because of an imminent yet uncertain execution.

International developments: India has retained capital punishment while 140 countries have abolished it in law or in practice. That leaves India in a club with the USA, Iran, China, and Saudi Arabia as a country which retains it.

Arbitrary sentencing of capital punishment: From some past experiences it is being argued that judiciary has shown arbitrariness in sentence of capital punishment.

Death penalty as a deterrence: The decline in murder rate in India has coincided with a decline in rate of executions. There is no evidence to show that death penalty acts as a deterrent for sexual violence or any other crime

Social biases: In the Indian context, there is a high possibility of its misuse given the social biases that influence police investigation and prosecution.

Misuse of rarest of rare cases norm: there is a perception that the way the “rarest of rare cases” norm is applied by various courts is arbitrary and inconsistent.

Constitutional rights: Death sentence is the violation of the “right to life” which is guaranteed under article 21 of constitution of India.

Why death penalty should be retained?

Supreme Court’s observation: Constitutional validity of the capital punishment has been upheld by Supreme Court. A bench of Chief Justice Dipak Misra and Justices R Banumathi and Ashok Bhushan observed that considering the existence of death penalty in the penal code, constitutional provisions and international covenant on civil and criminal rights, death penalty was “constitutionally valid”.

International examples: Even the liberal democracies such as USA has not abolished it.

Deterrence to state sponsored terror: India is surrounded by enemies in the neighborhood and cases of violent terror are constant reminders of the need to protect national stability by ensuring appropriate responses to such actions, and the death penalty forms part of the national response.

Retributive justice: Death penalty cannot be abolished by looking at its impact on criminals but looking at the impact at the innocent, who looks for retributive justice.

Judicial Arbitrariness is not proven in cases of death penalty, judiciary has always been conscious of its irreversibility and therefore restricted it to only to the rarest of rare cases.

Societal norms: Retention of death penalty determines works as a message to everyone that There are certain heinous crimes which the society so essentially abhors that they justify the taking of the most crucial of rights – the right to life.

Death penalty once executed is not something reversable, thus there is a need to create some mechanism within judiciary that can review the judgements awarding capital punishment thoroughly and make sure that no innocent is executed.

Source: https://www.thehindu.com/opinion/editorial/back-to-life/article26449851.ece