Should India abolish the death penalty?

Context:

The Supreme Court has stayed the execution of a couple, sentenced to death penalty in a case of sacrificing a two-year boy.

Introduction:

• A Bench headed by Justice Dipak Mishra admitted the appeal filed by the condemned prisoners, Ishwari Lal Yadav and his wife Kiran Bai, whose death penalty was confirmed by the Chattisgargh High Court in the human sacrifice case.
• The Bench also comprising Justice Amitava Roy and A.M. Khanwilkar
• The case dates back to November 23, 2010 when Chirag, the two-year old son of Poshan Singh Rajput, went missing.

Death penalty:

• Death penalty, also known as Capital punishment, is a government sanctioned practice whereby a person is put to death by the state as a punishment for  the gravest of crimes such as murder, acts of terrorism, gang rape etc.

Statistics related to death penalty:

The number of people executed in India since the nation achieved Independence in 1947 is a matter of dispute.

• According to official government figures fifty-two people had been executed since Independence
• However, research by the People’s Union for Civil Liberties indicates that the actual number of executions cases is much higher, as they  noticed records of 1,422 executions in the decade from 1953 to 1963 alone.
•  Research published by National Law University, Delhi on death row convicts since 2000 had found that of the 1,617 prisoners sentenced to death by trial courts in India, capital punishment was confirmed in only seventy-one cases.
• National Law University, Delhi examined 1,414 prisoners who were executed, in the available list of convicts hanged in post-Independence since 1947.
•  According to a report of the Law Commission of India (1967), the total number of cases in which the sentence of death in India was executed from 1953 to 1963 was 1,410.

Arguments related to death penalty:

The Supreme Court has itself admitted on several occasions that there is confusion and contradiction in the application of the death penalty.

1. Arguments in favour for death penalty:

• Proponents of the death penalty say it is an important tool for preserving law and order, deters crime, and costs less than life imprisonment.
• Proponents argue that retribution or “an eye for an eye” honors the victim, helps console grieving families, and ensures that the perpetrators of heinous crimes never have an opportunity to cause future tragedy.
• Death sentence serves as deterrent for other criminals.
• A guilty must be punished proportionate to the severity of the crime
• Death sentence in India should be there in the statute books to contain terrorism.
• Death penalty provides a closure for the victims’ families.

2. Arguments against death penalty:

• Opponents of capital punishment say it has no deterrent effect on crime, wrongly gives governments the power to take human life.
• It perpetuates social injustices by disproportionately targeting people of color (racist) and people who cannot afford good attorneys (classist). They say lifetime jail sentences are a more severe and less expensive punishment than death.
• Human rights activists say it is inhumane and barbaric to sentence the criminals with death penalty.
• Death sentence has not served as a deterrent to control crime.
• Death sentence violates international human rights laws
• As death sentence is irrevocable – an innocent person can also be wrongly executed
• There is no uniform and fair principle on execution of convicts on death row

Example:

Rajiv Gandhi Case:

• The death penalty is little more than judicially sanctioned murder
• Justice K. T. Thomas, who headed the three member bench in the Rajiv Gandhi assassination case,  gave verdict that executing Perarivalan, Murugan and Santhan, convicted to death in the case, would amount to punishing them twice for the same offence.

Issues involved in death penalty:

The death penalty breaches two essential human rights. Both rights are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948.

1. The right to life
2.  The right to live free from torture.

Laws related to death penalty:

The following international laws explicitly ban use of the death penalty, except during times of war:

• The Second Optional Protocol to the International Covenant on Civil and Political Rights
• Protocol No. 6 to the European Convention on Human Rights
• The Protocol to the American Convention on Human Rights to Abolish the Death Penalty.

• The European Convention on Human Rights (Protocol No. 13) bans use of the death penalty at all times, even during war.
• Although international law says that the death penalty can be used for the most serious crimes, like murder, Amnesty believes that the death penalty is never the answer.

Execution methods:

There are many and varied types of execution used around the world today, including:

• Beheading
•  Electrocution
•  Hanging
•  Lethal injection
• Shooting in the back of the head and by firing squad

Problems related to death penalty:

1. Irreversible and mistake happen: Execution is the ultimate, irrevocable punishment. The risk of executing an innocent person can never be eliminated.
2. Does not deter crime: Countries who execute commonly cite the death penalty as a way to deter people from committing crime. This claim has been repeatedly discredited, and there is no evidence that the death penalty is any more effective in reducing crime than imprisonment.
3. Often used within skewed justice systems: Some of the nations executing the most people have deeply unfair legal system. The top three executing nations –China , Iran and Iraq, have issued death sentence after unfair trials.
4. Many death sentences are issued after ‘confessions’ that have been obtained through torture.
5. Poor and marginalized groups are more likely to be sentenced to death because of discrimination in the justice system. Poor and marginalized groups have less access to the legal resources needed to defend themselves.
6. The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
7. Miscarriage of justice is one of the biggest concerns about the death penalty Constitutional provisions:

Article 72(1) of the Constitution of India states:

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 offence

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) 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;

(c) in all cases where the sentence is a sentence of death.

Death penalty in India:

• Capital punishment is a legal penalty in India
• At least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to death (but not executed), according to Amnesty International statistics.
• The Supreme Court in Mithu vs. State of Punjab struck down Section 303 of the Indian Penal Code, which provided for a mandatory death sentence for offenders serving a life sentence.
• In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium  on the death penalty.
•  In November 2012, India again upheld its stance on capital punishment by voting against the  UN General Assembly draft resolution seeking to end the institution of capital punishment globally.
• On 31 August 2015, the Law Commission of India submitted a report to the government which recommended the abolition of capital punishment for all crimes in India, excepting the crime of waging war against the nation or for terrorism-related offences.
• The Law Commission report cited several factors to justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven deterring effect on criminal

Global report on death sentences:

• As per the global report on  death sentences and execution, India warded as many as 136 death sentences in 2016 as compared to 75  death sentences  in 2015 and the crimes for which capital punishment was awarded mainly included murders
• The figure almost doubled in 2016 on account of the new anti-hijacking law, which allowed for capital punishment even in cases of hijacking
• As per the report, India did not register a single execution in 2016 but it had more than 400 prisoners who were to be executed at the end of the year.
• Comparatively, Pakistan recorded a significant dip of 73 per cent in the number of executions. More than 320 people were executed in Pakistan in 2015 while last year, only around 87 people were executed in the country.

The Amnesty International report:

• According to the report India is among the few countries that imposed death penalty for drug-related offences.
• The death penalty was imposed or implemented for drug- related offences in a number of countries, including China, India, Indonesia, Iran, Kuwait, Laos, Malaysia, Saudi Arabia, Singapore, Sri Lanka, Thailand, United Arab Emirates and Vietnam.
• A total of 1,032 persons were executed in 23 countries in 2016 in comparison to 1,634 executions in 25 countries in 2015, adding that two of the 25 countries that had executed  death penalty in 2015 abolished it in 2016.
• Of the total executions in 2016, most took place in China, Iran, Saudi Arabia, Iraq and Pakistan, in that order.
• The report states that though China continued to be the world’s top executioner, the true extent of the use of  death penalty  is unknown as this data is considered a state secret
• Among India’s neighbours, Pakistan had the highest number of  death sentences  at 360, followed by Bangladesh at 245. Sri Lanka had 79 death sentences   last year
• For the first time since 2006, the USA was not one of the five biggest executioners, falling to seventh behind Egypt.

Conclusion:

• An eye for an eye makes the whole world blind,” said Mahatma Gandhi. On the same thought of Mahatma Gandhi, Death penalty should be banned in India. There is need to eradicate crime and not the criminals.. Legalising the capital punishment will not help removing the crime .There is need to provide counseling and therapy to criminals
• Ideally, India should join the majority of nations that have abolished death penalty. It should certainly absorb the sentiment behind the increasing support by the comity of nations to the UN’s camp