ARGUMENTS AGAINST DEATH PENALTY
INTRODUCTION
Today, we live in a world where the level of patience of the people has deteriorated over time. No more do people have the forbearance to accept certain forbidden practices. Thus, the society we live in has started using capital punishment as a means of justice. Death penalty for long has been a controversial subject. Many favour it on the basis to form a precedent for future crimes and those oppose it do so on the grounds of right to life. Over the course of many years, various research studies, debates and amendments have taken place with respect to death penalty. The question raised is why death penalty should not be used as deterrence to future acts of crime.
Death penalty has become more of a human rights issue. Yet, it seems to form a major part of the legal system of India. In such a situation the question arises that which crimes can be so heinous to take the life of the accused. How can we justify taking of the life of another for certain acts. Doesn’t it sound barbarous on the part of the Justice system to take the life of the accused, when the victim is already dead? This sounds more like the notion “one life for another”.
I seek to highlight the various arguments put forth by scholars as well as certain judgements which critique the capital punishment. I will provide the different views on abolishment of death penalty. However, before understanding the main reasons for such a punishment to be still prevalent, we must look at what is death penalty and when can it be awarded to a person?
Firstly, the most common definition of death penalty is “lawful infliction of death in the form of a punishment for certain wrongful acts.” This basically means that the natural life of a person can be cut short legally by taking recourse to law. As per Indian law, death penalty can only be awarded in the rarest cases. Although, many countries have now decided to abolish death penalty as a form of punishment, India has still continued to use it in certain cases.
It is safe to say that death penalty is not a modern concept. It has been present in our society since the early 18th century. The existence of death penalty can be seen in the executions undertaken by the King for non-compliance of orders passed him. As the legal system
developed, this form of punishment was incorporated in the Indian Penal Code, 1860 and has been in existence since then.
During the end of 19th century, human activists started to emerge arguing against the constitutional validity of death penalty all over the world. By 1986, 46 countries had abolished the death penalty for ordinary crimes.1 The main reason for such a drastic turn around was a better understanding of human rights.
POSITION IN INDIA
The major part of the Criminal Law, that is, The Indian Penal Code, 1860 provides for death sentence or life imprisonment. It must be noted that no section of the law makes in mandatory to award death sentence.
In India, the method of execution used for death sentence is hanging. The first case with respect to constitutionality of the Section 354(5) of the Criminal Procedure Code first came up in Deena v. Union of India.2 The main issue in this case was with respect to the constitutional validity of mode of hanging. Although the courts held that the mode of hanging was not violative of Article 21 of the Constitution, it was argued by Justice Bhagwati that Section 354(5) provided that when a convict is sentenced to death, it should be written that he be hanged by the neck till he is dead, was unconstitutional for violation Article 21.3
In the year 1980 during the Bachan Singh vs. State of Punjab 4 case, the Supreme Court repealed Section 303 of the Indian Penal Code which stated that ,” Whoever, being under sentence of 1[imprisonment for life], commits murder, shall be punished with death.”
This section was repealed due to its misuse by the lower courts which were sentencing people to death without any order or regulation. Ultimately this section was declared as unconstitutional as there should be no fixed or mandatory punishment for murder. In the case of Mithu vs. State of Punjab5, the constitutional validity of this section was challenged on the grounds of Article 14 (right to equality) and Article 21 (right to life). This case was considered as a landmark judgement as it gave clear reasons as to why this section was against the very interests of citizens of a nation.
In this case, the judges explained the reason for enactment of this Section which was to discourage assaults by life-convicts on the prison staff. This section forced the courts to amount death sentence to a person who committed murder while still undergoing life sentence irrespective of the argument put forth by them. This section divided the murderers into two categories – life convict murderers still undergoing life sentence and the rest of the murderers.6 At this point, even the Supreme Court could not come up with a rational justification for treating life-term prisoners differently from other murderers. Hence, this section was argued as being arbitrary. The Court further went on to state that if a distinction is to be created it should so be created in favour of the life-sentence prisoners as they face extreme pressure and strains and deserve more sympathy. It is necessary to look at each case, keeping all the factors such as age, mental disturbance and so on, differently. Hence, this proved that Section 303 was violating Article 14 that is right to equality.
Article 21 of the Indian Constitution states that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This Article guarantees to all the Indians a right to life. With respect to violation of this article, the Court looked into the Maneka Gandhi vs Union of India case, and stated that any procedure under Article 21 needs to be in accordance with due process of law.7 Therefore, the basic right of any accused person to be heard is violated under this section also it rendered Section 235(2) of the Criminal Code of Procedure meaningless.
Hence, all cases with reference to Murder were to be dealt under Section 302 which gave the judges judicial discretion to award death penalty or life imprisonment. This was one major step towards change in the Indian legal system as it led to the abolishment of mandatory death penalty.
India’s constitution is quite famous for its vagueness with respect to capital punishment. Had clauses like ‘cruel and unusual punishment’ and ‘protection of the rights for accused persons’ not been in force then the Supreme Court would have acted with a complete blank state.8
As per Section 354(3) of Criminal procedure code, “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case
of sentence of death, the special reasons for such sentence.” This basically states that life punishment is the normal punishment is capital cases however; capital punishment could be given by providing special reasons.
The question as to the constitutional validity of death penalty and judicial discretion to choose between capital punishment and life imprisonment was raised in the case of Bachan Singh vs State of Punjab.9 It was argued that capital punishment was unreasonable and violated Article 19 and 21 of the Constitution. Also, the power given to judges to decide whether life imprisonment or death penalty is to be awarded is totally unguided, that is there is no grounds stated to decide how the judges need to go about it, and arbitrary as well as violative of article 14 of the constitution.
This case brought about certain important issues which can be seen through Judge Bhagwati’s arguments. He placed emphasis on the fact that death penalty is completely unreasonable and if under certain circumstances it needs to be awarded then the onus lies on the State to prove that death sentence which deprives a person of his life is reasonable and will eventually serve some social purpose. The question of life and death is left to a judge, susceptible to value preferences and error or judgement like any other.10 It is at this juncture the constitutionality validity of laws with respect to death penalty comes under scrutinization.
Justice Bhagwati further went on to say that every judge will form a different opinion in a case depending on their social philosophies or value considerations and so on. Hence, on a matter of life and death such an extensive power should not be given to the judges. Through the above decision it can be seen that a doubt arises in the mind of certain judges with respect to the constitutional validity of death penalty.
Unfortunately, there is nowhere in the Constitution of India which clearly states that death penalty is unconstitutional. There is no doubt certain parts of the Constitution can be used to challenge the constitutional validity of capital punishment but it is evident that only specific categories of offence are awarded with capital punishment. But is this the notion we want to follow, that if a person takes away the life of another, he should repay back by giving his own life?
Moreover, in many instances the Courts have awarded death sentence by public hanging. In the case of Attorney General of India V. Lachmi Devi11 it was held that the execution of death sentence by public hanging is barbaric and violative of Article 21 of the constitution. It is true that the crime of which the accused have been found to be guilty is barbaric, but a barbaric crime does not have to be visited with a barbaric penalty such as public hanging.12
The position in India even at this point is favouring for death penalty. Apart from the reasons discussed above, it is imperative to look at other reasons as to why death penalty should not be used as a form of punishment.
As stated earlier, one of the reasons for allowing death penalty is to set a precedent with the intention to deter future crimes. The general idea being, that since society has a higher interest in preventing murder, it should use the strongest punishment available to deter murder and that is death penalty.13
One of the most common answer to such a justification for death penalty has been that death penalty has no more of a deterrent than a sentence of life in prison. There are two types of deterrence, specific and general.14 Specific deterrence is basically making the punishment so harsh; a particular offender should not recidivate in the future.15 General deterrence aims to make “an example” of an offender, so that others will learn their lesson and not commit a similar crime.16 But, Death penalty creates a negative atmosphere due to which likelihood of murder increases. Death penalty is not a deterrent as most people who commit murder don’t expect to be caught or they don’t weigh the future consequences of their act. Murders are committed in the heat of moment and in those moments no one is deterred by the death penalty law. In the United States of America, the murder rate in States that have the death penalty is higher compared to States without the death penalty.17 According to Death Penalty Information Center (DPIC) data from 1991 to 2011, States without the death penalty have had consistently lower murder rates compared to States with the death penalty.
Will the state allow a rapist to be raped as a form of punishment? Or torturing a torturer? Then why death penalty should be allowed for someone who took part in the act of murder. The notion eye for eye or life for life should not be endorsed by any society. The act of awarding death sentence plays more as an act of vengeance and that is not something a society should portray itself as.
Furthermore, death penalty is awarded unfairly and should not be used. The judges have a wide discretionary power to give out capital punishment without any rules or orders guiding them.
CONCLUSION
The latest law requires capital punishment to be awarded only in the cases of rarest of rare cases. There is a lot of ambiguity and lack of uniformity in this statement. In the case of Kishori v. State (NCT) of Delhi18, the Supreme Court awarded death penalty to the accused who had murdered three members of a family during the Sikh riots in Delhi. However, In the case of Raja Ram Yadav v. State of Bihar19, the Supreme Court held that in the case of a feud between Rajputs and Yadavs the retaliatory killings by Yadavs could not be held to be deserving of death penalty. These cases do not provide any proper understanding of what constitutes as ‘the rarest of the rare cases’. Due to lack of proper guidelines, there is arbitrariness of decision and leads to cruel and degrading of punishment.
Capital Punishment is cruel, degrading and disproportionate. As discussed earlier it does not act as a deterrent for future crimes. Moreover, Judges are in the end humans. They pass judgements based on evidence produced in court which can be misleading and to give death penalty makes it dangerous and opposed to the principles of proportionality.
Moreover, one of the arguments put forth by Justice Bhagwati in the case of Bachan Singh’s20 was that death penalty strikes most against the poor and deprived sections of society. One of the major reason being that most of the convicted people are poor and illiterate and don’t have proper resources to engage a good lawyer. To quote Justice O. Chinnappa Reddy, experience shows that the burden of capital punishment is upon the ignorant, the impoverished and the underprivileged.21
In conclusion, by allowing death penalty nothing is achieved except more death which defeats the purpose of trial. Instead a person should be made to spend the remainder of his life in prison and think about what he did.
INTRODUCTION
Today, we live in a world where the level of patience of the people has deteriorated over time. No more do people have the forbearance to accept certain forbidden practices. Thus, the society we live in has started using capital punishment as a means of justice. Death penalty for long has been a controversial subject. Many favour it on the basis to form a precedent for future crimes and those oppose it do so on the grounds of right to life. Over the course of many years, various research studies, debates and amendments have taken place with respect to death penalty. The question raised is why death penalty should not be used as deterrence to future acts of crime.
Death penalty has become more of a human rights issue. Yet, it seems to form a major part of the legal system of India. In such a situation the question arises that which crimes can be so heinous to take the life of the accused. How can we justify taking of the life of another for certain acts. Doesn’t it sound barbarous on the part of the Justice system to take the life of the accused, when the victim is already dead? This sounds more like the notion “one life for another”.
I seek to highlight the various arguments put forth by scholars as well as certain judgements which critique the capital punishment. I will provide the different views on abolishment of death penalty. However, before understanding the main reasons for such a punishment to be still prevalent, we must look at what is death penalty and when can it be awarded to a person?
Firstly, the most common definition of death penalty is “lawful infliction of death in the form of a punishment for certain wrongful acts.” This basically means that the natural life of a person can be cut short legally by taking recourse to law. As per Indian law, death penalty can only be awarded in the rarest cases. Although, many countries have now decided to abolish death penalty as a form of punishment, India has still continued to use it in certain cases.
It is safe to say that death penalty is not a modern concept. It has been present in our society since the early 18th century. The existence of death penalty can be seen in the executions undertaken by the King for non-compliance of orders passed him. As the legal system
developed, this form of punishment was incorporated in the Indian Penal Code, 1860 and has been in existence since then.
During the end of 19th century, human activists started to emerge arguing against the constitutional validity of death penalty all over the world. By 1986, 46 countries had abolished the death penalty for ordinary crimes.1 The main reason for such a drastic turn around was a better understanding of human rights.
POSITION IN INDIA
The major part of the Criminal Law, that is, The Indian Penal Code, 1860 provides for death sentence or life imprisonment. It must be noted that no section of the law makes in mandatory to award death sentence.
In India, the method of execution used for death sentence is hanging. The first case with respect to constitutionality of the Section 354(5) of the Criminal Procedure Code first came up in Deena v. Union of India.2 The main issue in this case was with respect to the constitutional validity of mode of hanging. Although the courts held that the mode of hanging was not violative of Article 21 of the Constitution, it was argued by Justice Bhagwati that Section 354(5) provided that when a convict is sentenced to death, it should be written that he be hanged by the neck till he is dead, was unconstitutional for violation Article 21.3
In the year 1980 during the Bachan Singh vs. State of Punjab 4 case, the Supreme Court repealed Section 303 of the Indian Penal Code which stated that ,” Whoever, being under sentence of 1[imprisonment for life], commits murder, shall be punished with death.”
This section was repealed due to its misuse by the lower courts which were sentencing people to death without any order or regulation. Ultimately this section was declared as unconstitutional as there should be no fixed or mandatory punishment for murder. In the case of Mithu vs. State of Punjab5, the constitutional validity of this section was challenged on the grounds of Article 14 (right to equality) and Article 21 (right to life). This case was considered as a landmark judgement as it gave clear reasons as to why this section was against the very interests of citizens of a nation.
In this case, the judges explained the reason for enactment of this Section which was to discourage assaults by life-convicts on the prison staff. This section forced the courts to amount death sentence to a person who committed murder while still undergoing life sentence irrespective of the argument put forth by them. This section divided the murderers into two categories – life convict murderers still undergoing life sentence and the rest of the murderers.6 At this point, even the Supreme Court could not come up with a rational justification for treating life-term prisoners differently from other murderers. Hence, this section was argued as being arbitrary. The Court further went on to state that if a distinction is to be created it should so be created in favour of the life-sentence prisoners as they face extreme pressure and strains and deserve more sympathy. It is necessary to look at each case, keeping all the factors such as age, mental disturbance and so on, differently. Hence, this proved that Section 303 was violating Article 14 that is right to equality.
Article 21 of the Indian Constitution states that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This Article guarantees to all the Indians a right to life. With respect to violation of this article, the Court looked into the Maneka Gandhi vs Union of India case, and stated that any procedure under Article 21 needs to be in accordance with due process of law.7 Therefore, the basic right of any accused person to be heard is violated under this section also it rendered Section 235(2) of the Criminal Code of Procedure meaningless.
Hence, all cases with reference to Murder were to be dealt under Section 302 which gave the judges judicial discretion to award death penalty or life imprisonment. This was one major step towards change in the Indian legal system as it led to the abolishment of mandatory death penalty.
India’s constitution is quite famous for its vagueness with respect to capital punishment. Had clauses like ‘cruel and unusual punishment’ and ‘protection of the rights for accused persons’ not been in force then the Supreme Court would have acted with a complete blank state.8
As per Section 354(3) of Criminal procedure code, “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case
of sentence of death, the special reasons for such sentence.” This basically states that life punishment is the normal punishment is capital cases however; capital punishment could be given by providing special reasons.
The question as to the constitutional validity of death penalty and judicial discretion to choose between capital punishment and life imprisonment was raised in the case of Bachan Singh vs State of Punjab.9 It was argued that capital punishment was unreasonable and violated Article 19 and 21 of the Constitution. Also, the power given to judges to decide whether life imprisonment or death penalty is to be awarded is totally unguided, that is there is no grounds stated to decide how the judges need to go about it, and arbitrary as well as violative of article 14 of the constitution.
This case brought about certain important issues which can be seen through Judge Bhagwati’s arguments. He placed emphasis on the fact that death penalty is completely unreasonable and if under certain circumstances it needs to be awarded then the onus lies on the State to prove that death sentence which deprives a person of his life is reasonable and will eventually serve some social purpose. The question of life and death is left to a judge, susceptible to value preferences and error or judgement like any other.10 It is at this juncture the constitutionality validity of laws with respect to death penalty comes under scrutinization.
Justice Bhagwati further went on to say that every judge will form a different opinion in a case depending on their social philosophies or value considerations and so on. Hence, on a matter of life and death such an extensive power should not be given to the judges. Through the above decision it can be seen that a doubt arises in the mind of certain judges with respect to the constitutional validity of death penalty.
Unfortunately, there is nowhere in the Constitution of India which clearly states that death penalty is unconstitutional. There is no doubt certain parts of the Constitution can be used to challenge the constitutional validity of capital punishment but it is evident that only specific categories of offence are awarded with capital punishment. But is this the notion we want to follow, that if a person takes away the life of another, he should repay back by giving his own life?
Moreover, in many instances the Courts have awarded death sentence by public hanging. In the case of Attorney General of India V. Lachmi Devi11 it was held that the execution of death sentence by public hanging is barbaric and violative of Article 21 of the constitution. It is true that the crime of which the accused have been found to be guilty is barbaric, but a barbaric crime does not have to be visited with a barbaric penalty such as public hanging.12
The position in India even at this point is favouring for death penalty. Apart from the reasons discussed above, it is imperative to look at other reasons as to why death penalty should not be used as a form of punishment.
As stated earlier, one of the reasons for allowing death penalty is to set a precedent with the intention to deter future crimes. The general idea being, that since society has a higher interest in preventing murder, it should use the strongest punishment available to deter murder and that is death penalty.13
One of the most common answer to such a justification for death penalty has been that death penalty has no more of a deterrent than a sentence of life in prison. There are two types of deterrence, specific and general.14 Specific deterrence is basically making the punishment so harsh; a particular offender should not recidivate in the future.15 General deterrence aims to make “an example” of an offender, so that others will learn their lesson and not commit a similar crime.16 But, Death penalty creates a negative atmosphere due to which likelihood of murder increases. Death penalty is not a deterrent as most people who commit murder don’t expect to be caught or they don’t weigh the future consequences of their act. Murders are committed in the heat of moment and in those moments no one is deterred by the death penalty law. In the United States of America, the murder rate in States that have the death penalty is higher compared to States without the death penalty.17 According to Death Penalty Information Center (DPIC) data from 1991 to 2011, States without the death penalty have had consistently lower murder rates compared to States with the death penalty.
Will the state allow a rapist to be raped as a form of punishment? Or torturing a torturer? Then why death penalty should be allowed for someone who took part in the act of murder. The notion eye for eye or life for life should not be endorsed by any society. The act of awarding death sentence plays more as an act of vengeance and that is not something a society should portray itself as.
Furthermore, death penalty is awarded unfairly and should not be used. The judges have a wide discretionary power to give out capital punishment without any rules or orders guiding them.
CONCLUSION
The latest law requires capital punishment to be awarded only in the cases of rarest of rare cases. There is a lot of ambiguity and lack of uniformity in this statement. In the case of Kishori v. State (NCT) of Delhi18, the Supreme Court awarded death penalty to the accused who had murdered three members of a family during the Sikh riots in Delhi. However, In the case of Raja Ram Yadav v. State of Bihar19, the Supreme Court held that in the case of a feud between Rajputs and Yadavs the retaliatory killings by Yadavs could not be held to be deserving of death penalty. These cases do not provide any proper understanding of what constitutes as ‘the rarest of the rare cases’. Due to lack of proper guidelines, there is arbitrariness of decision and leads to cruel and degrading of punishment.
Capital Punishment is cruel, degrading and disproportionate. As discussed earlier it does not act as a deterrent for future crimes. Moreover, Judges are in the end humans. They pass judgements based on evidence produced in court which can be misleading and to give death penalty makes it dangerous and opposed to the principles of proportionality.
Moreover, one of the arguments put forth by Justice Bhagwati in the case of Bachan Singh’s20 was that death penalty strikes most against the poor and deprived sections of society. One of the major reason being that most of the convicted people are poor and illiterate and don’t have proper resources to engage a good lawyer. To quote Justice O. Chinnappa Reddy, experience shows that the burden of capital punishment is upon the ignorant, the impoverished and the underprivileged.21
In conclusion, by allowing death penalty nothing is achieved except more death which defeats the purpose of trial. Instead a person should be made to spend the remainder of his life in prison and think about what he did.
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