EDITORIAL ANALYSIS : The death penalty and humanising criminal justice

Source: The Hindu

Prelims: Pardoning power of president, death penalty by different courts., article 21, Provisions for Death Penalty etc.

Mains GS Paper II: Government policies and interventions for development of various sectors and issues arising out of them, role of Judiciary, Death penalty and Arguments Related to it.

ARTICLE HIGHLIGHTS

• The Supreme Court of India is ordinarily expected to follow the path laid out by the written text of law and the binding precedents.
  • But CJI of Indiahas ushered in that rare moment by taking several bold initiatives to correct certain grave anomalies that have persisted in operation of the death penalty law.

INSIGHTS ON THE ISSUE

Context

Death Penalty:

• Capital punishment or death penalty, is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence.
• It is the highest penaltyawardable to an accused.
• Generally, it is awarded in extremely severe cases of murder, rapes, treason etc.
• The death penalty is seen as the most suitable punishment and effective deterrent for the worst crimes.

Process of Death Penalty:

Arguments in Favour of the Death Penalty:

• Deterrence: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter murderers from killing people.
• Retribution: People should get what they deserve in proportion to the severity of their crime. This argument states that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime.

Arguments Against the Death Penalty:

• Deterrence Ineffective: The statistical evidence doesn’t confirm that deterrence works. Some of those executed may not have been capable of being deterred because of mental illness or defect.
• Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC):rapes continue to happen and in fact, the brutality of rapes has increased manifold, which question death penalty as an effective deterrent.
• Execution of the Innocent: The most common argument against capital punishment is that sooner or later, innocent people may get killed, because of mistakes or flaws in the justice system.
• Amnesty International: As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.
• Developed countries: In most of the developed countries death has been abolished as a form of punishment.
• No Rehabilitation: Capital punishment doesn’t rehabilitate the prisoner and return them to society.
• Chance to reverse his mistakes:Death penalty does not give another chance to person to work on his mistakes.

Death row cases taken by CJI U.U Lalit:

• Anokhilal vs State of M.P. (2019)
• Irfan vs State of M.P., Manoj and Ors vs State of M.P.
• Prakash Vishwanath case
• Review petition order in the Mohd. Firoz cases.

New Policies and uniformity in death penalty cases:

• ‘Framing Guidelines: Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences’, a decision authored by the three judge Bench.
• Reference to a larger Bench: Step in the direction of death penalty sentencing justice reform.

Need for reforms:

• Legislative limitation: flowing from Section 354(3) in the Code of Criminal Procedure
• Rarest of rare case: judicial limitation flowing from the ‘rarest of rare’ case; and ‘oral hearing.

Issue with present sentencing:

• Places the convict at a hopeless disadvantage:Accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction.

Supreme Court’s rulings on the Death Penalty:

• Jagmohan Singh v. State of UP 1973 case:

1. SC held that according to Article 21deprivation of life is constitutionally permissible if that is done according to the procedure established by law.
2. Death sentence imposed after a trial in accordance with legally established procedures under Cr.PC and the Indian Evidence Act 1872 is not unconstitutional under Article 21.

• Rajendra Prasad v. State of UP 1979 case:

If the murderous operation of a criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.

• Bachan Singh v. the State of Punjab 1980 case:

SC propounded the ‘rarest of rare cases’ according to which death penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed.

• Machhi Singh v. State of Punjab 1983 case:

The Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not.

• Manoj and Ors. vs State of MPs 2022 case:

1. The Supreme Court took important steps towards realizing an ‘individualized sentencing enquiry as envisaged by the court in Bachan Singh.
2. Socioeconomic circumstanceshave been recognised as a mitigating factor by courts in various death penalty cases.

Way Forward

• New Guidelines: The Constitution Bench may come up with new guidelines under which the trial courts themselves can hold a comprehensive investigation into factors related to upbringing, education and socio-economic conditions of an offender before deciding the punishment
• Manoj and Ors. vs State of M.P: Trial court must take into account the social milieu, the educational levels, whether the accused had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct.
• Bold initiative of the three judge Bench might have made a positive mark:The  future shape of the mission to humanize criminal justice will ultimately depend upon composition of the larger Bench and inclination of the judiciary.
• Taking into consideration western critical criminal law scholars: Making a distinction between ‘early guilt’ that is regressive, prosecutory and punitive, and ‘mature guilt’ that is developmental and progressive
• The Law Commission in 2015, headed by Justice A P Shahproposed to abolish capital punishments. However, the commission had made the proposal only to non-terrorism case.
• Article 21: The fundamental right to life and dignity enshrined under Article 21 of the Constitution also means the right to die with dignity.

QUESTION FOR PRACTICE

1. Multiplicity of various commissions for the vulnerable sections of the society leads to problems of overlapping jurisdiction & duplication of functions. Is it better to merge all commissions into an umbrella human rights commission? Argue your case.(UPSC 2018)

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