College: Lloyd law college
If you spend even a couple of weeks listening or reading about people inside maximum security prisons or death rows, convicted killers, you'd understand some people simply deserve to die and we have an obligation to execute them. But that is a simple and emotion driven take on it while we have to see through the eyes of legality and justice. So the wrong questions asked us about punishment is “what good will it do” the right question to ask us is “what bad has been done”. Opponents of the death penalty often called abolitionists attack it principally on two grounds. Number one is that we might mistakenly execute the innocent. Number two is that it's biased against the marginalized.
There are a number of reasons for abolition I'll just stress some of the most important ones from my point of view one is that
· If we look at the sheer numbers, it's astoundingly error ridden, Between Jan of 2000 and June 2015 supreme court imposed 60 death sentences, subsequently admitted that it had flawed in 15 of them.
· It unfairly targets the poor and marginalized due to lack of legal measures, legal aid further cementing the theory that the individuals without the capital gets the punishment.
The studies that have been done to demonstrate that the death penalty is not a deterrent and frankly, that's something any law practitioner can speak from experience because of what we’ve seen and witnessed over the years and we've also met with and interviewed criminals and the accused and it is crystal clear that deterrence would not be a factor in any of the crimes that these people commit.
Even in United States of America the country virtually seen as a standard symbol for democratic countries, application of the death penalty is completely unfair in terms of along racial lines and along economic lines and other dimensions another attribute or defect in the capital punishment system is the likelihood of error being made. We've seen over the last 15 or 20 years since the Innocence Project was first established something in the range of about a hundred and fifty individuals who have been exonerated from Death sentences because errors were made during the trial or and or in the investigation that led to the trial.
EVOLUTION OF CAPITAL PUNISHMENT IN INDIA
Before going to the analysis of whether or not we need capital punishment let us first understand the evolution of capital punishment in India now first of all if we pick up the first five years after the Constitution was made we will see that death penalty was a normal punishment for murder. If a person commits murder, they would award him with a death sentence or death penalty. This practice saw an alteration in 1955 when the session judge was given a discretionary power to give either of two sentences, either capital punishment or life imprisonment. Now again, in the year 1973, crpc was amended and parliament made it mandatory that if the judges awarding of capital punishment to a person who has committed murder. He has to show the special reasons. Now later on, we would see in Bachhan v state of Punjab the Supreme Court ruled that death penalty could be imposed only in the rarest of the rare cases. So this is how the capital punishment in India has taken its present form now.
Let us now understand what are the protections guaranteed under the Constitution? The first one is article 21. So the Maneka Gandhi case held that article 21 affords protection not only against executive actions but also against legislations. So it means that a person can be deprived of his life even under capital punishment only if there is a law which is just, fair and also reasonable so
Article 21 of Indian constitution states that no person shall be deprived of his life or personal Liberty except according to the procedure established by the law. Now. The second protection is provided under article 72 of the Indian constitution, which says that the president can pardon even death sentence while the governor in the state cannot pardon that sentence. Even when the pardon is denied by the president, there is a scope for judicial review and judicial review can be conducted if the presidential decision not to pardon the death sentence is arbitrary, irrational and discriminatory. Now again, Article 134 provides that there is a right of appeal from The High Court verdict to the supreme court. And this is applicable in any case where capital punishment was imposed on an accused in reversal of an acquittal order.
So from all these constitutional Provisions article 21 article 72 which provides for the pardoning power of the president scope for judicial review and also article hundred and thirty-four which provides for right of appeal all this constitutional Provisions points out to the fact that death row Prisoners has been humanized in the Constitution itself
What does it mean for the theory of reformation?
It is stated Society has the obligation to reform a person and to provide a better opportunity of living, but under capital punishment he's denied his right to life. So how does he get an opportunity for a better living or another opportunity to live his life? Secondly, if we consider the objective that is deterrence, there is no sufficient proof to show that death penalty operates as a better alternative than the life imprisonment. That means it is not possible to prove that death penalty can be the greater returns than life imprisonment or death.
Justice J. S. Verma panel set up by central Govt. -
The panel suggested that “seeking such a punishment would be a regressive step in the field of sentencing and reformation”. Furthermore, the committee criticized the lack of reformatory and rehabilitation policies in jails and juvenile homes, they suggested rigorous punishment for life as the superior alternative.
I do believe that the death penalty should be abolished and there are several reasons for this with the principal one is that it doesn't actually serve the purposes that its Advocates claim it does. There have been innumerable studies including in India, the national law University has a death penalty project, that has demonstrated that there is absolutely no deterrent effect whatsoever from the existence of the death penalty. Not only is there no effect that actually in figure shown that if you take the three decades from 1980 to 1990 there were 10 executions, murders went up dramatically. 1990 to 2000 there were 8 executions. Murders went up again 2000 to 2010 there was only one execution, and the murders went down so I mean seeing as much the numbers mean anything they mean the opposite so this is really the first problem that deterrence doesn't work. Secondly, it has a lot of arbitrariness subjectivity in the whole application with that sentence rarest of the rare means. Each judge can decide what they consider rare, the jurisprudence is far from consistent. And on top of that you do find in many of the overwhelming numbers of people executed since Independence, many of them have had poor legal representation. They from disadvantaged background. Finally the other problem we have with the death penalty apart from the lack of deterrence and the fact that it's also arbitrary unevenly applied is the fact that when you when you really get down to it, it's an emotional judgment you feel kill somebody because you participated in killing or killed himself. In other words. The state is being reduced to the level of the terrorists or the killer whom you're trying to punish.
You're basically saying that we will take a life that he took a life. This is the eye to eye for an eye philosophy that Gandhi has infamously talked about.
Mahatma Gandhi (Indian lawyer) -
He himself has gone on record to say that the death penalty is a wrong form of punishment. He opposed the death penalty. And the reason he gave was that if the person is likely to have been not as guilty as thought or innocent, then the death penalty is a penalty which is completely reversible either any extenuating circumstances. The death penalty once implemented is the reversible the act is over the person is dead. It cannot be corrected. Now, he did not know when he said that that he is himself going to be the victim of an assassination. He did not know there would be a person who would be accused of having killed him if he had known that he would have repeated it for sure. But the fact is his family, his sons, asked the then governor general to not proceed with the death sentence.
A.P.J Abdul Kalam (Former president of India)
As of a few months prior to his passing away president Kalam had said to the law commission what he felt on the subject to the death penalty. He had strong reservations about the death penalty. He did not like that kind of a provision in our statute book and the record shows very clearly where he stood as president when death penalty cases came to him for pardon, so we know his stand on this matter.
Vrindra Grover (Human rights activist)
Years later the power of state to extinguish life stands entrenched while women and girls in india continue to struggle to live a life of freedom, safety and dignity as equal persons.
Only few arguments could be made in favor of such an extreme law,
Bachhan Singh case implemented the “Rarest of the rare” scenario for the capital punishment and the fact that only 4 people has been executed in the last 13 years speaks volumes
Hanging of Ajmal Kasab and yakub memom strongly affirms India’s commitment to prevention of terrorism
The last and most convincing statement ever made in favor of capital punishment was made by Nirbhaya’s mother Asha Devi after the hanging of the victims said that “Indian women will undoubtedly feel safer from now on”
Politicians like Smriti Irani (Union Minister) and Arvind Kejriwal (C.M. Delhi) hail convict hangings as it’s a shortcut way in which they are let off from accountability as they are the ones holding the offices which are burdened with the responsibility and duty to not allow such heinous atrocities to occur in the first place.
If history has told us anything it is that by capital punishment is a fruitless exercise being enacted before the public opinion and that fruitless exercise is about the hollow claim of punishment by death being determined there is no doubt whatsoever that the awful hideous and dire incidents of terror will continue the world over irrespective of whether a person here or a person there is hanged. Hanging individuals' howsoever complicit in Acts of Terror will not eradicate terror, what is going to deteriorate terror is the determined efforts of government to see where terror and these hideous motivations and intent behind these crimes come from. To see how it emanates and why it emanates and go after those causes and meet the fundamentals of investigation and not find a shorthand script to end a particular case and satisfy the bloodlust of people.
If we consider the second and the third objectives of the punishment in the Indian Judiciary that is reformation and deterrence that sentence does not provide a solution to both of these objectives or theories. Also considering the recommendations of the law commission and also the irreversible character of the death sentences. It is better that we abolish death sentences in India.