‘Death sentence’ is Govt. sanctioned punishment by hanging. The debate is still on whether death penalty is deterrent punishment or is retributive justice or serves an incapacitative goal. General Assembly of United Nations in its 65thSession (2010-11) has stated, “there is no conclusive evidence of the deterrent value of the death penalty”. This supports the view Professor Roger Hood of Oxford University whose lecture on “ Towards Global Abolition of the Death Penalty: Progress and Prospects,” provides an up-to-date survey and analysis of the extent to which and reasons why more and more countries have in recent years embraced the goal of universal abolition of capital punishment, first laid down by a resolution of the United Nations General Assembly in 1971. His concluded with the remark, “While the road is still rocky and the end is not yet in sight, abolitionists have reason to be confident that the final destination is approaching when all countries will have agreed that the killing of captive criminals should be outlawed forever”. The key perception that death penalty acts as a deterrent against heinous and diabolical crimes has been nullified by many recent studies and statistics that has proved that there is no slightest credible evidence that capital punishment reduces the rate of homicide.
Michigan became the first English speaking territory to abolish capital punishment in 1847. By now more than 100 add countries have joined the league. UK abolished it in 1973, Canada in 1976, France in 1981, Australia in 1985, Italy in 1994, Spain and South Africa in 1995. Although the United States still executes people, but at the state level 38% of states have abolished the death penalty. A 2009 study on ‘Do Executions Lower Homicide Rates: The Views of Leading Criminologists’ concluded that an overwhelming majority of top US criminologists didn’t accept that the death penalty had any special deterrent effect on murder crimes.
India still hands down death penalty because it is constitutionally valid in India. Death penalty came under challenge for the first time in 1973 in the case of Jagmohan Singh vs State of UP when Supreme Court has held that the deprivation of life is constitutionally permissible if it is done in accordance with the due process of law and that capital sentence is per-se not unreasonable .
Subsequently, Justice Krishna Iyer in 1979 ( Rajendra Prasad vs. State of UP) held that death penalty is violative of articles 14, 19 and 21 of the Constitution of India, however, in heinous crimes “special reasons necessary for imposing death penalty must relate, not to the crime as such but to the criminal”.
A year later Supreme Court in Bachan Singh vs. State of Punjab, overruling its earlier decision in Rajendra Prasad (Supra) said that death penalty is not violative of articles 14, 19 and 21 of the Constitution and enunciated that it should be awarded only in ‘rarest of rare’ case and courts must render “special reasons” while sending a man to the gallows. Court explained ‘special reasons’ means ‘exceptional reasons’ founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal”. Subsequently in Machhi Singh vs. State of Punjab (1983) Supreme Court laid down broad outlines of the circumstances when death sentence should be imposed.
An interesting twist came when Supreme Court took contrary view in Ravji @ Ram Chandra vs. State of Rajasthan (1996) when it held, “it is the nature and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment in a criminal trial”. This led to direct conflicts with the observations made in Bachan Singh (Supra). The conflict was laid to rest when Supreme Court clarified that circumstances pertaining to the criminal should be given full weightage. The prosecution must prove, as a precondition for awarding the death penalty, that reform and rehabilitation of the criminal would not be possible. It cautioned that ‘rarest of rare’ dictum serves as a guideline and entrenches the policy that life imprisonment is the rule and death punishment is an exception.
Unfortunately, in absence of a straight-jacket formula, ‘ rarest of rare’ doctrine remained judge centric dictum. Subjectivity and ambiguity on the subject let the debate continue on death sentence. It finds support from a recent observation by the Supreme Court Bench (2013) that there was lack of evenness in the sentencing process. It also noted that ‘rarest of rare case’ doctrine had been inconsistently applied implying thereby that the aggravating and mitigating circumstances (balance sheet) approach had interpreted inappropriately, an approach which Bachan Singh (Supra) did not endorse.
Pioneer of human rights jurisprudence in India, late Justice PN Bhagwati, while writing the sole dissenting view (Minority view) in Bachan Singh (Supra) has said, “I am of the view that Section 302 of the Indian Penal Code in so far as it provides for imposition of death penalty as an alternative to life sentence is ultra vires and void as being violative of Articles 14 and 21 of the Constitution since it does not provide any legislative guidelines as to when life should be permitted to be extinguished by imposition of death sentence. I would therefore strike down Section 302 as unconstitutional and void in so far as it provides for imposition of death penalty as an alternative to imprisonment for life…”
Doyen of civil liberties Justice V R Krishna Iyer had a philosophical answer on the question of death sentence which he wrote in an article, “Life is given by God and can be taken away only by God. Execution by the state amounts to inhumanity. Gandhi’s country must set an example by abolishing the capital punishment. Even if supported by a judicial verdict the state should not hang a human being”.
Studies and statistics have brought out an interesting fact that India’s murder rate has declined, falling from 4.6 per 100,000 people in 1992 to 2.7 per 100,000 in 2013.It has coincided with a decline in the rate of executions, strengthening the debate that we need to eradicate crime and not the criminals, and that criminals can be reformed. The Law Commission in India in its 262nd report (published in August, 2015) has also recommended abolishing the death penalty for all crimes other than terrorism-related offences and waging war. Former president of India A.P.J. Abdul Kalam had also supported abolition of the death penalty. With India’s emerging recognition in the world, the country would find it tough to justify death sentence.
(The writer is a Supreme Court lawyer. Email: firstname.lastname@example.org(Published on 18th September 2017, Volume XXIX, Issue 38)