PYQ ANCHORING
GS 2 : “The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society”. Illustrate with special reference to the expanding horizons of the right to life and personal liberty. [2023]
GS 2 : Right to privacy is intrinsic to life and personal liberty and is inherently protect ed under Article 21 of the Constitution. Explain. In this reference discuss the law relating to D.N.A. testing of a child in the womb to establish its paternity. [2024]
MICROTHEMES: Fundamental Rights
The recent conviction of Sanjay Roy for the rape and murder of doctor at Kolkata’s R G Kar Medical College and Hospital has sparked widespread public outrage. While the court sentenced Roy to life imprisonment, many are demanding the death penalty.
Death Penalty Status in India
1. Expansion Under the Bharatiya Nyaya Sanhita (BNS)
- India continues to use the death penalty, and its scope has expanded under the new Bharatiya Nyaya Sanhita (BNS), 2023.
- The number of offenses punishable by death has increased from 12 to 18 under the new criminal law.
2. Death Sentences in 2023
- In 2023, most death sentences (64 cases) were awarded for murder involving sexual offenses.
- There is often public demand for the death penalty in cases of sexual violence, particularly against women and children.
- This demand is sometimes influenced by cultural and religious perceptions of justice.
3. Justice Verma Committee Report (2013)
- The Justice Verma Committee (2013) examined sentencing laws and made key recommendations:
- Opposed the death penalty for rape cases, arguing that it would not effectively deter such crimes.
- Recommended removal of the marital rape exception, recognizing it as a form of sexual violence.
- However, the government did not implement these recommendations when amending laws in 2013.
SC Guidelines on Death Penalty and Mercy Petitions
1. Establishment of Dedicated Cells
- States and union territories must establish dedicated cells within their Home or Prison Departments to handle mercy petitions efficiently and within the prescribed timeframe.
- These cells will be managed by a designated officer, whose contact details must be shared with all prisons.
- An official from the Law or Justice Department will oversee legal compliance.
2. Information Sharing
- Prison authorities must promptly forward mercy petitions and relevant details, such as:
- Convict’s background
- Incarceration history
- Legal documents
- Police reports, FIRs, trial evidence, and court judgments
- The Home Department Secretary and the dedicated cell officer must receive these documents.
- Mercy petitions must be sent without unnecessary delays to the Secretariats of the Governor or President for further action.
3. Electronic Communication
- To enhance efficiency, all communication should be conducted electronically (via email) except in cases requiring confidentiality.
4. Record Maintenance on Death Sentence Cases
- Sessions Courts must maintain records of death sentence cases and ensure their prompt listing in the cause list upon receiving orders from the High Court or Supreme Court.
- Notices must be issued to State Public Prosecutors or investigation agencies to ascertain the status of any pending legal remedies, including:
- Appeals
- Review petitions
- Mercy pleas
5. Execution Warrant Protocol
- There must be a mandatory 15-day gap between the issuance of an execution warrant and its implementation.
- Convicts must be informed of their right to legal representation, and copies of the warrant and the issuing order must be provided immediately.
- Legal assistance must be provided promptly if the convict requests to challenge the warrant.
6. State Government Responsibility
- The State Government must apply for an execution warrant as soon as the death penalty becomes final and enforceable.
THE TWO SIDES OF ARGUMENTS
| Arguments | In Favor of Death Penalty | Against Death Penalty |
| Retribution | Seen as just retribution for murderers. | Violates the right to life guaranteed by the Indian Constitution. |
| Utilitarianism | Conveys that the societal welfare outweighs the deprivation of life of the criminal. | Life imprisonment offers a chance for rehabilitation, which the death penalty does not. |
| Deterrence | Serves as a deterrence to potential offenders. | Studies show the death penalty has no significant deterrent effect; global opinion favors abolition. |
| Public Safety | Safeguards the public against the possibility of release of a murderer. | Innocent individuals could be executed, especially by special or military courts under counter-terrorism laws. |
| Humaneness | Considered the least common and not harsh or inhumane method of execution. | State-sanctioned executions must be as comfortable and painless as possible, per the Indian Constitution. |
| Discrimination | — | Report indicates around 76% of death row convicts belong to lower and backward castes, suggesting discriminatory practices. |
Way Forward: A More Just and Humane Approach
1. Ensuring Fair Sentencing
The Supreme Court has emphasized the need for a uniform and thoughtful approach when sentencing individuals to death. Before imposing the ultimate punishment, courts should examine all possible alternatives, ensuring justice is not rushed but carefully considered.
2. Following Supreme Court Guidelines
Lower courts must strictly follow the Supreme Court’s ruling in Manoj and Ors. vs State of Madhya Pradesh (2022). This ensures that those facing the death penalty receive a fair, humane, and well-informed hearing.
3. Rethinking the Death Penalty
The Law Commission of India (2015) recommended abolishing the death penalty, except in terror-related cases. With over 144 countries having abolished capital punishment in law or practice, India too must reflect on its global and moral standing on this issue.
4. Addressing Social Inequality
The justice system must acknowledge the structural discrimination that disproportionately affects marginalized communities. A 2016 study revealed that 76% of death row prisoners belonged to Scheduled Castes, Scheduled Tribes, Other Backward Classes, or religious minorities. Reform must ensure that justice is not biased against the vulnerable.
5. Reforming Outdated Laws
India has taken steps to modernize its criminal laws by replacing colonial-era legislation with the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Bill. These reforms should focus on protecting constitutional rights and ensuring that the justice system prioritizes fairness over retribution.
#BACK2BASICS : CONSTITUTIONAL VALIDITY OF DEATH PENALTY
Judicial Evolution
The Supreme Court of India has upheld the constitutionality of the death penalty, emphasizing its application in the “rarest of rare” cases to prevent its arbitrary use.
| Case Name & Year | Key Issue | Judgment | Significance |
| Jagmohan Singh v. State of U.P. (1973) | Whether the death penalty violates Articles 14, 19, and 21 of the Indian Constitution | Supreme Court upheld the death penalty, ruling that it does not violate fundamental rights as long as it is imposed through a fair, just, and reasonable procedure | Established that capital punishment is constitutional if proper legal procedures are followed |
| Rajendra Prasad v. State of U.P. (1979) | Consideration of social justice and reformation in death penalty sentencing | Court emphasized that the death penalty should be awarded only when the crime demonstrates extreme depravity and there is no possibility of reformation | Shifted focus toward reformative justice and suggested restricting capital punishment |
| Bachan Singh v. State of Punjab (1980) | Whether the death penalty is unconstitutional under Article 21 | Court upheld the death penalty but introduced the “rarest of rare” doctrine, stating that it should only be imposed when no other alternative is viable | Established the “rarest of rare” doctrine, which remains the standard for awarding capital punishment in India |
| Machhi Singh v. State of Punjab (1983) | Clarification of “rarest of rare” cases | Court listed five categories where the death penalty may be justified, including the manner of commission, motive, magnitude, personality of the victim, and impact on society | Provided further clarity on when the death penalty should be applied |
| Mithu v. State of Punjab (1983) | Challenge to mandatory death sentence under Section 303 of IPC | Court struck down Section 303 IPC, ruling that a mandatory death penalty violates Article 21 | Reinforced that discretion is necessary in sentencing and that blanket mandatory death sentences are unconstitutional |
| Deena v. Union of India (1983) | Whether the method of execution (hanging) violates Article 21 | Supreme Court upheld hanging as a constitutional method, stating that it is not inhumane | Confirmed that execution by hanging is a legally valid method in India |
| Triveni Ben v. State of Gujarat (1989) | Delay in execution and its impact on human rights | Supreme Court held that prolonged delay in execution amounts to inhuman treatment and violates Article 21 | Established that unnecessary delays in carrying out the death penalty can make it unconstitutional |
| Dhananjoy Chatterjee v. State of W.B. (1994) | Application of the death penalty in cases of heinous crimes | Court upheld the death penalty, stating that it serves as a deterrent for heinous crimes like rape and murder | Reinforced that capital punishment is justified in cases where the crime shakes societal conscience |
| Shatrughan Chauhan v. Union of India (2014) | Rights of death row convicts in cases of delay | Supreme Court ruled that undue delay in executing a death sentence is a valid ground for commutation to life imprisonment | Strengthened safeguards for death row convicts by allowing them to seek relief in case of delays |
| Mukesh & Anr. v. State (Nirbhaya Case) (2017) | Whether the death penalty is appropriate for brutal rape and murder cases | Supreme Court upheld the death sentence for the accused, citing the brutality of the crime and its impact on society | Reaffirmed the “rarest of rare” doctrine and its application in heinous crimes |
Law Commission Reports
The Law Commission of India has examined the death penalty in various reports:
- 35th Report: Recommended retention of the death penalty, citing India’s unique circumstances.
- 187th Report: Focused on the mode of execution, suggesting a more humane approach.
- 262nd Report: Advocated for the abolition of the death penalty for non-terrorism-related offences.
