Death Penalty Abolition Debate
What are the standards for awarding death sentence, the President’s ‘Mercy’ power?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Death Penalty, Pardoning Power
Why in the News?
- The President of India has rejected a Mercy Petition to pardon a Pakistani terrorist.
- The accused was one among the Lashkar-e-Tayyeba terrorists who attacked the Red Fort in 2000, killing two soldiers and a civilian guard.
What is the process of Mercy Petition?
Judiciary on Mercy Petitions:
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About Presidents’ Pardoning Powers under Article 72
- According to Article 72, the President of India has the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit, or commute the sentence of any person convicted of any offense: In cases where the punishment or sentence is by a Court Martial;
- According to Article 161, the Governor of a State has the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit, or commute the sentence of any person convicted of any offence against any law relating to matters under the executive power of the State.
- In the recent Supreme Court Ruling of 2021, the apex court held that the Governor of a state can pardon prisoners, including those on death row, even before they have served a minimum of 14 years of their prison sentence.
Did you know?
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Cases as specified by Art. 72
In all cases where the punishment or sentence:
- is by a court-martial.
- is for an offence against any law relating to a matter to which the executive power of the Union extends.
- is a sentence of death.
Nature of the Pardoning Power
- The pardoning power of the president is not absolute.
- At a procedural level, the apex court in Epuru Sudhakar & Anr. v. Government of Andhra Pradesh (2006) has held that the President’s power must be exercised based on the aid and advice of the Council of Ministers and can be challenged on multiple grounds including that relevant material was not considered, the power was exercised based on political considerations, or there was no application of mind.
- This has not been discussed by the Constitution but is the practical truth. Further, the constitution does not provide for any mechanism to question the legality of decisions of presidents or governors exercising mercy jurisdiction.
PYQ:[2014] Instances of President’s delay in commuting death sentences have come under public debate as denial of justice. Should there be a time specified for the President to accept/reject such petitions? Analyse. |
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Death Penalty Abolition Debate
First Nitrogen Hypoxia Execution in the United States
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Nitrogen Hypoxia
Mains level: Read the attached story
Introduction
- Alabama’s recent execution of a prisoner by nitrogen hypoxia has stirred debate and controversy, marking a historic shift in execution methods after four decades.
- While some argue for the method’s effectiveness, others condemn it as cruel and inhumane.
Science behind Nitrogen Hypoxia
- Nitrogen Inhalation: Smith, 58, underwent execution by inhaling pure nitrogen, depriving the body of oxygen needed for vital functions.
- NIOSH-Approved Respirator: The state of Alabama used an industrial-grade respirator, specifically a “NIOSH-approved Type-C full facepiece supplied air respirator,” delivering nitrogen to the inmate.
- Deprivation of Oxygen: While nitrogen is harmless in normal air composition, inhaling it exclusively leads to oxygen deprivation, causing eventual death.
Execution Duration
- Unexpected Prolongation: Despite claims that nitrogen gas would cause unconsciousness within seconds and death within minutes, Smith’s execution took approximately 22 minutes.
- Witness Accounts: Onlookers reported distressing scenes of Smith writhing, convulsing, and gasping for air during the extended execution.
Legal and Ethical Questions
- Constitutional Concerns: Smith’s lawyers attempted to halt the execution, arguing it violated the constitutional ban on cruel and unusual punishment.
- Experimental Execution Method: Critics contended that Smith was being used as a test subject for an untested method, highlighting the lack of adequate research and procedures.
- Federal Court Rulings: Despite legal challenges, federal courts, including the US Supreme Court, rejected attempts to block the execution, raising concerns about the state’s approach.
Death Penalty Landscape in the US
- Highly Charged Issue: The death penalty remains a polarizing political topic in the United States, drawing contrasting views on its justice, deterrence, and ethical considerations.
- Questionable Deterrence: Research indicates no conclusive evidence that capital punishment acts as a deterrent to crime, challenging one of its main justifications.
- Execution Methods’ Challenges: Lethal injection, the most common method, faces controversies, from botched executions to reliability issues.
- Racial and Economic Bias: Critics argue that capital punishment carries a risk of wrongful prosecution, with studies revealing racial and economic biases in its application.
Conclusion
- As the United States witnesses the first nitrogen hypoxia execution, the controversy surrounding the method raises broader questions about the ethics, constitutionality, and efficacy of capital punishment.
- With legal battles ongoing and public opinion divided, the execution of Kenneth Smith serves as a focal point for re-evaluating the nation’s approach to the death penalty and the methods employed.
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Death Penalty Abolition Debate
Central Committee to find alternative for Death by Hanging
Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Death Penalty Debate
Central Idea: The government informed the Supreme Court that it is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.
Background Information
- Death by hanging is a mode of execution in India.
- In March, the Supreme Court had asked the government to provide data on a more acceptable method of executing prisoners other than death by hanging.
- A petition was filed challenging the constitutionality of death by hanging as a mode of execution.
Death Sentences imposed so far
- 539 prisoners were on death row in India at the end of 2021, the highest since at least 2016.
- In 2022, trial courts imposed 165 death sentences, the highest in over two decades.
- Gujarat courts imposed 51 death sentences in 2022, the highest among all the States.
- Uttar Pradesh and Jharkhand also recorded significant increases in death sentences imposed by trial courts in 2022.
- From the 67 decided cases by the High Court’s involving 101 prisoners in 2022, three prisoners had their death sentences confirmed, 48 prisoners saw their death sentences commuted to life imprisonment, 43 were acquitted of all charges and six had their cases remitted to the trial court.
- In the 11 cases decided by the Supreme Court involving 15 prisoners in 2022, 5 prisoners were acquitted of all charges; the death sentences for eight were commuted to life imprisonment; and the death penalty was confirmed for two.
Death Penalty by Hanging: Present Status
- Section 354 (5) of the Code of Criminal Procedure mandates that a person sentenced to death shall “be hanged by the neck till he is dead”.
- In India, the Air Force Act, 1950, the Army Act 1950, and the Navy Act 1957 say that execution has to be carried out either by hanging by the neck until death or by being shot to death.
- In 2018, the Centre had filed an affidavit supporting death by hanging as a mode of execution.
- The Centre had not found the method of execution “barbaric, inhuman and cruel” compared to firing squads and lethal injections.
Various initiatives to alter death by hanging
- Ensuring dignified death: The government is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.
- Panel formation: The Chief Justice of India had suggested the formation of a committee with experts from national law universities, professors of law, doctors, and scientific persons.
- Humane and painless method: The court indicated that it may even direct an alternative method of executing capital punishments if it was proved that there was a more “humane” method of execution.
- Voices for psychological tests: The SC has asked for psychological evaluation of condemned prisoners by expert doctors, and access for them by mitigating investigators.
Concerns raised by Judiciary
- The Chief Justice had observed that better data was needed to relook at death by hanging.
- The court wanted to know the-
- Impact of the sentence of death by hanging
- Pain caused
- Period of actual death, and
- Availability of resources for hanging a person
Judiciary at loggerheads
- The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India Case judgment and the Bachan Singh case reported in 1980.
- The government argued that the mode of execution is a “matter of legislative policy” and the death penalty is awarded only in the rarest of rare cases, with only three executions between 2012 and 2015.
Debate over Death Penalty
| Arguments in favor of death penalty | Arguments against death penalty |
| – Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life. | – Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind. |
| – Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general. | – Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent. |
| – Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts. | – Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents. |
| – Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people. | – Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing. |
| – Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime. | – Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths. |
| – Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc. | – Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation. |
| – Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society. | – Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority. |
Other issues with such executions
(a) Socio-Economic Factors
- The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
- The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
- These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.
(b) Delayed Execution
- The law provides for a long process before the execution of the convicts actually takes place.
- The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
- Their trials are often cruelly forced to endure long periods of uncertainty about their fate.
Way forward: Law Commission recommendations on death penalty
The Law Commission of India in its 262nd Report (August 2015) recommended that:
- Death penalty be abolished for all crimes other than terrorism-related offences and waging war.
- Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
- It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.
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Death Penalty Abolition Debate
SC asks govt. for data on Death by Hanging
Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Death Penalty Debate
The Supreme Court has asked the Centre to provide data which may point to a more dignified, less painful and socially acceptable method of executing prisoners other than death by hanging.
Central idea
- The Supreme Court is hearing a petition challenging the constitutionality of death by hanging as a mode of execution.
- The petition argued that there is a need to evolve a “humane, quick and decent alternative” to hanging, which he termed as “cruel and barbarous” compared to lethal injection used in the United States.
Quest for painless execution
- Justice Narasimha noted that there was literature suggesting that “hanging is closest to painless”.
- In 2018, the Centre filed an affidavit supporting death by hanging and stated that it had found the method of firing squads and lethal injections as “barbaric, inhuman and cruel”.
- The government traced statistics of “botched-up” administration of lethal injections to condemned prisoners in the United States for 110 years to prove its point.
Status of death penalty in India
- Section 354 (5) of the Code of Criminal Procedure mandates that a person sentenced to death shall “be hanged by the neck till he is dead”.
- In India, The Air Force Act, 1950, The Army Act 1950, and The Navy Act 1957 say that execution has to be carried out either by hanging by the neck until death or by being shot to death.
Why in news now?
- The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India judgment and the Bachan Singh case reported in 1980.
- The government argued that the mode of execution is a “matter of legislative policy” and the death penalty is awarded only in the rarest of rare cases, with only three executions between 2012 and 2015.
Debate over Death Penalty
Arguments in favor:
- Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
- Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
- Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
- Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
- Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
- Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
- Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.
Arguments against:
- Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
- Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
- Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
- Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
- Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
- Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
- Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
- Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.
Other issues with such executions
(a) Socio-Economic Factors
- The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
- The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
- These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.
(b) Delayed Execution
- The law provides for a long process before the execution of the convicts actually takes place.
- The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
- Their trials are often cruelly forced to endure long periods of uncertainty about their fate.
Way forward: Law Commission recommendations on death penalty
The Law Commission of India in its 262nd Report (August 2015) recommended that:
- Death penalty be abolished for all crimes other than terrorism-related offences and waging war.
- Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
- It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.
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Death Penalty Abolition Debate
Reframing the Guidelines of Capital Punishment
Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Issues over Capital punishment
Context
- CJI, Justice Lalit had displayed unique sensitivity to the plight of the condemned ‘death row prisoners’ in Anokhi Lal vs State of M.P. (2019), Irfan vs State of M.P., Manoj and Ors vs State of M.P. (May 2022) and impart corrections in the form of creative directions/guidelines.
What is capital punishment?
- Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
- It should be distinguished from extrajudicial executions carried out without due process of law.
- The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.
Background of capital punishment
- Bachan Singh case: In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
- Punishment according to fair procedure: It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
- Rarest of rare case: This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.
What is “rarest of rare” case?
- The principles of what would constitute the “rarest of rare” were laid down by the top court in the landmark judgment in ‘Bachan Singh’.
- Two prime questions, the top court held, may be asked and answered:
- First: is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?
- Second: are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according to maximum weightage to the mitigating circumstances which speak in favor of the offenders?
Why existing guidelines are problematic?
- Arbitrary sentencing: There has long been a judicial crisis in death penalty sentencing on account of unprincipled sentencing, arbitrariness and worrying levels of subjectivity. The crisis has been acknowledged by the Supreme Court, the Law Commission of India, research scholars and civil society groups.
- Crime-centric nature: Death penalty sentencing has been, by and large, crime-centric. This approach goes against the requirements imposed on sentencing judges by the Supreme Court in Bachan Singh (1980).
- Nature of crime a dominant consideration: An important reason for the breakdown is that factors relating to the crime the nature of the crime and its brutality are often dominant considerations, and there is barely any consideration of mitigating factors.
- Little discussion on mitigating factors: There has been very little discussion on bringing the socioeconomic profile of death row prisoners as a mitigating factor into the courtroom.
What are new guidelines through recent judgement?
- Considering Potential mitigating circumstances: The focus here is on reframing ‘Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences’, a decision authored by the three judge Bench (the current CJI and Justices Ravindra Bhat and Sudhanshu Dhulia, September 19, 2022).
- Seeking remedies beyond Legislative and judicial limitation: Such a reference to a larger Bench would constitute yet another step in the direction of death penalty sentencing justice reform such as the legislative limitation flowing from Section 354(3) in the Code of Criminal Procedure; judicial limitation flowing from the ‘rarest of rare’ case; and ‘oral hearing’ after all the remedies to the condemned are exhausted.
- Mitigating factors are important: Justice Ravindra Bhat did not stop at paying lip service to ‘rarest of rare’ case limitation, but also required the sentencing court to take the trouble of balancing the aggravating factors and mitigating factors, as per the full Bench ruling.
- The following observations of the Court are significant: “It is also a fact that in all cases where imposition of capital sentence is a choice of sentence, aggravating circumstances would always be on record, and would be part of [the] prosecutor’s evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction.
- Granting real and meaningful opportunity: The three judge Bench decision seems to have gone beyond sentencing incongruities when it observes: “This court is of the opinion that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to formal hearing to the accused/convict on the issue of sentence.”
Conclusion
- Free, fair and transparent opportunity has been given to accused while awarding the death sentence. Supreme court of India has rightly laid down the guidelines through judgement for sentencing the capital punishment to prevent the arbitrary use and misuse of capital punishment.
Mains Question
Q. What are the issues with death penalty guidelines in India? What are the new guidelines by SC regarding capital punishment?
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Death Penalty Abolition Debate
Death Penalty: SC moots fair hearing
Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Death penalty debate
The Supreme Court has referred to a Constitution Bench the question of how to provide accused in death penalty cases a “meaningful, real and effective” hearing of their mitigating circumstances before a trial judge.
Death Penalty: A backgrounder
- Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
- It should be distinguished from extrajudicial executions carried out without due process of law.
- The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.
When is it awarded?
- The term “Capital Punishment” stands for most severe form of punishment.
- It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.
- While the definition and extent of such crimes vary, the implication of capital punishment has always been the death sentence.
Special factors on the death penalty jurisprudence in India
(a) Increase in Sexual Offences
- The report on death penalty published by NLU Delhi shows that the rate of awarding capital punishment to the offences of rape with murder is much higher than other offences.
- There is no doubt that rape is one of the most heinous crimes.
(b) Sedition and waging War against India
- India has seen many cases of treason, terrorism and seditious activities.
- It is in fact the most vulnerable state for such crimes.
Judicial observations related to Death Penalty
The Supreme Court has always said that the death sentence should be given rarely.
Judgments against:
(a) Mithu vs State of Punjab (1983):
- The Supreme Court ruled that the mandatory death penalty is unconstitutional.
- It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case.
- The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murders.
(b) State of Punjab vs Dalbir Singh (2012):
- Similarly, the Supreme Court ruled that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional.
(c) Channulal Verma vs State of Chhattisgarh (2018):
- In Channulal, the Supreme Court, through Justice Kurian Joseph noted that the time was appropriate to review the constitutionality of the death penalty and take into consideration reformative aspects of punishment
Judgments in favour:
- In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
- It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
- This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.
Avenues available to a Death-Row Convict
- Confirmation by HC: After a trial court awards the death penalty, the sentence must be confirmed by a High Court. The sentence cannot be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired.
- Review Petition: If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition.
- Curative Petition: If the review petition is rejected, the convict can file a curative petition for reconsideration of the judgment.
- Mercy Petition: Under Article 72 of the Indian Constitution, the President shall have the power to grant pardons, reprieves, respites, or remissions of punishments or to suspend, remit or commute the sentence of any convicted person.
Debate over Death Penalty
Arguments in favor:
- Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
- Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
- Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
- Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
- Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
- Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
- Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.
Arguments against:
- Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
- Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
- Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
- Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
- Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
- Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
- Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
- Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.
Other issues with such executions
(a) Socio-Economic Factors
- The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
- The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
- These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.
(b) Delayed Execution
- The law provides for a long process before the execution of the convicts actually takes place.
- The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
- Their trials are often cruelly forced to endure long periods of uncertainty about their fate.
Way forward: Law Commission recommendations on death penalty
The Law Commission of India in its 262nd Report (August 2015) recommended that:
- Death penalty be abolished for all crimes other than terrorism related offences and waging war.
- Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
- It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.
Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible
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Death Penalty Abolition Debate
Procedural gaps in death penalty sentencing
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Plugging the gaps in death penalty sentencing
Context
In a judgment delivered last month, the Supreme Court, in Manoj & others v. State of MP, embarked on a significant attempt to reform the administration of the death penalty.
Background: Crisis in the death penalty sentencing
- There has long been a judicial crisis in death penalty sentencing on account of unprincipled sentencing, arbitrariness and worrying levels of subjectivity.
- The crisis has been acknowledged by the Supreme Court, the Law Commission of India, research scholars and civil society groups.
- Crime-centric nature: Death penalty sentencing has been, by and large, crime-centric.
- This approach goes against the requirements imposed on sentencing judges by the Supreme Court in Bachan Singh (1980).
The framework laid down in the Bachan Singh case
- Take into account factors relating to crime and the accused: This framework made it binding for the sentencing judges to take into account factors relating to both the crime and accused and assign them appropriate weight.
- Judges couldn’t decide to impose the death penalty only on the basis of the crime.
- The background of the accused, the personal circumstances, mental health and age were considerations a sentencing judge had to account for.
- Judges were required to weigh “mitigating” and “aggravating” factors to ascertain if a case was fit for the death sentence and also determine if the option of life imprisonment was “unquestionably foreclosed”.
Why there is a crisis in death penalty sentencing?
- The four decades since Bachan Singh have shown us that this framework has been followed more in breach.
- There is utter confusion across all levels of the judiciary on the requirements of the framework laid down in the Bachan Singh case and its implementation.
- Nature of crime a dominant consideration: An important reason for the breakdown is that factors relating to the crime — the nature of the crime and its brutality — are often dominant considerations, and there is barely any consideration of mitigating factors.
- Little discussion on mitigating factors: There has been very little discussion on bringing the socioeconomic profile of death row prisoners as a mitigating factor into the courtroom.
Significance of the SC judgment in Manoj & others v. State of MP
- Efforts to plug the gap: The judgement identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it.
- Recognising reformation: A striking part of the judgment is its commitment to recognising reformation as integral to the Indian criminal justice system, especially death penalty sentencing.
- Procedural threshold: The judgment is clear that certain procedural thresholds must be met for sentencing to be fair and explicitly rejects (once again) the idea that death sentences can be determined solely on crime-based considerations.
- The verdict recognises that aspects of the accused’s life, both pre-offence and post-offence in prison, are relevant.
- As practical steps in this process, the judgment asks courts to call for reports from the probation officer as well as prison and independent mental health experts.
- Right of the accused to present mitigating factors: The right of the accused to present mitigating factors and rebut the state, if necessary, is also recognised.
- Psychological and philosophical aspect taken into account: There is now overwhelming evidence from psychology that criminality cannot just be reduced to terrible decisions by individuals in the exercise of their free will.
- All our actions are a result of a complex web of biological, psychological, and social factors and that understanding has a very significant bearing on discussions on criminality and punishment.
Challenges
- Implementation issue: Apart from this issue of implementation, even if detailed and high-quality sentencing information is to come into our courtrooms, a bigger challenge awaits.
- The judicial treatment of sentencing information is a Pandora’s box that will inevitably have to be opened.
- Requirement for normative basis: The Supreme Court will have to provide a rigorous normative basis for consideration of these factors.
- In the absence of such foundations, death penalty sentencing will continue to be unprincipled and sentencing judges are not going to understand the need for this wide range of sentencing information.
Conclusion
The significance of last month’s judgment, authored by Justice Ravindra Bhat, is that it takes this problem head-on. It identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it.
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Death Penalty Abolition Debate
Supreme Court frees Perarivalan
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Various articles mentioned in news
Mains level: Death penalty
The Supreme Court has invoked its extraordinary powers to do complete justice under Article 142 of the Constitution and ordered the release of A.G. Perarivalan in former PM assassination case.
Among the factors that sustained Perarivalan’s long battle was the determination and commitment of his mother, Arputham Ammal, who emerged as the face of an anti-death penalty movement, and the sympathy and empathy that he received from people from all walks of life.
What is the news?
- A Bench led by Justice L. Nageswara Rao, in its judgment, took into consideration Perarivalan’s long jail term for over 30 years to order his release.
- The court held that the TN Council of Ministers’ advice to pardon Perarivalan was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
- The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161.
Note: As per Article 161, the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends
What branded Perarivalan as a murderer?
- He had bought two 9 volt battery cells on behalf of the bomber.
- These were used to make the bomb explode.
- This confession statement taken under Section 15(1) of TADA to establish his link with the assassins and his knowledge and role in the assassination.
Why was this a case for Governor?
- Perarivalan was not a death sentenced convict.
- Earlier, the apex court had commuted his death penalty to life sentence for murder in 2014.
- The Governor had no business forwarding the pardon plea to the President after sitting on it for years together.
- Had this been a death penalty, the case would have been different.
Why did the Supreme Court intervene?
- Governor’s delay to decide Perarivalan’s pardon for more than two years has compelled the apex court to employ its constitutional powers under Article 142 to do justice to Perarivalan.
- After all, the court said, a Governor’s non-exercise of power under Article 161 of the Constitution was not immune from judicial review.
What is Article 142?
- Article 142 provides discretionary power to the Supreme Court.
- It states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
- Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.
- It is usually used in cases involving human rights and environmental protection.
Other legal aspects of this pardon
- The Court dismissed the Centre’s argument that the President exclusively, and not the Governor, had the power to grant pardon in a case under Section 302 (murder) of the Indian Penal Code.
- The court had said that such a contention would render Article 161 a “dead-letter”.
- This would rather create an extraordinary situation whereby pardons granted by Governors in murder cases for the past 70 years would be rendered invalid.
Back2Basics:
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Death Penalty Abolition Debate
A new track for capital punishment jurisprudence
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Rarest of rare case
Mains level: Paper 2- Capital punishment jurisprudence
Context
A recent trend in the evolution of jurisprudence around the death penalty in India may reset judicial thinking around sentencing and have long-term ramifications in the awarding of capital punishment.
New thinking in the jurisprudence around capital punishment
- Capital punishment once delivered by the court of sessions (“sentencing court”) is required under law, specifically Chapter 28 of the Code of Criminal Procedure, to be confirmed by the jurisdictional High Court (“confirming court”).
- Over the last six months or so, while dealing with appeals against confirmation of the death sentence, the Supreme Court of India has examined sentencing methodology from the perspective of mitigating circumstances more closely.
- The Court has also initiated a suo motu writ petition (criminal) to delve deep into these issues on key aspects surrounding our understanding of death penalty sentencing.
- Bachan Singh vs State of Punjab (1980), the leading case on this point, calls for mitigating and aggravating circumstances to be balanced against each other and laid down the principle that the death penalty ought not to be awarded unless the alternative of life imprisonment is “unquestionably foreclosed”.
- It is also an equally well-established legal principle that in a sentencing hearing, the accused must necessarily be provided with sufficient opportunity to produce any material that may have bearing on the sentencing exercise.
- When read in conjunction with the ratio decidendi of the Bachan Singh case, it is incumbent upon the sentencing court and the confirming court to ensure that the question of reform and rehabilitation of a convicted person has been examined in detail for these courts to come to a definitive conclusion that all such options are unquestionably foreclosed.
Lack of judicial uniformity
- A report by the National Law University Delhi’s Project 39A (earlier known as the “Centre on the Death Penalty”) titled ‘Matters of Judgment’ found that there is no judicial uniformity or consistency when it comes to awarding the death sentence.
- In the report titled ‘Death Penalty Sentencing in Trial Courts’ (also authored by Project 39A), findings reported from a study of cases involving death sentencing between 2000 and 2015 in Delhi, Maharashtra and Madhya Pradesh have showed that courts have been lax in assessing the aspect of reformation while undertaking the sentencing exercise.
- The Court, in Mofil Khan vs State of Jharkhand (2021), held that the “the State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused.
- Undoubtedly, the onus has been placed on the State to lead evidence to show that no reformation is possible and for the sentencing courts to be satisfied that a thorough mitigation analysis was done before the death sentence is awarded.
Mitigation investigation
- For a complete mitigation investigation, professionals trained in psychology, sociology and criminology are required in addition to legal professionals.
- Taking cognisance of the value of a holistic approach to mitigation investigation, the Court in Manoj & Ors vs State of Madhya Pradesh (2022) issued directions to the State to place before the court all “report(s) of all the probation officer(s)” relating to the accused and reports “about their conduct and nature of the work done by them” while in prison.
- The order also directs that a trained psychiatrist and a local professor of psychology conduct a psychiatric and psychological evaluation of the convict.
Conclusion
The intervention of the Supreme Court of India in, hopefully, framing guidelines around incorporation of a mitigation analysis and consideration of psycho-social reports of the prisoner at the time of sentencing is timely and necessary.
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Death Penalty Abolition Debate
President has no role to play in Perarivalan’s plea: SC
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Pardoning Powers
Mains level: Pardoning Powers in India
The Supreme Court has disagreed with the Central government’s suggestion that the court should wait till the President took a call on former PM’s assassination case convict A.G. Perarivalan’s mercy plea referred to him by the Tamil Nadu Governor for a decision.
Why in news now?
- The Bench of the Supreme Court said that the Centre had missed the obvious question posed by the court by a mile.
- The pertinent question was whether the Governor had, in the first place, the authority to refer the mercy plea to the President.
- Under Article 161 of the Constitution, the Governor was bound by the aid and advice given by the TN Council of Ministers in September 2018.
- The Governor prima facie had no authority to transfer the mercy plea to the President.
What does Pardon mean?
- A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.
Why need a Pardon?
- Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
- Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
- Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.
What does Article 161 say?
- Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
- The Governor’s decision will be subject to judicial review by the constitutional courts.
Supreme court’s observations
- The Constitution Bench in 2015, in a majority decision, had held that the States cannot unilaterally remit the sentences of life convicts in cases investigated by a Central agency under a Central law.
- The assassination case was probed by the CBI.
- In compliance with the 2015 verdict, the Tamil Nadu government wrote to the Centre in 2016, proposing the grant of remission to the convicts. The State wanted the Centre to concur.
- After a wait of over two years, the Centre rejected the State’s proposal, saying this was an unparalleled act in the annals of crimes committed in this country.
Arguments in Perarivalan’s petition seeking pardon
- Perarivalan had been pleading for release citing that he was 19 when he was arrested.
- He was the only male child of his parents, there were no records of criminal antecedents, and that he had excellent conduct in his entire prison life.
- His petition also cited UG and PG degrees, and that he was the university topper, Gold medalist in diploma in DTP, and that he completed more than eight diploma and certificate courses during his prison term.
- His probation officer gave a report about lapses in recording his confession statement that handed out maximum punishment in his case.
Basis of his innocence
- Perarivalan cannot be called innocent before the law as he continues to be a convicted prisoner serving imprisonment.
- He was accused of having bought two battery cells for the LTTE man who masterminded the conspiracy.
- He was sentenced to death based on this crucial confession statement.
Significance of the convicts’ release
- The release of seven convicts is a demand raised by not only the ruling party of TN but the main opposition too.
- All TN politicians voiced that the judiciary should be able to reform and let them live as good citizens to uphold the high values of reformatory justice and restitution.
Back2Basics: Pardoning Powers in India
- Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
- A similar and parallel power vests in the governors of each state under Article 161.
(1) President
- Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
- The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning which are mandated by law.
- Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
- Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
- Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for a Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
- Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
- Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.
(2) Governor
- As per Article 161, the Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
- It must be relating to a matter to which the executive power of the state extends.
- Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.
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Death Penalty Abolition Debate
Death Penalty
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 21
Mains level: Paper- Examining the death penalty
Context
On April 22, a Bench of the Supreme Court of India, led by Justice U.U. Lalit, decided to critically examine the routine and abrupt way in which trial judges often impose the death penalty on convicts.
Individualistic approach
- The challenge before the Court in the instant case of Irfan vs State of Madhya Pradesh was to identify the mitigating circumstances and to ensure a convict-centric approach so that the imposition of capital punishment becomes rarer, fairer, and principled.
- According to the Court, “a ‘one size fit for all’ approach while considering mitigating factors during sentencing should end”.
- Mitigation expert: The Bench indicated the need for mitigation experts to assist trial courts in reaching a correct conclusion on whether one should be sent to the gallows or not.
- The Court seemed to think that an individualistic approach that examines the social, economic, emotional, and genetic components that constituted the offender rather than the offence, would go a long way in evolving a just and judicious sentencing policy.
- An analysis of the possible reasons to avert the death penalty is reflected in a series of recent verdicts such as Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021).
- These reasons might include socio-economic backwardness, mental health, heredity, parenting, socialisation, education, etc.
Background of the humane and reformist framework
- The special reason: According to Section 354(3) in the Code of Criminal Procedure, while imposing the capital punishment, the judge should specify “the special reasons” for doing so.
- It was in Bachan Singh vs State of Punjab (1980) that the Constitution Bench suggested a humane and reformist framework in the matter.
- Bachan Singh requires the trial courts not only to examine the gravity of the offence but also the condition and the ‘reformability’ of the accused.
- Not unconstitutional: The Court, in Bachan Singh, refused to declare the death penalty as unconstitutional.
- It abundantly implied that no person is indubitably ‘irreformable’.
- It had the effect of practically undoing the death penalty provision, if taken in its letter and spirit.
- Person-centric approach: This person-centric approach, for its materialisation, needs a different judicial acumen that recognises the convict in her multitudes.
Is the Bachan Singh doctrine followed?
- The Bachan Singh principle was followed more in its breach than in compliance even by the Supreme Court.
- In Ravji vs State of Rajasthan (1995), the Supreme Court said that it is the nature of the crime and not the criminal which is germane for deciding the punishment.
- Several other cases also were decided by ignoring the Bachan Singh doctrine, as noted by the Supreme Court itself in Santhosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) and Rajesh Kumar vs State (2011).
- This egregious judicial error will have to be kept in mind while the Court revisits the issues related to mitigating factors and individual-centered sentencing policy in the Irfan case.
- Shortcomings of Bachan Sing: Bachan Singh did not, in concrete terms, elaborate on the mitigating factors and the methods to gather them to avert the death penalty.
- Nor did it explain the issues such as burden of proof and standard of proof in detail.
Issue of misuse and overuse
- Misuse of sedition provision: The Indian experience shows that whenever the Court tries to dilute the harshness of penal provisions by a balancing approach, instead of striking down the provision, the instrumentalities of the state (including the police, the prosecution and the court) continue to overuse or misuse the provisions.
- The Supreme Court endorsed the validity of the sedition law (Section 124A of the Indian Penal Code) with a rider that it could be invoked only when there is an incitement to violence.
- But the state seldom acts based on interpretation of the law.
- Many were booked for the charge of sedition since then for mere words, innocent tweets or harmless jokes.
Social implications
- Disproportionate effect on the poor: In India, as elsewhere, the poor, rather than the rich, are sent to the gallows.
- Ineffectiveness of legal assistance: In Williams vs Taylor (2000), the U.S. Supreme Court said that failure of the defence lawyer in highlighting the mitigating factors that could lead to avoidance of capital punishment makes the legal assistance ineffective.
- Therefore, it infringes constitutionally guaranteed rights.
- In the Indian scenario, the legal assistance received by the poor facing serious charges is far from satisfactory.
- Mitigating factors not placed: And in the matter of sentencing too, the mitigating factors are either not placed before the trial court or not persuaded adequately to convince the trial judge to avoid the death penalty.
Way forward
- Taking empirical lessons from the fate of Bachan Singh, the Supreme Court may have to now ask the more fundamental question posed and negatived in Bachan Singh — the question of the constitutional validity of death penalty.
- Comprehensive report: The Court, in the instant case, will have to evolve a legal device for procurement of a comprehensive report dealing with the socio-economic and hereditary backgrounds of the accused from experts in the fields of social work, psychiatry, psychology, anthropology, etc.
- Violation of Article 21: The Court may have to revisit Bachan Singh itself in so far as it refused to declare the death penalty as violative of the right to life envisaged under Article 21 of the Constitution.
- Across the world, 108 nations have abolished death penalty in law and 144 countries have done so in law or practice, according to the Amnesty Report of 2021.
- Judicial errors: In the Indian context, where judgmental error is quite frequent and the quality of adjudication is not ensured, what is required is a judicial abolition of death penalty.
Conclusion
The present matter will have to be referred to a larger Bench, with a view to rectify the foundational omission in Bachan Singh — of not explicitly declaring capital punishment as unconstitutional.
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Death Penalty Abolition Debate
Issue of handing down the death sentence in a cursory manner
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 39A
Mains level: Paper 2- Debate on death penalty
Context
Last week, a little over 13 years after the blasts in 2008 (in July) in Ahmedabad, Gujarat, the designated court to conduct a speedy trial decided the fate of 78 of the accused people. Within a week, the court sentenced 38 of 49 people to death.
The debate on the death sentence
- The death sentence grants the state the monopoly of violence.
- This monopoly is justified by claiming that such a step prevents crime or that it is a measure of long-due justice.
- Use in ‘rarest of rare’ case: Fundamentally, ‘rarest of rare’ is a standard that allows a court of law to use public sentiment as a judicially reliable standard in handing out the death sentence.
- Proportionality test: India’s carceral criminal jurisprudence requires a court to calculate proportionality between crime and punishment.
- But a death sentence is a sentence that goes beyond the confines of these calculations to deprive a person of their life — committing an act whose central value itself is immeasurable.
- The impossibility of reform, the heinous nature of the crime, the shock to the public conscience, none of these things sufficiently justify the right of a fallible institution to take someone’s life.
Mitigating arguments
- After the verdict is delivered in any criminal trial, lawyers make what are called ‘mitigating arguments’ — essentially to contextualise the convict as an individual and not as the accused.
- Unlike other trial stages where a court adjudicates between competing legal identities of an accused, the complainant, etc., in mitigation, the court hears evidence of a person’s humanity.
- Hearing mitigating circumstances requires — however temporarily — for the trappings of distance and formality to be stripped away so that a court may see a person instead of a convict.
The issue in the above case
- In this case, first, the court orally convicted ‘en masse’ several of the accused instead of declaring the charges proved against them separately.
- The prosecution argued that the defendants should argue for mitigation before it would even disclose which convicts it intended to seek the death sentence.
- The role attributed to each of the accused was different.
- By equating them for mitigation purposes (individual circumstances were unaccounted for and context and circumstances were considered to be the same) and handing down a mass death sentence, the court has only opened the door for greater misuse of a questionable power to end a life without any oversight.
Conclusion
A permanent sentence requires us to assume that our institutions are infallible and user-proof. To cast this as a simple ‘penalty’ ignores what it truly does — and did in this case; it negates the individual for the final time.
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Death Penalty Abolition Debate
Governors can pardon death row: Supreme Court
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Pardoning powers
Mains level: Read the attached story
The Supreme Court has held that the Governor of a State can pardon prisoners, including death row ones, even before they have served a minimum of 14 years of a prison sentence.
SC Judgement: Section 433-A CrPC
- The Governor’s power to pardon overrides a provision in the Code of Criminal Procedure — Section 433A.
- This article mandates that a prisoner’s sentence can be remitted only after 14 years of jail.
- Such power is in the exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government, the apex court observed.
- Section 433-A of the Code cannot and does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution.
What does one mean by Pardon?
- A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.
Why need Pardon?
- Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
- Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
- Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.
Pardoning powers in India
- Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
- A similar and parallel power vests in the governors of each state under Article 161.
[I] President
- Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
- The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning that are mandated by law.
- Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
- Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
- Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
- Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
- Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.
Cases as specified by art. 72
- in all cases where the punishment or sentence is by a court-martial;
- in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
- in all cases where the sentence is a sentence of death.
[II] Governor
- Similarly, as per article 161: Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
- It must be relating to a matter to which the executive power of the state extends.
- President can grant pardon to a person awarded a death sentence. But a governor of a state does not enjoy this power.
Nature of the Pardoning Power
- Not absolute: The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
- Aid and advice: The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
- Constitution is silent on this: This has not been discussed by the constitution but is the practical truth. Further, it does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
- Judicial review applicable: But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
Some traditions
- It is important to note that India has a unitary legal system and there is no separate body of state law.
- All crimes are crimes against the Union of India.
- Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
- While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.
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Death Penalty Abolition Debate
Mercy petition
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Power of the President to pardon under Article 72
Mains level: Paper 2- Delay in carrying out death penalty and issues associated with it
The article highlights the issue of delay in carrying out the dealth penalty and issues associated with it.
Review of India’s position on the death penalty
- The delay in carrying out the death penalty is one of the reasons to review India’s position on capital punishment.
- The debate on the efficacy of the death penalty in reducing crime has been going on for several decades.
- A few years ago, the issue of abolishing capital punishment was raised in the Rajya Sabha but was rejected by a voice vote.
- The then Minister of State for Home Affairs stated that the government was not contemplating abolition of the death penalty.
- In 2015, the Law Commission of India proposed abolishing the death penalty and sought the comments of States and Union Territories on the subject.
- India figures among the 56 nations in the world that have retained the death penalty.
Issue of delay in carrying out the punishment
- The prolonged detention of death row convicts in prison is not just inhuman but also against the canons of justice.
- The delay coupled with long years of solitary confinement leads to immense psychological trauma.
- It is small wonder that the courts tend to take a lenient view and reduce the sentence when such cases of prolonged years of detention come before them.
- A time frame needs to be fixed for the President to dispose of mercy petitions.
- Delays in investigations, court hearings, and administrative steps to be taken after the final verdict need to be inquired into, and responsibility fixed.
Consider the question “Against the backdrop of delay in carrying out the dealth penalty in India, take the review of India’s position on the abolition of death penalty.”
Conclusion
With the changing time, we must change and so do the way we punish people. Capital punishment should be abolished in the country and until then, the inordinate delays in carrying out punishment should be avoided.
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Death Penalty Abolition Debate
Death Penalty in India (Annual Statistics Report 2019)
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Project 39A
Mains level: Capital Punishment and its justification
Trial courts in India delivered 102 death sentences in 2019, over 60% fewer than the 162 death sentences passed in 2018.
Highlights of the Report
- In 2019, fewer death sentences overall were delivered.
- 1 out of 2 sentences for sexual violence-murder; in 3 out of 4 sexual violence-murder death sentences, children were the killer’s victims.
- The courts were, however, especially unforgiving of murders that involved sexual violence — the proportion of death sentences imposed for murders involving sexual offences was at a four-year high in 2019 at 52.94%.
- 2019 also saw the highest number of confirmations by High Courts in four years; 17 out of the 26 confirmations (65.38%) were in offences of murder involving sexual violence.
- The Supreme Court, primarily during the tenure of the previous CJI Gogoi, listed and heard 27 capital cases, the most in a year since 2001.
Project 39A
- These are the headline findings in the fourth edition of The Death Penalty in India: Annual Statistics, published by Project 39A at the National Law University (NLU), Delhi.
- Project 39A is a research and litigation initiative focussed on the criminal justice system, and especially issues of legal aid, torture, death penalty, and mental health in prisons.
- The report tracked news of death sentences awarded by trial courts published online by news organisations in English and Hindi.
- It checked these numbers against judgments uploaded to websites of High Court and district courts.
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