The Editorial 22 Sept, 2022 - Procedure for Imposing the death sentence : Capital Punishment

22 Sep, 2022

1. Procedure for Imposing the death sentence : Capital Punishment

Theme : Executive & Judiciary

Related Paper : GS - 2

                     TABLE OF CONTENT

  1. Context
  2. Death Penalty
  3. Judiciary choosing among Life and Death Sentence
  4. Status of Death Penalty in Indian Context
  5. Key Points from SC 
  6. Arguments in favor of Death Penalty
  7. Arguments against Death Penalty:
  8. Road Ahead

Context :
The Supreme Court referred to a larger Bench issue relating to procedural norms for imposing the death sentence. 

Death Penalty :

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

Judiciary choosing among Life and Death Sentence :

  • In May 1980, when the Supreme Court upheld the constitutional validity of the death penalty in Bachan Singh’s case, a framework was developed for future judges to follow when they had to choose between life imprisonment and the death penalty.
  • At the heart of that framework was the recognition that the legislature in the Criminal Procedure Code had made it clear that life imprisonment would be the default punishment and judges would need to give “special reasons” if they wanted to impose the death sentence.
  • Through the 1980 framework — popularly but inaccurately known as the “rarest of rare” framework — the Supreme Court said that judges must consider both aggravating and mitigating factors concerning the crime and the accused when deciding if the death penalty is to be imposed.
  • The Supreme Court has repeatedly lamented the inconsistency in application of the Bachan Singh framework. Similar concerns have been expressed by the Law Commission of India (262nd Report).

Status of Death Penalty in Indian Context :

  • Prior to the Criminal Procedure (Amendment) Act (Cr PC) of 1955, the death penalty was the rule and life imprisonment an exception in India.

    • Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offenses.

  • After the amendment of 1955 courts were at liberty to grant either death or life imprisonment.

    • As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.

    • The situation has been reversed and a life sentence is the rule and death penalty an exception in capital offences.

    • Moreover, despite a global moratorium against the death penalty by the United Nation, India retains the death penalty.

    • India is of view that allowing criminals guilty of having committed intentional, cold-blooded, deliberate and brutal murders to escape with a lesser punishment will deprive the law of its effectiveness and result in travesty of justice.

  • In concurrence of this, a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 35th report 1967.

  • In India as per official statistics, 720 executions have taken place in India after it became independent in the year 1947, which is a minuscule fraction of the people who were awarded death penalty by the trial courts.

    • In the majority of the cases, death was commuted to life imprisonment and some were acquitted by the higher courts.

Key Points from SC  :

  • The Supreme Court in its reference stressed that a trial court must take into account “the social milieu, the age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, were relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused”.The intervention is seen as a major step in plugging gaps in the way in which trial courts award the death sentence.

Arguments in favor of Death Penalty:

  • In the 35th Report of Law Commission of India (1962), which was presented in 1967, the Law Commission favoured retaining the death penalty in the Indian Judicial System.

    •  It said that maintenance of law and order, absence of any empirical research and other similar factors, “India cannot risk the experiment of abolition of capital punishment”.

  • Death punishment serves as a deterrent and a “response to the society’s call for appropriate punishment in appropriate cases”.

Arguments against Death Penalty:

  • According to the Amnesty Report,At the end of 2021, more than two thirds of the world’s countries had abolished the death penalty in law or practice 

  • In the Indian context, where judgmental error is quite frequent and the quality of adjudication is not ensured, judicial abolition of death penalty required .

  • Indian society is still far from realizing the dream of an equal society.

    • Therefore, merit needs to be given to the case of people who were not raised in a suitable environment and were unable to instill appropriate ideas in their conscience.

  • Past 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 poor are most affected: In India,the poors are most affected than the rich 

  • The numbers of the uneducated and the illiterate sentenced to death outweigh those who are educated and literate. 

  • The legal assistance received by the poor facing serious charges is far from satisfactory. 

Road Ahead :

  • The Supreme Court’s decision to frame uniform guidelines for trial courts with regards to death sentencing is a welcome move and a huge step towards humanizing the process.
  • This scrutiny of the procedural fairness comes 42 years after the top court, in the Bachan Singh case, introduced the ‘rarest of rare’ safeguard.
  • The 2015 Law Commission Report on Death Penalty recommended doing away with death sentence, except in terror-related cases.
  • According to the report, more than 144 countries have abolished death penalty- either in law or in practice- indicating a globally declining trends in ‘active retentionism’.
  • Meanwhile, there is an increase in legislations imposing death penalty in India. Hence, raising the bar in imposing death sentences is a crucial step to balance between total abolition of death sentences and its active advocacy.
  • The Constitution Bench is expected to frame guidelines under which the courts can hold comprehensive investigation of various factors before sentencing.