This article is written by Anjaly Ann Joseph from Government Law College, Ernakulam.
There was a time in history when public hangings and guillotines were the most common methods of punishment. The general intention behind this was not just about punishing the perpetrator but it was about inducing fear and obedience in everyone who witnessed it. The brutal executions from the fascist regimes still haunts the memory of the people.
Our country inherited this practice from our erstwhile colonial masters, who were known for notorious capital punishments; from having 222 offences including impersonation and damaging of Westminster Bridge that could attract capital punishment to decapitating even the queen of the country, it is an undeniable fact that British history is incomplete without capital punishment. However when they employed this practice in India it was their display of authority and a means to evoke submission in our countrymen, but meanwhile it interesting to know that Britain today have jointed the league of abolitionist nations of death penalty. Yet much to the regret of many, India has not liberated itself capital punishment.
JURISPRUDENCE BEHIND DEATH PENALTY
It was the political philosopher Thomas Hobbes who defined punishment as “an evil inflicted by a public authority on him that has done, omitted which is judged by the same authority to be a transgression of the law”. Maintaining social order and peace is the main purpose behind punishment. Different theories of punishment clarifies different perspectives to punishment such as preventive, deterrent, retributive and reformative are the major approaches to punishment.
Preventive Theory: Focuses on prevention of crime by the disablement of the offender by impersonation, exile etc. The basic proposition behind this theory is “not to avenge for the crime but to prevent it”.
Deterrence Theory: Focuses on the role of punishment as to deter the wrongdoer from repeating the offense and a potential wrongdoer from committing a crime.
Retributive Theory: Works on the principle “Eye for an eye, tooth for a tooth”. It focuses on avenging the criminal for the harm they have committed.
Reformative Theory: Primarily deals with reforming the offender and bringing them back to the society as a better person. This approach to punishment is gaining momentum and we have brought in new initiatives like open prison to facilitate rehabilitation.
Death penalty serves both the purposes of retribution and deterrence. Capital punishment is traditionally seen as way by which the state and society vent their revenge on the offender and it also serves as an example for the potential offenders thereby deterring them.
Death Penalty is not prohibited to any International Treaty so far, but the matter given to its gravity was touched upon in various conventions. International Covenant on Civil and Political Rights (ICCPR) is the most important treaty relating to death penalty.
Article 6 of the ICCPR states:
“1. Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed
only for the most serious crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can
only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this
article shall authorize any State Party to the present Covenant to derogate in any way from any
obligation assumed under the provisions of the Convention on the Prevention and Punishment
of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years
of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.”
Customary law put forward several pre requisites of imposing death penalty like right to fair trial and right to seek pardon and commutation of sentence. It also mandates that capital punishment should be limited to serious offences only. Along with this, International Organisations are pushing for abolition of the same and till date more than two third of the countries have abolished death penalty in law and practice.
DEATH PENALTY IN INDIA; DOCRINE OF RAREST OF RARE CASES
Capital punishment in India is limited to most serious and heinous offences. This method of restricted death penalty to rarest of rare cases was laid down by Supreme Court in the case of Bachan Singh v. State of Punjab. The constitutional bench of Supreme Court by a majority of 4:1, explicitly declared death penalty constitutional and crafted the said doctrine of restricting it to rarest of the rare cases when there is no other alternative option left.
In Machhi Singh v. State of Punjab, Supreme Court laid down the test for finding rarest of the rare cases. The pointers include the way of commission, nature of the homicide, ruthlessness and gravity of the crime and rationale behind the commission. In Santhosh Kumar Bariyar v. State of Maharashtra, it was laid down that life imprisonment is the rule and death penalty is the exception. The issue before court was the validity of section 303 of Indian Penal Code, which mandates death penalty for all offenders serving life imprisonment. Ultimately, the Court struck down this section as unconstitutional.
Even after forty one years ,the ratio laid down in the Bacchan Singh case continues to prevail and the courts have shown no inclination to re-examine the rarest of rare doctrine.
‘COLLECTIVE CONSCIENCE’ IN DEATH PENALTY
Heinous and barbaric crimes that shock the nation are followed by public outcry for capital punishment or instant justice. More often than not, death penalty is demanded for the sake of collective conscience of society. While diverging to that claim, it is worthy to note that capital punishments to Nirbhaya convicts and instant revenge on Disha incident have not stopped rape. However even courts have turned to the collective conscience doctrine, while imposing death penalty. Well, people advocating death penalty on the basis of collective conscience is one issue and court pandering to these calls ignoring the individual right is another. Now, courts are presented with two options; it can side with majoritarian barbarism or choose ‘justice’, in every sense of the word.
More than 700 people were hanged in our country after Independence. Recently, we have seen a surge of offenders convicted with capital punishment, especially in UP with 404 criminals on death row. Most probably, punishment for a good share of them will be reduced to life imprisonment. However these numbers are still alarming ,as the time has passed to quit ourselves from this savage mode of punishment. Many countries have laid the path for us and it is time for Indian judiciary to pursue it .
“Justice is not only the way we punish those who do wrong. It is also the way we try to save them.”
-Gregory David Roberts, Shantaram
Bachan Singh v State of Punjab AIR 1980 SC 898
Machhi Singh v State of Punjab (1983) 3 SCC 470
Santhosh Kumar Bariyar v State of Maharashtra (2009) 6 SCC 498
Curated by Shivanshika Samaddar of National Law University, Delhi.