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SUPREME COURT AWARDS THE DEATH PENALTY IN THE CASE OF RAPE AND MURDER OF A 7-YEAR-OLD.

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-Report by Avinash Pandey

The Supreme Court recently upheld the death penalty awarded to a 37-year-old man for the rape and murder of a 7and a half-year-old girl who was mentally and physically challenged, in the case of Manoj Pratap vs State of Rajasthan. The crime had occurred in 2013 in the state of Rajasthan when the convict Manoj Pratap was around 27 years old. The 3-judge bench comprising Justice AM Khanwilkar, Justice Dinesh Maheshwari, and Justice CT Ravi Kumar had made an observation that the crime that was in contention was of extreme depravity while looking at the vulnerable state of the victim and the manner in which the crime had been committed.

The victim had been kidnapped by the accused party in this case on a stolen motorcycle by misleading her after offering the little girl sweets and other attractive eatables. Thereafter the accused had taken the victim to a silent area where he committed the crime and at the same time, her head was smashed which resulted in multiple injuries including bone fractures and dislocations. The doctors had reported gruesome injuries on the private parts of the victim as well.

The convict urged in front of the court that he was only 28 years old at the time he had committed the crime and furthermore he has a family and a minor daughter. However, the Supreme Court asserted that these are not mitigating factors and there is no foreseeable probability that there can be any rehabilitation or reformation in the behavior of the convict.

The Supreme Court while upholding the death sentence for the convict stated that the convict was a danger to the maintenance of peace and order in the society. The court said that the conduct that the convict has shown in the past and after going through the facts of the current case it is not possible for the court to reduce the penalty or the punishment from a death sentence to life imprisonment.

For generations, people have argued about the cultural and ethical shame associated with capital execution. Nonetheless, the court has repeatedly given verdicts in favor of the retention of the death penalty in the nation.

Article 21 of the Indian constitution, while recognizing the right to life as an indisputable and basic value, contains several restrictions. The 35th Law Commission Report of 1967 outlined how repealing the death sentence legislation in India just wouldn’t improve society as a whole. Maintaining the safety of people at the forefront of its debate, the study concluded that in order to maintain harmony and security in a society with huge educational or ethical distinctions, a mechanism for the death sentence was necessary for some situations.

The punishment allotted to the convict, in any case, is based on the facts and not on the severity of the crime which was concluded by the Supreme Court in this judgment. In some situations where there is no scope for any reform, the death penalty can be given as has been held in this case.

Should Capital Punishment Be Abolished In India

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Introduction

The prime rationale behind providing punishments is to make the wrongdoer pay the penalty for the wrong he did and to provide a message to society and deter them from committing the same. Capital punishment is an integral part of the criminal justice system also follows the same rationale.   But as human rights movements are increasing and the ideology of considering a person as a fellow human being rather than his gender, race, religion, caste, etc. the rationality of capital punishment is being questioned. 

Definition

The word “death penalty” interchangeably used as capital punishment means the state-sanctioned execution of a malefactor sentenced to death after conviction by a court of law for a criminal offense. The sentence that orders someone to be punished in such a manner is known as a death sentence and an act of carrying out such a sentence is called an execution.

Historical Background 

“If a man destroys the eye of another man, they shall destroy his eye”

  • These lines are the core doctrine of  the code of king Hammurabi

Of Babylon which originated at the age of 18th century that led to the evolution of capital punishment. The statute prescribed capital punishment for over twenty different offenses depending on the defendant’s societal status. The crimes which are now treated lightly like theft; perjury, etc. were subjected to capital punishment in the Hammurabi Code. Later, the notion of capital punishment was adopted by different ancient statutes like the draconian code of Athens where the death penalty was considered to be compulsory for all types of crime, the roman law of twelve tables where they imposed capital punishments through various methods like burning alive, boiling in oil, drowning, hanging, being thrown to a wild animal, etc. Soon after its introduction, there was a hike in the number of capital punishments held in the 17th and 18th centuries for crimes ranging from theft, cutting down of trees, marrying a Jew, treason, etc. As the punishments started getting more stringent and heinous the jurists had started considering the death sentence only for serious crimes. This led to early reforms in the statute of the death penalty in Britain. It was not only in the statute but also several religious texts have justified the idea of capital punishment:

  1. “Whosoever sheddeth man’s blood, by man shall his blood be shed” (Genesis 9:6) are the excerpts from bible that justifies capital punishment.
  2. In Islam, capital punishment is entitled for certain crimes like apostasy, adultery, murder, those who conducts war against Islam and spies.

Capital punishment for murder was penalized in India after the independence in 1947 by the imposition of a penal code. But during the British regime, it was during the period of 1931 the fingers started pointing towards the constitutionality of capital punishment when Mr. Gaya Prasad Singh, a member of the British parliament introduced a bill to scrap the death penalty for all the offenses prescribed under the Indian Penal code. But the bill was denied during that time at the parliament by stating the impossibility to enact the bill. And after Independence, the government had retained several criminal statutes including the penal code of, 1860 thus penalizing the death penalty. Later on, during the period of 1950 to 1980 there over 3000-4000 capital punishments occurred in India. But it was the 1980’s landmark case Bachan Singh vs. State of Punjab [1] that became a turning point in the evolution of laws regarding capital punishment.

Bachan Singh Vs. State of Punjab:

In this case, the bench was headed by justice Y.C chandrachud, justice A.gupta, justice N.untawalia, justice P.N.bhagwati, and Justice R. Sarkaria. The issue raised in the case is regarding the constitutionality of section 302 of IPC, 1860 under which capital punishment is provided, and about the necessity to follow the facts identified by the lower courts for awarding capital punishment under section 354(3) of CRPC. The judgment of the case states that: 

The court has dismissed the query against the constitutional validity of section 302 of IPC and 354(3) of  CRPC and has also stated that the death penalty can only be imposed in rarest of rare cases, which means that conviction for life imprisonment is the rule and death penalty is an exemption. In India, we all have the right to life under article 21 of the Indian constitution so, that capital punishment is only imposed on serious crimes like aggravated murder, other offenses resulting in death, terrorism-related cases resulting and not resulting in death, kidnapping not resulting in death, drug trafficking not resulting in death, treason, espionage and military offenses not resulting in death. Minors, pregnant women, mentally challenged people are excluded from the death penalty. Hanging and shooting are the two methods that are adopted in India for the execution of the death penalty.

  The first capital punishment was executed in September 1947 at Jabalpur central jail by hanging Rasha alias Raghu raj Singh and recently for Nirbhaya rape case by hanging four out of six culprits: Mukesh Singh, viny Sharma, Pawan Gupta, and Akshay Kumar Singh at Tihar jail. This was the first time where four convicts were hanged together on the same platform. Prior to this, the death sentence conducted in India was the 30th July 2015 hanging of terrorist Yakub Memon, who was convicted in the 1993 Mumbai blasts. Over 720 people were executed in India after Independence.

Current Status Of Capital Punishment Both Globally And In India

Global level:

There are over 58 countries that still follow the death penalty as a punishment. The convention against torture and cruel, inhuman, or degrading treatment or punishment stated that the execution or imposition of capital punishment will not amount to torture or inhuman. The death penalty was permissible under the international criminal law in Tokyo and Nuremberg tribunals which were formed during Second World War and from there onwards international courts exclude capital punishment as a permissible form of punishment.  The death penalty is permissible as a punishment under the international convention on civil and political rights (ICCPR) but at the same time, article 6 under the convention guarantees the right to life and also imposes certain safeguards that are supposed to be followed by signatories before considering the death penalty. The ICCR also consists of a second optional protocol for the abolition of the death penalty. It came to light in 1991 and it has 81 state parties and 3 signatories. Under article 37(a) of the convention on rights of children strictly prohibits the imposition of the death penalty on minors (under the age of 18).

At the national level:

From jag Mohan Singh Vs. the state of Uttar Pradesh [2] then in Rajendra Prasad Vs. the state of Uttar Pradesh [3] till the landmark case of Bachan Singh Vs. In the state of Punjab, the apex court stated that in India death penalty can only be imposed in the rarest of rare cases. In India, we highly value the life of a human being under article 21 of the Indian constitution and it was stated that a person will only be executed for a death sentence if it has a fair and valid reason. The case should require some uncommon nature which makes the life imprisonment inadequate and enables the court to take away a person’s right to live. In India, our constitution also provides the right to seek pardon and get free from the death penalty. The mercy petition can be accepted by the president and governor under article 72 and article 161 in the Indian constitution respectively.  9 presidents have accepted mercy petitions with Rajendra Prasad being the president who accepted more petitions.

The Arguments For The Death Penalty

The major   arguments that favor the idea of the death penalty are:

  1. The major argument arises from the concept of Hammurabi code, where it considers the man who deprived the right of another man no longer deserves the luxury of human rights.
  2. Certain crimes like rapes deserve heinous punishments like death penalty.
  3. Awarding death penalty to the wrongdoers will prevent the society from committing the crimes.
  4. Death penalty is given as a counter act of revenge by the victim’s family, which is a right that they deserve.
  5. It is a strong deterrent for criminals.

The Arguments Against The Death Penalty

  1. The common argument that stands against death penalty is that it takes an individual’s right to life.
  2. Many countries execute mentally challenged people who might not even know that they have committed a crime.
  3. In countries like Sudan and Iran death penalty is often used as a political device to execute their political propaganda.
  4. The people who are disadvantaged to have proper socio-economic background are denied proper legal aid and it tends to emerge as a great disadvantage and will not enable the justice system to follow its ideology of justice to all.
  5. There are high chances of a person proving to be innocent after the execution. In America, more than 184 prisoners sent to death row were later released from the row on grounds of innocence in 1973. The death sentence itself cannot ban fellow people from committing the crime

Alternatives For The Death Penalty

By providing value to the life of an individual and also providing the wrongdoer to understand his mistake and repent for the same, other alternative punishments are also provided.

  1. Life imprisonment: it is an effective replacement for death penalty. In this type of punishment a culprit is put behind the bars without the privilege of parole which means that a person cannot leave the prison until he dies. But there is also life imprisonment which provides the luxury of parole. Life imprisonment without parole does have a similar effect that of a death sentence where a person is denied from leading a free and independent life.
  2. Long term imprisonment: in this type of punishment, a culprit is sentenced for a fixed time period of 40 years. Its followed in several countries like:  Brazil, Colombia, Croatia, El Salvador, Nicaragua, Norway, Portugal and Venezuela 
  3. Release with restrictions: under this punishment the culprit is released with certain restrictions for life long or a particular period of time. any infringement of these restrictions will enable the system to send him back to prison
  4. Preventive detention: this is a type of detention where a person is detained for preventing him from committing a crime.it is mainly provided in case of serious violence or sexual assault where his release can be a threat to society.
  5. Indeterminate term of imprisonment: in this type of imprisonment, a person is sent to jail for a minimum duration but can be prolonged thereafter.

Conclusion

During the time where nirbhaya rape case was a burning topic, BBC had filmed a documentary named India’s daughter where they interviewed the culprits and their family members. In that documentary, Mukesh Singh, one among the six culprits, was asked the question of whether he repents for the crime he did and the answer was a blatant “NO”. He said that no good girl will go out after 9 pm and if rape occurs it’s the girl’s fault than the boy. The main motive behind punishment is to make the wrongdoer pay the penalty and at the same time, it should deter society from committing the same. Not only in the above-mentioned case but in many other crimes the culprit themselves fails to understand their own mistakes. Other than killing someone for taking another’s life capital punishment sadly gets entitled to an act of mere revenge. It fails to implement its major objective of deterring society from committing the crime. There are lots of social, psychological, and legal aspects that are connected with the commission of a crime. Unless we aren’t able to identify and treat and plunder the reasons for the commission of crimes at the `grassroots level, capital punishment won’t be a solution for it.

The article has been written by  Nourien Nizar, a first-year B.COM LLB (HONS) student of Government Law College, Ernakulam, Kerala

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith.

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An Overview of Capital Punishment in India

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The present article is written by Muskan Harlalka, a 2nd-year law student from the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

Introduction

Punishment is a form of constraint used for the effective implementation of the law. It is based on the belief that a wrongdoer should suffer for his misdeeds and that punishing the wrongdoer acts as a deterrent for others. Capital punishment, also known as the death penalty, is the highest and most cruel form of punishment awarded at present. It is awarded for the most heinous, grave, and detested crimes. It implies the legal killing of a person who has committed a crime forbidden by law. 

The punishments awarded by a Court derive their justification from various Theories of Punishment. Capital punishment is based on the Deterrent and Retributive theories of punishment. According to the Deterrent theory, capital punishment rids the society of the offender and deters others from committing crimes by affecting their consciousness. On the other hand, the Retributive theory believes in inflicting in return for wrongdoing, not the same thing but its equivalent.

Many of the laws enacted by the British colonial government were retained by India after independence. These included the Indian Penal Code, 1860 (IPC), and the Criminal Procedure Code, 1898 (CrPC). The IPC laid down six forms of punishment including the death penalty that could be awarded to a wrongdoer. For offenses where capital punishment was an option, as per Section 367(5) of CrPC, the Judges were required to provide reasons for not imposing the death sentence. This provision was later repealed in 1898 and when the CrPC was re-enacted in 1973, significant changes were made. Now the Courts had to provide special reasons for awarding the death sentence. 

Methods of Execution of Death Penalty in India

In India, the death penalty is executed by either of the following methods:-

  1. Hanging – The Civil Procedure Code provides hanging as a method of execution in civilian courts.
  2. Shooting – According to the Army Act of 1950, both shooting and hanging are the official methods of execution in the military court-martial system.

Capital Offenses in IPC and Other Laws

  1. Capital offenses under IPC: The death sentence is the most extreme punishment provided under the Code. The authors of the Code have stated that it is to be awarded only in those cases where a murder or the highest offense against the State has been committed. Some of the offenses where the death penalty has been provided as an alternate form of punishment are waging or attempting to wage war against the Government of India (Section 121), abetment of mutiny committed (Section 132), murder (Section 302), kidnapping for ransom (Section 364A), dacoity with murder (Section 396) and others.
  2. Capital offenses in other laws: Apart from IPC, the death penalty has been prescribed as a punishment in various other legislations such as the Narcotics Drugs and Psychotropic Substances Act (NDPS) 1985, the Army Act 1950, the Commission of Sati (Prevention) Act 1987, anti-terrorism laws, etc.

Constitutionality of Capital Punishment

The constitutional validity of the death penalty was challenged for the first time in the case of Jagmohan Singh v. State of Uttar Pradesh. In this case, the appellant was convicted for the murder of Chhotey Singh and sentenced to death under Section 302 of IPC. One of the arguments that were put forth against capital punishment was that it puts an end to the fundamental rights guaranteed under Article 14 (equality before law) and Article 19 (protection of certain rights regarding freedom of speech, etc.) of the Constitution of India. It was also pointed out that there was a lack of any procedure for the trial of factors and circumstances crucial for choosing between life imprisonment and capital punishment. Such absence violates the Right to protection of life and personal liberty granted under Article 21 of the Constitution and is thus, not in the interest of the public.

The Supreme Court stated that the trial was held in accordance with the provisions of the CrPC and the Indian Evidence Act, 1872 and since these provisions were a part of the procedure established by law, the death penalty did not violate Article 21. Thus, the constitutionality of the death sentence was upheld.

In Bachan Singh v. State of Punjab, the Supreme Court upheld its earlier decision in the case of Jagmohan Singh and stated that the death penalty is reasonable as a punishment and does not violate Article 21 of the Constitution.

Rarest of Rare Cases – Guidelines

While upholding the constitutionality of capital punishment, the constitution bench in Bachan Singh v. State of Punjab observed that for murder convicts, imprisonment for life is the rule, and the death penalty a deviation from that rule. The bench concluded that the death penalty should be given only in the “rarest of rare cases” and thus the “Doctrine of Rarest of Rare Case” was established. This case also managed to effectively shift the focus from the crime to both the crime and the criminal in awarding the death penalty.  

Afterward, in Machi Singh v. State of Punjab, the Supreme Court formulated specific criteria to establish the scope of rarest of rare doctrine and gave some factors to be considered while deciding the rarest of rare cases. These factors are:

  1. Manner of commission of murder: When the murder is committed in an extremely cruel way so as to attract intense resentment from society.
  2. The motive for commission of murder: When the motive for committing murder indicates immorality and meanness.
  3. Antisocial or socially abhorrent nature of the crime: When a member of the Scheduled Caste or any minority community is murdered or in cases of bride burning, dowry death, etc.
  4. The magnitude of crime: When the proportion of the crime is enormous.
  5. The personality of the murder victim: When the victim is a helpless woman, an innocent child, a civic figure, etc.

Commutation of the Death Penalty

Section 54 of the Indian Penal Code talks about the commutation of the death penalty by an appropriate Government. The convict also has the option of appealing to the Supreme Court and if the Court refuses to hear the appeal or upholds the capital punishment, then the convict or his relatives can submit a mercy petition to the Governor of the State or the President of India.

The Governors of the States and the President of India, respectively have the power under Articles 161 and 72 of the Constitution to grant remission (reduce the punishment without changing the nature of the punishment), reprieve (temporary suspension), pardon (conditional or absolute), respite (postponement of the execution of a death sentence to a future date) or to remit, suspend or commute the sentence pronounced for any offense. The grounds for seeking mercy include age, the harshness of the law, physical fitness, etc.

Former President Pratibha Patil had granted pardon to 30 convicts, some of which were cases of brutal crimes, while her successor Pranab Mukherjee had rejected 24 mercy pleas. President Ram Nath Kovind has rejected at least two mercy pleas, which include the petition of Akshay, a 2012 gang-rape convict. 

In Sher Singh v. State of Punjab, the Apex Court stated that delay in execution of the death penalty exceeding two years does not entitle the convict to commutation of his sentence. However, in Jagdish v. State (2009) the Court said that the length is a convict’s wait for execution, the higher should be the chances of commutation of his death penalty to imprisonment for life.

Should the Death Penalty be Abolished?

There is a wide controversy surrounding the issue of retention of capital punishment. Those who are against capital punishment argue that capital punishment is irreversible. Moreover, its use has not brought any significant crime reduction and hence it has no deterrent value. It is also possible that the retention of the punishment may lead to the acquittal of a guilty person resulting in failure of justice. Also, retribution is a medieval concept and should not be practiced in a civilized society. 

Supporters of the death penalty assert that sentences pronounced by the Sessions Courts are subject to confirmation by the High Courts which reduces the possibility of error. The supporters also contend that the chances of an innocent person being punished with capital punishment were reduced when the Apex Court struck down the mandatory death sentence given under Section 303 of IPC. Besides, even after the pronouncement of the death penalty, the convict has the option of submitting a mercy petition to the Governor of the State or the President of India, which further reduces the possibility of an innocent person getting punished.

Conclusion

The death penalty is not just a punishment, it ends the life of a person and eliminates the chances of improvement. It is true that a wrongdoer needs to be punished, but we as a society need to focus on getting rid of the offence, not the offender. Society should focus on reformative theory instead of the deterrent theory as in reformative theory there is a possibility of improvement.

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