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In 1980, the Supreme Court in the Bachan Singh versus State of Punjab abolished the mandatory death penalty in cases of murder and said a death sentence cannot be awarded except in “rarest of rare cases”.

Arguments Against Death Penalty 

  • Death Penalty does not necessarily acts as a deterrent.
  • It is a violation of human rights and is an inhuman and cruel form of punishment.
  • India has ratified the Covenant on Civil and Political Rights, which requires parties to abolish the death penalty.
  • Even the International Criminal Court, for offences like genocide, war crimes and crimes against humanity, cannot award the death penalty.
  • Many countries have already eliminated it. For example, Nepal officially abolished the death penalty in 1990 and did not re-introduce it even in the aftermath of the Civil war. Sri Lanka, despite a long Civil War, has maintained a moratorium on the penalty. Israel has only executed once since its formation. A total of 140 countries have abolished it while 39 countries have not.
  • The Law Commission of India in its 262nd report, had declared that the abolition of the death penalty must become a goal for India. It had recommended, for a start, the scrapping of the death penalty for all crimes except terrorism related offences and those that amount to waging war against the state.
  • Retributive justice is important, but it must not descend to the level of vengeance. The Law Commission had sought a return to the notions of restorative and reformative justice, and urged a change in tenor, in such a manner that victims are not made to think that the death penalty is the only, best or ultimate form of punishment.
  • It observed that the administration of the death penalty even within the restrictive environment of ‘rarest of rare’ doctrine is constitutionally unsustainable. The continued administration of the death penalty raises issues of miscarriage of justice, errors as well as the plight of the poor and disenfranchised in the criminal justice system.
  • The  question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by the Court depends a good deal on the personal preference of the Judges constituting the Bench. As per the SC, there was a 95.7 % error rate among trial courts (from 2000-2015) which awarded the penalty and 23.2% error rate among SC rulings on death (2000-2013).
  • There is increasing support for the view that the death penalty for terrorists may not only be ineffective but also be counterproductive. When they are awarded the penalty, they become martyrs influencing many other misguided youngsters to espouse a similar cause. On the other hand, imprisonment of a terrorist can help in obtaining information relating to their activities and other terror outfits.
  • Enhancing the efficiency of the legal system will be more effective than enhancing the punishment.

Arguments in Favor

  • Article 21 of the Indian Constitution ensures the Fundamental Right to Life and Liberty for all persons. No person shall be deprived of his life or personal liberty except according to a procedure established by law. This has been legally construed to mean that if there is a procedure, which is fair and valid, then the state by way of framing a law can deprive a person of his life. This will, however, only be in the “rarest of rare cases” and the courts should give “special reasons” while awarding the punishment.
  • Nobody values anything more than his or her life, and any system that takes away your life will be an effective deterrent.
  • The penalty should be retained for heinous crimes like rape and murder. Else the crime rate will shoot up. The death penalty will set an example for other criminals and will keep a check on crime rate.
  • If someone has committed a heinous crime, then why is it argued that he needs to be treated like a human? Wasn’t the crime he committed of inhumane nature.
  • As it is awarded only in rarest of rare cases, so not all the criminals are awarded the penalty.
  • Keeping a rapist or a murderer for years in jail with all facilities and letting them free after a period of time is no justice to the victim.
  • Preeti Rathi Case (2013)- A special women’s court has awarded the death penalty to the convict in the acid attack case.
  • The Court said, ” Without a shadow of doubt, this crime falls in the category of the rarest of the rare case. Therefore, deterrent punishment is the need of the hour”.
  • It further noted, ” The height of brutality in acid attacks was more than those in cases of rape. Rape destroys the soul of the victim. but she can be kept in isolation, without disclosing her identity, and can be rehabilitated. But for an acid attack victim, she has to move around with a destroyed body.”

ALTERNATIVES TO DEATH PENALTY

Judicial Innovation

  • It was formalized by a Constitution bench of the Supreme Court in the Union of India versus Sriharan alias Murugan Case ( Rajiv Gandhi Killers Case) in December 2015.
  • It helps to “get rid of death penalty” and also addresses the genuine concerns of the society to see justice done.
  • It bridges the gap between death sentence on the one end and only 14 years of actual imprisonment in the name of life imprisonment on the other.
  • It substitutes death penalty with a “special category” of life imprisonment without the benefit of release on remission for prolonged periods ranging from 25 to 30 years.
  • It will be limited to a “very few cases”.
  • This special category finds its first mention in the Swami Shraddananda versus State of Karnataka judgement of the Supreme Court in 2008.
  • The innovation is an endeavour by the SC to make “no party (convict or the society) a loser”.
  • Tattu Lodhi Case- The SC in this case has opted for a “judicial innovation” instead of the death penalty.
  • It observed that, ” the innovative approach, on the one hand, helps the convict get rid of death penalty in appropriate cases. On the other, it takes care of genuine concerns of the victim, including the society”.
  • Though saved from the death penalty, Lodhi has been stripped of his right to apply for release from prison on remission for the next 25 years. Any hope, he might have had for his release after serving the first 14 years has been effectively extinguished.
  • The innovation can be considered as an effective “alternative” to capital punishment.

 

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