Context

The Supreme Court asked Attorney General K.K. Venugopal for assistance to institutionalise a mechanism by which information crucial to decide whether a person should be condemned to death or not can be gathered and placed on record before trial judges.

This brief aims to look at the history of capital punishments in India and what are the crimes that call for death penalty in the country.

Analysis

What is death penalty in India?

• Hanging and shooting are the two methodsof death penalty in India.
• According to the Criminal Procedure Code, hanging is the method of execution in the civilian court system.
• The Army Act, 1950, however, lists both hanging and shooting as official methods of execution in the military court-martial system.
• Under the provisions of criminal procedure, death penalty must be awarded as an alternative punishment to life imprisonment which the offenders may be sentenced in 'rarest of rare cases'.

Rarest of rare cases Rarest of rare cases can be described as those when the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme indignation of the community. When total depravity and cruelty are the motives behind a murder.

Which crimes are punishable by death?

• Crimes punishable by death in India include
  • aggravated murder
  • other offences resulting in death
  • terrorism-related crimes resulting in death
  • terrorism-related cases not resulting in death
  • rape not resulting in death
  • kidnapping not resulting in death
  • drug trafficking not resulting in death
  • treason, espionage and military offenses not resulting in death

Following the 2012 gang rape and murder, the Supreme Court amended the law in April 2013 to make it more stringent by adding new categories of offences regarding violence against women and minor girls.

Mercy petition process For a convict to file a mercy petition, his/her death sentence must be confirmed by a high court first. The law says: “The death sentence convict has an option to appeal to the Supreme Court. If the Supreme Court either refuses to hear the appeal or upholds the death sentence, then the convict or his relatives can submit a mercy petition to the President of India (Articles 72) or the Governor of the State (161).” Grounds to seek mercy appeal: physical fitness, age, law was too harsh, or the convict is the sole breadwinner of the family. According to Article 72 of the Constitution, the power to pardon — philosophy of which is “every civilised country recognises and provides for the pardoning power as an act of grace and humanity in course of law” — lies with the President. The Article also states that he/she can grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the convict. The mercy petition is reviewed by the Ministry of Home Affairs, which consults the state involved, before going to the President.

Arguments in favour and against death penalty

In Favour

• Retribution - One of the key principles of retribution is that people should get what they deserve in proportion to the severity of their crime.
  • This argument states that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime.
• Deterrence - By executing convicted murderers, would-be murderers can be deterred from killing people. 
• Closure: It is often argued that the death penalty provides closure for victims' families.

Against

• Questionable: The statistical evidence doesn't confirm that deterrence works.
  • Some of those executed may not have been capable of being deterred because of mental illness or defect.
  • Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC), still, rapes continue to happen and in fact, the brutality of rapes has increased manifold.
• This compels one to think of the death penalty is an effective deterrent to crime.
• The risk of executing the innocent persists.
• Morality: It is seen as inhumane. Thus, the morality of the death penalty is debatable.

What are the issues in the current system?

A Supreme Court Bench led by Justice U.U. Lalit made the following observations:

• Quick decision: In some cases, trial courts sentence a person to death merely hours after conviction.
• Little effort to unearth the issue: Little effort is taken to unearth or understand the circumstances which led a person to commit the crime. In short, trial judges hardly know the people they are sending to the gallows.
• Ignored individual’s details: No effort is ever made to dig deeper into a convict's childhood experiences, multi-generational history of physical and mental health issues, exposure to traumatic events and other familial, social and cultural factors crucial in order to undertake an individualised sentencing enquiry.
• Mitigation expert: The court said a "mitigation expert", a qualified professional with unhindered access to the convict's past, ought to be at the centre of this change in outlook.

This 'one-size-fits-all' approach while considering mitigating factors during sentencing should end. A more enlightened approach has to be evolved. The apex court's introspection may be a sign of the judiciary veering away from the death penalty.

Capital Punishment and international standards

• Capital punishment founds its place in international human right treaties as a facet of right to life as imbibed in “International Covenant on Civil and Political Rights (‘ICCPR’)”, it was later discovered that implementation of capital punishment violates the norms of prohibition against cruel, inhuman, and degrading treatment and punishment and with enforcement of second ICCPR there had been an increasing trend towards the removal of capital punishment as a way of punishment.

Practice Questions Q1. Capital punishment is retributive justice and its effectiveness in curbing crime is contested. In light of this statement, critically examine the need for continuance of capital punishment in India. Q2. Over the decades, Supreme Court has expanded the scope of Right to Life and liberty. Explain with the help of various judgements.