Should Capital Punishment abolished??

Ever since the enactment of the Indian Constitution in 1950, public awareness of problems with death penalty and prevailing legal standards have evolved significantly. India is said to be one of the most liberal and open countries in the world and our constitution is a testimony to this very fact.

In dozens of countries, democratic governments in the course of conducting a major review of their national constitutions have decided to curtail, if not abolish, the death penalty. In national systems and as a matter of international law, it is increasingly recognised that the death penalty has no place in a democratic and civilised society. India is sovereign, secular, and democratic. And yet, it is astonishing that India is one of the few, to be exact, 54 countries in the world, which still embraces the concept of capital punishment or the death penalty.

Through this paper, I shall try to study and summarize the debate on death penalty in India and try to come up with arguments as to why it is inhuman and unconstitutional.

The practice of capital punishment has always been a part of the Indian Judicial system. It was incorporated onto the IPC (Indian Penal Code) right from the beginning in 1860. Similarly, it was also present in the Criminal Procedure Code (1898). According to Section 367 of the CrPC, a person convicted of murder was to be sentenced to death. And this was to be the general rule, not an exception. The interesting point to be noted is that right from the days of the British rule, there has been a strict opposition to the enforcement of capital punishment. For example, in 1931, Gaya Prasad Singh, a member of the Legislative Assembly introduced a Bill in the Assembly which proposed to abolish the death penalty in the country. However, it was overturned. Even after Independence, there have been several attempts, both inside and outside the Parliament, to force the abolition of the death penalty. During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly expressed the ideal of abolishing the death penalty, but no such provision was incorporated in the Constitution. Of these efforts, those by Prithviraj Kapoor, a member of the Rajya Sabha, in 1958 and by Raghunath Singh in the Lok Sabha in 1962 are noteworthy. Even in the contemporary times, there have been strict oppositions against death penalty. Unfortunately, such voices are heard only when the sentence is about to be executed.

In 1974, there came into force a new CrPC (Criminal Procedure Code). One of the major features of the new code was the overturning of the old ruling regarding the death penalty. According to the new code, for all offences involving murder, life imprisonment was to be the norm. The death penalty was to be awarded only in exceptional circumstances. Between 1975 and 1991, about 40 people were executed. On April 27, 1995 Auto Shankar was hanged in Salem, India. Since 1995 only one execution, that of Dhananjoy Chatterjee in August 2004, has taken place.

The Article 20 of the constitution, which deals with the Fundamental Rights of life and liberty, states "No person shall be deprived of his life or liberty except according to procedure established by law." Thus, it can be seen that the death penalty is verily upheld by the Indian Constitution. However, the same article, rather the same sentence, upholding two views at opposite ends doesn't stand too well with the spirit of the constitution. That is, even though it is logically consistent, it is against the spirit of the Constitution.

Another important provision regarding the capital punishment is the Presidential power of pardon. This appears in Article 72 and states that "The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence….. (c) in all cases where the sentence is a sentence of death." The objective of this article is to ensure that there be an authority beyond the Supreme Court to help the innocent if in case the Supreme Court, being a human institution has committed an error.

The Indian Penal Code (IPC) provides for capital punishment for the following offences, or for criminal conspiracy to commit any of the following offences (Section 120-B):

1. Murder (s.302) and murder committed by a life convict (s. 303). (Though the latter was struck down by the Supreme Court, it still remains in the IPC)

2. Abetment of a suicide by a minor, insane person or intoxicated person (s.305)

3. Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person (s.195A)

4. Perjury resulting in the conviction and death of an innocent person (s.194)

5. Treason, for waging war against the Government of India (s.121)

6. Abetment of mutiny actually committed (s.132)

7. Attempted murder by a serving life convict (s.307 (2))

8. Kidnapping for ransom (s.364A)

9. Dacoity [armed robbery or banditry] with murder (s.396)

This situation has been prevailing without being properly questioned ever since the nation gained independence in 1947. As the world moves away from the use of death penalty, I think it is high time that India too should review this and abolish the system of Capital Punishment, as Gandhi righteously said "An eye for an eye leaves the whole world blind."

The Indian State argues that the presence of such a punishment will instill a sense of fear and will act as a system to deter future criminals, and will safeguard the society against rising criminal and terrorist acts. Public opinion, also often supports retention of the death penalty based on the erroneous view that it deters violent crime. It is upto a limit right from the point of view of the general public- criminals like Auto Shankar (a serial killer from our very own Chennai) should be given Capital Punishment, though it is from a narrow viewpoint. However, it has been comprehensively proved by studies that this is not so; that the death penalty is as effective in the deterrence of crime as an ordinary life imprisonment.

In refusing over the years to declare the death penalty unconstitutional, the Supreme Court has relied on the fact that those framing the Constitution did not see fit to abolish capital punishment, and that the legislature has subsequently not done so. In turn, the failure of the Supreme Court to strike down capital punishment has become the rationale for the State to deny any need to re-examine the relevance of death penalty provisions in Indian law or to abolish the punishment.

The arguments for abolishing the death penalty are numerous and they remain forceful and persuasive. State killing condones violence and brutalizes society. The ever present risk of the execution of the innocent is enhanced by an unsafe judicial system. Disadvantaged sections of society - usually the poor and minorities - are disproportionately at risk of execution. The death penalty asks public servants - prosecutors, judges, prison guards, etc. - to betray their humanity and be involved in the brutal act of taking the life of a prisoner rendered defenseless, and no longer a threat to society, via their incarceration. The trauma and loss suffered by the family of the victim (in murder cases) is inflicted in turn upon the family of the person being executed, thereby continuing the cycle of violence. Thus, I would like to conclude that judicial state killing has no place in the modern world and that India should abolish the death penalty as soon as is practically possible.