Justice done or denied?

October 11, 2020 4:00 AM

The entire nation celebrated the execution of Nirbhaya’s rapists. However, is the death penalty achieving its objective, even as with every passing year, questions are being raised on the validity of capital punishment in law books?

In India, the judgment in the Bachan Singh vs State of Punjab said offences resulting in death are punishable by death only when they meet the “rarest of rare” standard.In India, the judgment in the Bachan Singh vs State of Punjab said offences resulting in death are punishable by death only when they meet the “rarest of rare” standard.

By Shriya Roy

When Nirbhaya’s rapists were executed on March 20 this year, a little over seven years after the incident, the mood across the nation was celebratory. There were voices that did not agree with the theory of an eye for an eye, but most, including the victim’s family, felt justice had finally been done. Even when the culprits in the rape of a veterinary doctor were shot dead in an encounter in Hyderabad last year, majority of the voices hailed the ‘quick justice’. The incident at Hathras, where a 19-year-old Dalit girl was brutally raped and who later succumbed, has led to a wave of citizen protests and similar sentiments for justice, with the family demanding a public hanging and even Delhi chief minister Arvind Kejriwal asking for the guilty to be hanged.

And while India stands among the very few countries in the world that still continue to follow death penalty, it is a rare event. There are places like Iran and China where hundreds are condemned to death by the State every year. The recent execution on September 12 of a champion wrestler in Iran, who was convicted of murdering a security guard during anti-regime protests in 2018, opened up the debate around capital punishment once again. Twenty-seven-year-old Navid Afkari was executed despite an international campaign to spare his life, a call by the World Players’ Association (WPA) for Iran’s expulsion from world sport if the execution went ahead and a condemnation of the order by US President Donald Trump.

If we look at data, Iran executed at least 251 people last year, the second-highest in the world after China, according to Amnesty International.

In India, the judgment in the Bachan Singh vs State of Punjab said offences resulting in death are punishable by death only when they meet the “rarest of rare” standard. Hanging and shooting are the two methods of the execution of death penalty followed in India. Crimes punishable by death in India include aggravated murder, other offences resulting in death, terrorism-related crimes, rape, espionage and terrorism, etc.

This brings us face to face with the question whether capital punishment yields results as intended, and is it valid in the 21st century? Assistant professor of law at National Academy of Legal Studies and Research, Hyderabad, Vivek Mukherjee says, “Justice does not have a universal meaning. Justice is never value-neutral; it is shaped by ideology. Death penalty has retributive justice at its foundation.”

Death penalty and collective consciousness
Since 2000, India has executed seven persons, of which three were for terrorism-related activities. They included Yakub Memon for the 1993 Bombay serial blasts, Afzal Guru for the 2001 Parliament attack and Ajmal Kasab for the 2008 Mumbai attack. The other four were the Nirbhaya rapists—Mukesh Singh, Pawan Gupta, Vinay Sharma and Akshay Kumar Singh.

Many human rights groups argue that by dealing an accused the death penalty, the State and other participants create an ‘illusion of justice’, by very selectively hanging some while protecting others responsible for similar crimes. One must remember that death penalty is irreversible, and in multiple cases across the world, information regarding the innocence of an individual has surfaced years after they were executed.

Major findings and reports not only question the validity of capital punishment, but also point out the socio-economic and cultural factors that play a major role for an individual sentenced with death. According to the Death Penalty India Report published by the National Law University, Delhi, 74.1% of the prisoners sentenced to death in India are economically vulnerable. The findings also state that 23% prisoners sentenced to death never attended school. A further 9.6% had not completed primary school education. As many as 76% of prisoners sentenced to death in India were from backward classes and religious minorities.

Speaking on the validity of capital punishment and death penalty, Punjab and Haryana HC advocate NS Boparai says, “It is a provision that exists in the statute books. However, we need to understand the root cause, which is being overlooked. Around 105 nations have already abolished it.”

Speaking about an alternate form of justice, he adds, “It is an issue where countries are taking a relook at the idea. The main purpose of capital punishment is its deterrent effect.” He, however, adds, “It does not serve the purpose for which it is being applied. As statistics show, there is no deterrence.”

Several debates have taken place in the country over the years on whether death penalty is constitutional. The Supreme Court had also ruled that mandatory death penalty is unconstitutional. Section 416 of the Criminal Procedure Code (CrPC) says if a woman sentenced to death is found to be pregnant, the high court shall order the execution of the sentence to be postponed and may, if it thinks fit, commute the sentence to imprisonment for life. The top court also held that mental illness is a ‘mitigating factor’ that shall spare those with such disorders from the gallows.

The mercy petition
Another important aspect when it comes to delivering capital punishment is the mercy petition. It has been one of the most debated things in the arena of law and justice at domestic and international levels.

In India, Article 72 of the Constitution empowers the President to grant pardon, suspend and remit death sentences and commute the death sentence of convicts on death row. A convict can file a mercy plea from jail either through prison officials or through a lawyer or even family. The Constitution doesn’t have any maximum time limit within which a mercy petition has to be decided. There have been instances of mercy petitions lying with the President for over a decade without any decision being taken. How it was exploited by the Nirbhaya rapists to defer their hanging remains fresh in everyone’s memory.

Former Union law secretary and a member of the 20th Law Commission, PK Malhotra points out that mercy petitions have to be disposed of in a time-bound manner. “There have been instances in the past where the Supreme Court has commuted the death sentence into imprisonment for life due to undue delay in execution of the sentence.” He adds, “When the human rights activists talk of human rights of the accused, probably they miss the point that the victims of the crime also have certain rights which have been violated and compromised by the accused person. Rights of such accused are fully protected when they are given a fair and expeditious trial and right to appeal.”

The world view
Critics of capital punishment have stressed repeatedly that there’s no evidence to show that death penalty deters crime. More than 70% of the countries in the world have abolished capital punishment in law or practice. However, it still continues to exist in many parts of the world, especially in countries that have a comparatively larger population or those with authoritarian rule.

In the US, capital punishment is currently authorised in 28 states. In recent years, New Mexico, Illinois, Connecticut, Maryland, New Hampshire and Colorado have abolished the death penalty, replacing it with a sentence of life imprisonment with no possibility for parole. States across the US continue to debate its fairness, reliability, and cost of implementation. Lethal injection is currently the primary method of execution in all states that authorise executions.

Over the past decade, several US Supreme Court rulings narrowed down the application of death penalty in its states. The court abolished the death penalty for mentally disabled offenders in 2002, juvenile offenders in 2005, and for those convicted of raping a child where death was not the intended or actual result in 2008. Studies have also shown that in America, homicide rates of states that still have death penalty are 48-100% higher as compared to the states without it.

In the UK, too, the Murder Act of 1965 suspended the use of capital punishment for a period of five years, before making it permanent in 1969, and replacing it with a sentence of life imprisonment. In 1998, capital punishment in the UK for acts of treason and piracy was also abolished, finally making the country totally free of the death penalty.

While international law does not prohibit the death penalty, most countries consider it a violation of human rights. Around the world, justices of the supreme courts have often referred to the international law for affirming their own judgment and conclusion about death penalty. There have also been reports of countries abusing the use of death penalty.

Kunal Ambasta, professor at National Law School of India University, Bengaluru, says, “The global stance on death penalty has evolved over the last century and today most countries have abolished it. Capital punishment is fundamentally violative of human dignity, and that is a basic and universal human right. In India, our laws must also be in accordance with the obligations to human rights that we have legally, as well as principally, as part of the international human rights regime.”

Amnesty International names China as the world’s top executioner, but adds that the true extent of the use of the death penalty in China is not known as the data is classified as a state secret. Capital punishment is a legal penalty in Pakistan and Iran. Malaysia was another state to abolish capital punishment in 2018.

Soon after the hanging of the Nirbhaya rapists, the UN once again called on all nations to stop the use of capital punishment or put a moratorium on it. Responding to the hanging, UN secretary-general Antonio Guterres’ spokesperson Stephane Dujarric said their position has always been very clear and stressed the need to move away from death penalty as a form of delivering justice. Amnesty International has been campaigning for over 40 years to abolish death penalty around the world. It monitors the use of death penalty by different states and holds the government accountable for carrying on and continuing with the inhuman practice.

Where India stands
Although the number of executions that have taken place in India have been considerably less, it, however, also opposed a UN resolution calling for a moratorium on death penalty, saying that it goes against the Indian statutory legislation, as well as against each country’s sovereign right to establish its own legal system.

Child protection activist and secretary of Shakti Shalini NGO, Bharti Sharma argues that the law must consider ‘reforming’ as an aspect, even in heinous crimes. “We need to move from retribution to a more reforming system. We need to adopt this gradually. Restorative justice is a way of dealing with offenders.”

Sharma says abolishing of death penalty in India might come out of an attempt to gather larger world support. “That would be out of compulsion, and not out of change of mind. It will only be a cosmetic change for global support. What is important is to integrate the value and understanding it.”

A report submitted by the Law Commission of India in 2015 recommended abolition of death penalty in the country. The report favoured speedy abolition of the death penalty from the statute books, except in cases where the accused is convicted of involvement in a terror case. The commission pointed out, “The death penalty has no demonstrated utility in deterring crime or incapacitating offenders any more than its alternative: imprisonment for life.”

However, those in favour of capital punishment say it is necessary to not abolish it, because it is the ultimate form of punishment in the most heinous crimes and the ‘rarest of the rare’ cases. In 2019, 90% of the states in India supported the retention of death penalty after a private members’ bill seeking its abolition came up in the upper house of the Parliament.

Malhotra, who was part of the commission that submitted the report on death penalty, says the time is not ripe in India for the abolition of death penalty. “I had given a dissenting note in the Law Commission report also, along with two other members of the commission. Death penalty definitely acts as a deterrent and, therefore, needs to be continued,” he says.

Another important point that comes up is that even years after the government started looking at various options to find a ‘more humane’ way to replace death by hanging for convicts, the process seems to have been discarded without any decision being taken.

Between 2008 and 2010, the ministry of home affairs wrote to state governments seeking their views on the need to replace death by hanging with some other method. Barring a few states, majority of the governments strongly favoured replacing death by hanging with lethal injection. But it now seems the Centre has put an end to the consultations and has decided to stick to the death by hanging method.

Boparai points out that although criminal offences are being committed across the country, some cases get more attention than the others, and are politically expedient for the ruling dispensation to send a particular message. “There exists an element of discretion, which can at times be flawed,” he says.

Validity of death penalty
This then brings us to our original question: do we need the death penalty? Global discourse has been that of moving away from it, even though the nations that still have it also have substantial strong argument in defence of it. French philosopher Jacques Derrida’s argument in this regard says the foundational assumption is that the criminal law of ‘civilised nations and states’ does not and should not have barbaric features. So, the nations that have abolished capital punishment have done it not because of their belief in giving a chance or for reformation, but because of an ‘unspoken motivation’ to catch up with the ‘civilised’ world.

Increasing international trends amongst countries to abolish death penalty point to the fact that an international standard is under development. It has been argued that the abolition of death penalty is essential for the protection of the right to life. Whether an international standard develops, and if it is followed, remains to be seen.

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