Relevance: Mains: G.S paper II: Polity: Governance
Context:
- After the dismissal of the curative pleas by the Supreme Court (SC) of the Nirbhaya accused, they filed Mercy petition before the President. Article 72 of the Indian Constitution deals with the power of President to grant pardons, to suspend, remit or commute sentences in certain cases.
• The similar powers are also enjoyed by the Governor under the provisions of Article 161.
• Further, the law laid down in Bachan Singh (1980), upheld the validity of the death penalty and provided that death penalty should be awarded only in the rarest of rare cases. Around 59 countries have still retained the death penalty. India is one of them, even if it does not employ it as frequently as countries such as Iran, China, Pakistan, Saudi Arabia and the USA.
Arguments in favour of Death Penalty are as follows:
- In 1962, the Law Commission (35th Report) supported the death penalty stating that India’s particular circumstances were such that it could not experiment with its abolition.
• Further, in 1991, the SC cited its use in defending law and order as the reason for its continuance.
• India’s neighbourhood is not peaceful, unlike Scandinavia. On the contrary, every day vested interests attempt to destabilize the very idea of our nation from across every border it shares.
Moreover, cases of violent terror are constant reminders of the need to protect national stability.
• A punishment cannot be judged by its impact on criminals but by its impact on those who are still innocent. Thus, there is a moral support for the death penalty.
• Those who defend the death penalty often do it on the basis of retributive justice.
• The judiciary has already circumscribed the application of death penalty by stating that it must only be imposed where the alternative option is unquestionably foreclosed.
• The death penalty is imposed only in rarest of rare cases that shock the conscience of society.
• This is reflective in the fact that in the last 13 years, only four people have been executed.
The Arguments against use of Death Penalty are as follows:
- The death penalty is criticized mainly on three counts i.e. arbitrariness, irreversibility and human rights.
• The moral foundation of judicial killing has been questioned and it has been judged untenable in many countries.
• Implementation of the death penalty has also been deeply problematic. As the recent Death Penalty India Report by the National Law University, Delhi indicates the structural flaws in our criminal procedure and criminal justice system are most pronounced in death penalty cases.
• There has been an arbitrary manner/ application in which death penalty is awarded by different judges (judge-centric variations) and the way public discourse influences such decisions.
• In recent times, public outrage, the need for deterrence and the clamour for a befitting punishment to render substantial justice have dominated the discourse. Whereas, individual cases the decision on death penalty should depend on the nature of the crime, its gravity, cruelty and the number of fatalities.
• The Supreme Court itself spoke of the extremely uneven application of norms laid down in Bachan Singh. The same was also endorsed by Law Commission of India in its 262nd Report and asserted that there exists no principled method to remove such arbitrariness from capital sentencing.
• The death penalty has refused to consider the Reformative theory of punishment that focuses on reforming the individual.
• No study has shown that the death penalty deters murder more than life imprisonment. The evidence is all to the contrary. For deterrence to work, the severity of the punishment has to coexist with the certainty and swiftness of the punishment.
• Due to biases in criminal investigations, the marginalized, whether by religious and caste denominations or class are disproportionately subject to the death penalty. Over 3/4th of prisoners on death row belong to backward classes and religious minorities. Also 93.5 % sentenced for terror are Dalits or minorities.
• In 2007, the UN General Assembly passed a resolution calling for a moratorium on the administration of the death penalty.
Way Forward:
- The SC has covered considerable ground in limiting the scope to the rarest of rare case. Post-appeal reviews and curative petitions are routinely admitted. Review petitions are now heard in open court.
• The treatment of death row prisoners has been humanized and there is scope for judicial review even against a sovereign decision denying clemency.
• If there still prevails a perception of arbitrariness in the way death sentences are awarded, the only lasting solution is their abolition after due analysis.
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