Death Penalty: Why India must embark upon an abolitionist path.
In March 2020, India executed the Nirbhaya rape convicts after a long legal battle. It led to the strengthening of India’s laws regarding sexual assault highlighting the severity of this most inhuman crime. But sadly, it is evident that we are far from creating a safe environment for our citizens as heinous attacks and other crimes grapple for space in the headlines. In India, death penalties are used as a deterrent of crime and are valid punishment only in the “rarest of rare cases.”[i] It is not easy to isolate the political, social, and moral challenges that death penalties present nor its efficiency in reducing crime. We will examine the human rights implications of the death penalty at the International level and evaluate India’s system with a view of abolishing it.
International stand on the death penalty: Dichotomy between the existing laws and state practices
As of 2017, 170 member states of the UN have either abolished or stopped practising the death penalty, echoing the stand that the death penalty undermines human rights and that abolition or moratorium on the practice will enhance the progress of these rights. Amnesty reported that 657 executions were carried out in 2019, compared to 690 in 2018 which is a 5% decrease. Nearly 86 percent of all recorded executions were concentrated in four countries; Iran, Saudi Arabia, Iraq, and Egypt.
International conventions and organisations have been active in creating a dialogue that considers the rights of death row convicts. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) that safeguards the right to life of all humans, permits the death penalty only in limited circumstances and if carried out as per a judgement by a competent court. Most importantly, it emphasises that the article shall not be used to delay or prevent the abolition of capital punishment in any of the member states. It also states that the death penalty shall not be carried out for minors under 18 or pregnant women. The Second Optional Protocol to the ICCPR in 1989 gave a boost to the abolition of the death penalty wherein member states agreed to not execute anyone within their jurisdiction. The United Nations General Assembly through several resolutions from 2007-18 also has urged states to protect the rights of those facing the death penalty and restrict the number of offences punishable by death.
The biggest challenge in movements against the death penalty is the lack of precise information. Countries like China, Vietnam, and Belarus do not disclose their figures, distorting global statistics. Available data points to a gory picture with over a thousand executions taking place in 2019 in China alone. The United Nations Declaration on Human Rights ensures that the Right to life is unalienable in all circumstances and that no one shall be subjected to any form of torture or inhumane treatment. Thus, the dilemma lies in whether states possess the power to deprive life, even by an established procedure. This is only worsened by the possibility that innocent people can be executed. But the most fundamental question is whether there is any proof that death penalties create social change by significantly reducing rates of crimes. Most international organisations including Amnesty concur that there is no evidence to conclude that death penalties deter crime and this should give us further impetus to campaign against it. The numbers do not lie and as more countries choose the path towards abolishment, India should be reconsidering its stand.
India and the death penalty: Mapping the changing stances in the light of judicial decisions and Human Rights concerns
The execution of the Nirbhaya convicts was the first death penalty carried out after the 2015 execution of Yakub Memon who was convicted in the 1993 Mumbai blasts. Yet, this is not an indicator that the practice of awarding death sentences in India is declining. Conversely, the number of death sentences courts have handed out in 2018 has jumped to the highest in two decades where 162 people were sentenced to death. This is attributed mainly to changes in India’s penal laws especially those regarding sexual violence.
In India, executions are conducted by way of hanging[ii] and shooting[iii]. A total of 59 sections spread over 18 central legislations in India allow the death penalty and 12 of these sections are under the Indian Penal Code of 1860. Our constitution also empowers State Governors and the president to suspend, pardon, or commute death sentences.[iv]
Article 21 of our Constitution states that no person can be deprived of their lives except through a lawful procedure and there have been several contrasting judgements questioning the constitutional validity of the death penalty. In 1973, the Supreme Court in Jagmohan Singh v State of UP[v] upheld the constitutional validity of the death penalty and in 1979, in Rajendra Prasad v State of Punjab[vi] Justice Krishna Iyer ruled that the death penalty was violative of Articles 14, 19, and 21 of the Indian Constitution. This was subsequently overruled in the Bachan Singh[vii] case which laid down the proposition that the death penalty must be used only in the “rarest of rare cases”. Building upon this decision, in Machhi Singh v State of Punjab[viii] the court delved deep into the instances where the death penalty can be carried out. Most notable of these points was that life imprisonment is the rule and that the death sentence is an exception. Yet, we do not possess a commonly accepted guideline and the final decision comes to each Judge’s conscience and beliefs. When in 2013, the Criminal Law (Amendment) Act [ix]was passed to include the death penalty for perpetrators of rape that leads to death or causes the victim to be in a vegetative state, it had discarded the recommendations of the Justice Verma Committee to extend their sentences to the rest of their natural lives and this only contributes to the grey area that exists in this aspect.
Research by the National Law University, Delhi reveals that prisoners spend long and gruelling years on the death row which in itself can be extremely debilitating. This burdens their families to procure continual legal representation mostly through private lawyers as the quality of India’s legal aid is inconsistent. The extension of legal proceedings for over five years has been considered a violation of speedy justice under Article 21 of the Constitution according to the National Court Management Systems Committee of the Supreme Court. But we are far from securing this right for our prisoners and this is reflected in cases that pan out for several years. Eighty percent of the participants also admitted to having suffered custodial torture and are subjected to inhumane and extreme forms of physical and mental harm. When this is coupled with solitary confinement, lack of medical facilities, and opportunities for work and education a situation where the future remains an ominous question mark is created. research also confirmed that the imposition of the death penalty is disproportionate with three-fourth of the prisoners in the study coming from economically vulnerable and marginalised sections of our society. We should be asking a very simple question: Are we unfairly allowing loopholes that corner the powerless and enable the rich to escape their crime to exist?
India’s 262nd Law Commission report (2015) took a very welcome departure from its earlier versions by recommending that the time has come for India to abolish the death penalty except in cases of terrorism. It concluded that the death penalty does not serve the goal of deterrence any more than life imprisonment. Our present system is lacking in several aspects, regarding the treatment of prisoners and the lack of sensitivity with which their cases are dealt. An effective way for India to abolish the death penalty will be to invoke the powers of the Constitution. For example, the Constitution of Sao Tome and Principe, a small island nation, has the same provisions etched in their Article 21 as ours; the “Right to life”. But what separates them from us is that it states boldly that “Human life is inviolable and in no case will there be a death penalty.”
For families of victims who have lost their lives and suffered incomparable pain, a death sentence on the perpetrator is justice for their loved ones. A call for the abolition of the death penalty in no way seeks to undermine their sufferings. It is a complex issue hinging on morality, justice, and conscience. But one important factor remains; prisoners on the death row also have the inviolable right to life and we cannot shy away from acknowledging this. India and all other countries which still practice death penalties should ensure that a robust legal system is in place to deal with crimes effectively and impose proportionate punishment.
[i] Bachan Singh v. State of Punjab, 1983(1) SCR 145(a) para. 224, Supreme Court of India, 1980. [ii] India Criminal Procedure Code, ch. XXVII, art. 354 (5), 1973. [iii] Army Act, art. 166, Act no. 46 of 1950, May 20, 1950. [iv] The Constitution of India, part V, ch. I, art. 72, Dec. 1, 2007. [v] Jagmohan Singh vs The State Of U. P on 3 October, 1972 1973 AIR 947. [vi] Rajendra Prasad Etc. Etc vs State Of Uttar Pradesh on 9 February, 1979 AIR 916. [vii] Supra, note 1. [viii] Machhi Singh And Others vs State Of Punjab on 20 July,1983 AIR 957 [ix] Criminal Law (Amendment) Act 2013, sec. 9, Act no. 13 of 2013, 2013. Title Image source: The Online Citizen
This article has been written by Soumya S. Soumya is a second-year undergraduate law student studying in Gujarat National Law University, India, pursuing B.A. LL.B. (Hons.). She is interested in International law and Environmental law with a focus on making these laws more accessible to people.