DEATH PENALTY- Should be Retained or Abolished? – An essay by Student Shruthi Nair.
Take no life, which God has made sacred, except by the way of justice and law. Thus does He command you, so that you may learn wisdom.
This verse teaches us that although murder is considered a sin, it is acceptable to use capital punishment when required by law. Capital punishment may be the most severe sentence but one that may be commanded by a court for crimes of suitable severity.
Capital punishment is a legal penalty in India. Section 303 of the Indian Penal Code provides for a mandatory death sentence for the offenders who committed murder while serving a life sentence. In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860, which listed a number of capital crimes. It remained in effect after Independence in 1947.
As Justice Kurian Joseph retired in 2018, he will be remembered for his last judgement. He was opinion that time has come for reviewing the need of death penalty as a punishment, especially its purpose and practice. Whether it serves any goal at all as a punishment. Death penalty will however continue to remain constitutionally valid because of the Bachan Singh v/s State of Punjab case which made it very clear that capital punishment in India can be given only in rarest of the rare cases. This was the ruling of the Supreme Court of India. Rarest of the rare category also includes honour killings. The court also recommended death penalty for police officials who commit police brutality in the form of encounter killings.
The Parliament of India in addition to the Indian Penal Code have provisions for death penalty enacted on the basis of a series of legislation.
- Under The Commission of Sati (Prevention) Act, 1987 Part II, section 4(1), if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death.
- Under Section 3(2)(i) of the Scheduled Caste and Scheduled Tribe(Prevention of Atrocities) Act, 1989, bearing false witness in a capital case against a member of such caste or tribe resulting in that person’s conviction and execution, carries death penalty.
- The Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed which applied a mandatory death penalty for a second offence of “large scale narcotics trafficking”
Death penalty has also been imposed under new anti-terrorism legislation for people convicted of terrorism related activities. The Nirbhaya case of 2013 led to the passing of an ordinance which applied for death penalty in case of rape. The Criminal Law (Amendment) Ordinance, 2013 was promoted by former President Pranab Mukherjee. A case of rape which leads to the death of the victim or leaves the victim in a persistent vegetative state provides for death penalty. Repeated rape offenders can also be handed death penalty under this law. In 2016, the Anti-Hijacking Act was passed. According to this Act, the hijacker shall be appointed the penalty in case of death of the hostages or the crew. The recently amended Protection Of Children from Sexual Offences (POCSO) Act has included provision of death penalty in cases of sexual offences against children the Act grants for death penalty for the rape of children under the age of 12.
The debate whether the death penalty is the right option has been going on for a long period of time. When looked in to from the view of victims and their families, death penalty is the right option in case of rape or acts of terrorism because someone has lost their loved one and they will attain peace only when the attacker gets the same punishment or fate as of their loved one. Then there is another group of people who believe that death penalty is not the answer, that “An eye for an eye makes the whole world blind”. Maybe, thy are right but maybe it is also possible that they have not faced any situation in their family where they lost their loved one to any of such crimes it is also possible that this group includes those who have been a victim but are forgiving towards the attacker/ abuser because they believe that such kind of penalty is inhumane and that God will be there to punish them for their crimes.
Even though a rape takes place and a death penalty is awarded, there have not been any reduction in the cases. The crimes have instead increased and the penalty has not shown its effects that the judicial system wants. Take the case of Ajmal Kasab, the terrorist who killed many during the 26/11 attacks in Mumbai. He was made to believe that if he dies, he would be doing this for his country. That he would be a martyr. There may be many like him who are made to believe the same thing. Here, death penalty means nothing to them except for a form of martyrdom. In the cases of hijacking and honour killings too, this may be the case.
In the year 2018, a hundred and sixty two death sentences were imposed by trial courts which was the highest since 2000. However, the Supreme Court commuted death sentence for eleven out of twelve cases. The most death penalty was used by the state of Madhya Pradesh at twenty two. The Madhya Pradesh awarded most of the death penalty with regards to sexual abuse on children below twelve years of age.
It is argued that death penalty is not necessary for the punishment of terrible crimes and wrong doers. That punishments like life imprisonment could be much effective as it would keep the criminals in isolation from the society. It will also lead to fear in the minds of others who might have got inspired by such criminals. People are okay with government punishing the guilty ones as their numbers are reduced. But then the government should not misuse the power it has in its hands. This is a concern because the President has the right to suspend, pardon, or commute death sentence. So the disposal of mercy petition are based on personal opinion of an individual. Such kind of decision should not be an individual’s job. Also, the issue of Human Rights arises. Death penalty is characterized as a human rights issue rather than a punishment. Other concerning fact is that many studies show that poor people are awarded penalty at a higher rate as compared to others. Also public opinion plays a major role like in the case of Delhi gang rape.
It is to be noted that India faces a different law and order situation as compared to other developing or developed nations. There have been many instances of cross border terrorism in India. Therefore, there is no guarantee that with the abolition of death penalty, crimes rate would come down. Maybe this is the reason why India has always voted against the resolution of calling of death penalty.
The main reason for punishment not giving the desired result is due to the delays in the judicial system which is one of the most important issue to be looked in to. In August 2015, the Law Commission had recommended abolition of death penalty except in terror related cases. The process for the same, however, has been slow. Giving capital punishment shows that certain crimes will not be tolerated by society and help in curbing the same. Death penalty is justified because it saves lives of innocent people from would be criminals. Although it does not deter all murders, it discourages murderers to some extent. Capital punishment will always be a controversial issue. It is in now in the hands of the judicial system as to what would be the most appropriate thing to do with respect to society.