END TO DEATH PENALTY: NEED OF THE HOUR?

“Returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars” is one of the most insightful quotes by Martin Luther King Jr. which has pertinently pointed out the humanitarian feelings towards respecting human life that must be an innate quality of every human being, also necessary for being human.

Life has been, since time immemorial considered as a gift of the divine, bestowed by the supernatural power which and which cannot be started or put to an end with human wishes. The same has been recognized by the laws of the land in various countries across the globe, including India which has made the Right to Life as a fundamental right under Article 21 of the Indian Constitution, thus giving it a sacrosanct value and placing it on one of the highest pedestals in the eyes of the law.

The right to life has been respected and recognized to such an extent that even committing suicide has been classified as a penal offence in India, carrying a punishment up to one year or fine or both. Thus, the law has even prohibited taking up of one’s life, even through active means of committing suicide by an overt act or even following religious tenets whose ultimate aim is to case the death of an individual. The simple rationale behind this act of prohibition is that if some religion or activity is not capable of giving birth to a human life, it should not be capable of taking away this precious gift of god away from him.

However, the law of the land in India, including the Indian Penal Code, 1860 along with the Criminal Procedure Code, 1973 give wide discretionary powers to put end to a human life through state action as a punishment for various offenses.

DEATH PENALTY: A LEGAL STANDPOINT

Death Penalty as a form of punishment has been carried on in the world through time immemorial, where the modus operandi of eliminating crime was to eliminate criminals from the society. This created a deterrent effect on the minds of other criminals and thus gave birth to the deterrent theory of punishment in criminal jurisprudence. However, on the contrary, the reformative theory of punishment also took birth in the same soil which pertinently mentioned that the principles of natural law state that every culprit should be given a chance for redemption and reformation, in order to kill the thoughts rather than killing the man. Thus, in India, both the tenets of deterrent theory and reformative theory of punishment are applicable hand in hand.

The Indian state is one of the Seventy – Eight countries across the globe which still support the infliction of death penalty upon those accused of serious and heinous offenses. However, according to the constitutional and legal mandate, such punishment has to be accorded in the “rarest of the rare” cases, which was pertinently pointed out by the apex court of the country in the matter of Bachan Singh V. State of Punjab. This doctrine, in itself runs contrary to the reformative theory of punishment which enables the culprits to seek redemption for their crimes and live a humanly life with the support of the society and the government. However, the “rarest of rare cases” doctrine has not been mentioned anywhere in any legislation and is just a judicial innovation, holding ground through the set precedents in various cases.

This gives a wide discretion to the judiciary to decide upon the parameters for holding any cases as a case which shakes the collective conscience of the society and the country. Thus, the judicial discretion may be arbitrary and the factors which may be used in deciding any case may not be uniform, leading to violation of right to equality of the culprit who may be hanged to death for an offense whereas a culprit who committed a similar offense was let off by a different judge for reasons best known to his discretion. This runs contrary to the law of precedents followed in the common law jurisdictions too.

Still, the doctrine along with its constitutionality has been upheld in various landmark judgments including Machi Singh V. State of Punjab and Jagmohan Singh V. State of Uttar Pradesh.

AN INTERNATIONAL STAND – POINT

Death penalty, as a part of the colonial legal framework, being borrowed from the British legal system, has been abolished in Britain itself. The Human Rights Act which is the law of land in the United Kingdom has laid down that no police official or court can execute someone or sentence to death as a measure of punishing them. This right has, moreover been laid down as an absolute right, which cannot be curtailed by any legislation, order or judgment, thus placing the sacrosanct gift of life and the right to enjoy it with dignity at the highest pedestal. However, India has not yet recovered from it’s colonial past with respect to this provision even though many such draconian laws have been put to sleep through various enactments and amendments.

Even in one of the most advanced countries in the world i.e., United States, death penalty has been abolished by 23 states and there has been a widespread movement in the past and present to completely eradicate it.

In India, the Supreme Court has also ruled that prolonging the execution of death sentence is not only inhumane but also puts a dehumanizing impact on the minds of the prisoners for whom each and every day becomes even worse than death. Even senior judges of the Supreme Court like Justice Krishna Iyer, in the landmark judgment of Rajendra Prasad V. State of U.P has noted that capital punishment is violative of Article 14, 19 and 21, commonly known as the “Golden Triangle”. Even Justice Bhagwati, in his landmark judgment of Bachan Singh V. State of Punjab has dissented from the main line of judicial thought and pointed out that death penalty not only runs contrary to the spirit of the constitution but also is undesirable from many points.

THE WAY FORWARD

Though there has been a drastic decline in the number of death penalties actually given to those who had been punished under this provision, the life and liberty of those who have been awarded death penalty still remains completely in the hands of the government.

The Supreme Court often mitigates the death penalty to a lower punishment like rigorous life imprisonment but the trial court often indiscriminately awards death punishment by strictly adhering to the statutory provisions, which can be evidently pointed out from the instance that trial courts all over India have already sentenced more than 50 death penalties in the first quarter of 2022 itself.

The task to bring a parity and uniformity in death sentence punishments is a herculean task before the legislature and Supreme Court, who have tried innumerable times to bring out precedents and evolve doctrines but still there lies a heavy room for arbitrariness.

One of the best solutions for these problems is abolishing death penalty as many developed nations have already done and bring about a change in the legal framework of the country to give every individual a chance for redemption. India, being the land of many great sages like Buddha, Mahavira, Guru Nanak and even Mahatma Gandhi who preached non – violence should adopt the way of non – violence and give every sinner a chance to mend his future and absolve the state from the duty to kill the criminals instead of rehabilitating them.

All views are strictly personal and do not correspond to any political, economic or religious thought. The author is a law student residing in New Delhi, India and can be reached at Akashssharma02@gmail.com.

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