Introduction:

Capital punishment also called as death penalty is the execution of an offender sentenced to death after conviction by a court of law. The debate on whether to abolish the death penalty or not, has been raging in India and in several other countries for decades.

Brutal rapes in India have not decreased despite enforcement of the Criminal Law (Amendment) Act, 2013 which is a piece of legislation which prescribes the death penalty and life imprisonment for sexual assaults. No study has shown that the death penalty deters murder more than life imprisonment.

The debate around the death penalty has kicked in again as the four convicts of Nirbhaya Rape case are due to be hanged soon.

Body:

Problems with death penalty:

• The death penalty is error-ridden. For Instance, Between January 1, 2000 and June 31, 2015, the Supreme Court imposed 60 death sentences. It subsequently admitted that it had erred in 15 of them (25%).
• The landmark SC judgment in 2009 in the Santosh Bariyar case in which Justice Sinha went to the extent of admitting the undue influence of public opinion in awarding death. Besides citing the examples of the Bhagalpur blinding case and the attacks on Kasab’s right to trial in 26/11 case, the Bariyar verdict pointed to” the danger of capital sentencing becoming a spectacle in the media”.
• The death penalty unfairly targets the poor and marginalised.
• The late President, A.P.J. Abdul Kalam, had once said a study by his office into the background of convicts seeking mercy showed “a social and economic bias”.
• In 2016, National Law University released its Death Penalty Research Project consisting of interviews with death row convicts. It found a disproportionate percentage of the convicts (80%) were poor, backward castes or from the minorities.
• Those without capital get the punishment. Penurious prisoners on legal aid get it the most, while others with private lawyers remain untouched.
• Executions occurred in 2 cases for every 1 lakh murders. Such a selection cannot but be freakish.
• Constitutional, legal and policy issues cannot be determined by the victim’s understandable hunger for revenge without leading to a frenzy where the death penalty is demanded, as it often is, for wholly inappropriate cases (accidental deaths, cheating, etc.).

Necessity of Death Penalty:

• The punishment is not arbitrary because, it comes out of a judicial process. To call it arbitrary, one has to necessarily prove the process as flawed.
• It is being implemented in the “rarest of the rare” cases and the fact is during the last 13 years, only four people have been executed.
• The hanging of Ajmal Kasab and Yakub Memon strongly affirms India’s commitment to the protection of life.
• People criticise it on arbitrariness, irreversibility and human rights and these are not valid arguments.
• Its constitutionality is upheld, even in liberal democracies like U.S. It is not reflection of uncivilised society.
• India’s neighbourhood is not peaceful, unlike Scandinavia.
• It is not in a group of countries, like European Union.
• India has got troubled borders. Several forces are trying to destabilise the very idea of our Nation from across the Border.
• The sacredness of life can only be seen to be protected, if those who take it away are proportionately punished.

 The need to abolish Death Penalty:

• It unfairly targets poor and marginalised, that means, those without money & power.
• Executions occurred in around five cases for every 1 lakh murders and it looks quite arbitrary. It depends on judges personal beliefs.
• India’s murder rate has declined continuously since 1991 and at present the lowest, except for 1963.
• Punishment should not imitate crime.
• As per the recent Death Penalty India Report by the National Law University, Delhi, the structural flaws in our criminal procedure and criminal justice system are most pronounced in death penalty cases.
• Most of the civilised world abolished it. Death penalty has not deterred terrorism, murder or even theft.
• From 2000-2015, Supreme Court imposed 60 death sentences and subsequently admitted that it had erred in 15 of them. So, it clearly admitted that it has arbitrarily imposed the most extreme punishment.
• The Police is not known for its probity or efficiency in our Country.
• Delays in the Criminal Justice System disproportionately affects those, who suffer the tyranny of the uncertainty of their life.

The Law Commission of India has attempted to analyse the need for the death penalty.

• In its 35th Report correctly called for its retention in order to see its impact on a new republic, the more recent 262nd Report could not recommend the punishment’s absolute abolition.
• Cases of violent terror are constant reminders of the need to protect national stability by ensuring appropriate responses to such actions, and the death penalty forms part of the national response.
• It is in this idea that there exists a moral support for the death penalty. A punishment cannot be judged by its impact on criminals but by its impact on those who are still innocent etc.
• In 2015, the Law Commission called for abolition of the death penalty for ordinary crimes, and activists continue to argue for abolishing it altogether. Political will in India is still bound by populism.
• However, the provision of hanging to death may be re-considered as “the Constitution of India is an organic and compassionate document which recognises the sanctity of flexibility of law as situations change with the flux of time.”
• The fundamental right to life and dignity enshrined under Article 21 of the Constitution also means the right to die with dignity.
• However, the constitutionality of the death penalty will continue to be challenged and, sooner or later, the Supreme Court will have to answer whether absence of political will is sufficient ground to override the right to life.

 Conclusion:

Two-thirds of countries in the world has abolished it. India certainly does not need it as it serves no purpose. 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.