Death Penalty and Challenges associated with it

Death Penalty and Challenges associated with it

News: The Court’s recent judgment in Manoj and Ors. Vs State of MP seeks to address the long ignored yet critical aspect of death penalty sentencing. This Specific attempt must be seen with the Court’s apparent discomfort over the last year with procedural unfairness in sentencing being carried out by the lower courts. Supreme Court has recognised Socio-economic circumstances as a mitigating factor by courts in various death penalty cases.

• Capital punishment or death penalty, is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence. It is the highest penalty awardable to an accused.
• Generally, it is awarded in extremely severe cases of murder, rapes, treason etc.
• The death penalty is seen as the most suitable punishment and effective deterrent for the worst crimes.
• Those who oppose it, however, see it as inhumane. Thus, the morality of the death penalty is debatable and many criminologists and socialists all across the globe, have been long demanding abolition of the death penalty.

What is the process of awarding a Death Penalty?
• In trial court, after the proceedings as specified by the Code of Criminal Procedure, the judge pronounces the judgment.
• After the decision by the Session Court, a high court needs to confirm the death sentence.
• The high court may confirm the death sentence or pass any other sentence or annul the conviction.
• The High Court also has the power to withdraw a case pending before a subordinate court and conduct the trial and may award the sentence of death.
• Special leave petition-After the death sentence is confirmed by the High Court, an appeal by Special Leave Petition under Article 136 of the Constitution may be filed with the Supreme court.
• Under Article 136, the Supreme Court decides whether the special leave petition deserves to be heard as an appeal or not.
• Curative petition - The Supreme Court may allow a curative petition to reconsider its judgment or order if it is established that there was a violation of principles of natural justice or suspicion of bias in the role of a judge. The curative petition would be circulated before the same bench which decided on the review petition.
• Mercy Petition - Articles 72 and 161 of the Constitution give power to the President of India and the Governor to grant pardons and to suspend, remit or commute sentences in certain cases.
• The president or the governor may consider the case of the convict and may pardon the death sentence.
• Death warrant- In cases where the death sentence is awarded, the convict should be allowed to use all the legal remedies available such as appeal, review and mercy petitions. The Supreme Court guidelines are needed to be followed before issuing the death warrant.
• Execution - Death sentence or death penalty is a punishment approved for committing the offence. The act of carrying out a death sentence is known as an execution.

Why Death Penalty is necessary?
• Capital punishment is often justified with the argument that by executing convicted murderers, we will deter murderers from killing people.
• People should get what they deserve in proportion to the severity of their crime. This argument states that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime.
• It is often argued that the death penalty provides closure for victims’ families.

What are the arguments against Death Penalty?
• The statistical evidence doesn’t confirm that deterrence works. Some of those executed may not have been capable of being deterred because of mental illness or defect.
• Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC), still, rapes continue to happen and in fact, the brutality of rapes has increased manifold, which question death penalty as an effective deterrent.
• Execution of the Innocent - The most common argument against capital punishment is that sooner or later, innocent people may get killed, because of mistakes or flaws in the justice system.
• In most of the developed countries death has been abolished as a form of punishment.
• Capital punishment doesn’t rehabilitate the prisoner and return them to society.
• Death penalty does not give another chance to person to work on his mistakes.

Supreme Court Rulings:
Jagmohan Singh vs State of UP 1973 case
• SC held that according to Article 21 deprivation of life is constitutionally permissible if that is done according to the procedure established by law.
• Death sentence imposed after a trial in accordance with legally established procedures under Cr.PC and the Indian Evidence Act 1872 is not unconstitutional under Article 21.
Bachan Singh vs State of Punjab 1980 case
• SC propounded the ‘rarest of rare cases’ according to which death penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed.
Machhi Singh vs State of Punjab 1983 case
• The Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not.

What is the Rarest of Rare cases principle?
• When the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme indignation of the community.
• When total depravity and cruelty are the motives behind a murder.

Way Forward
• The Law Commission in 2015, headed by Justice A P Shah proposed to abolish capital punishments. However, the commission had made the proposal only to non-terrorism case.
• The fundamental right to life and dignity enshrined under Article 21 of the Constitution also means the right to die with dignity.
• The principle laid down in cases like Bachan Singh or Machhi Singh has to be strictly followed so that the person convicted for an offense of identical nature is awarded a punishment of an identical degree.
• There must be a very high degree of fairness in a system that is interested in subjecting individuals to the experience of death row, and ultimately taking lives through the instrumentality of law. With that as the starting point, the criminal justice system needs to do all it can to ensure that systems are created for procedural fairness.
• Instead of merely enhancing punishment, tackling crimes against women and children requires broader social reforms, sustained governance efforts and strengthening investigative and reporting mechanisms.

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