Life and Death

Life and Death

News: The Supreme court has referred to a larger bench issues relating to procedural norms for imposing the death sentence on a convict. The intervention is seen as a major step in plugging the gaps in the way in which trial courts award the death sentence. 

What was acknowledged by the court?
• The SC stated that, “current practice places the convict at a hopeless disadvantage, tilting the scales heavily against him.” 
• There were conflicting judgements on when and how the hearing on the sentencing should take place, and referred the issue to a five-judge Constitution bench.
• There was difference of opinion and approach amongst various judgements, on the question of whether, after recording conviction for a capital offence, under law, the court is obligated to conduct a separate hearing on the issue of sentence. 

What is the difference of opinion that court referred to?
• In Bachan Singh vs State of Punjab, the SC upheld the constitutionality of capital punishment on the condition that the punishment will be awarded on the “rarest of rare” cases. The ruling also stressed that a separate sentencing hearing would be held, where a judge would be persuaded on why a death sentence need not be awarded.
• The position was reiterated in several subsequent rulings of the court, including in Mithu vs State of Punjab 1982. 
• However, the courts have given conflicting rulings on when that separate hearing is supposed to take place. 

What are arguments supporting Death penalty?
• Deterrence – It is the most commonly expressed rationale for the death penalty. The proponents of death penalty justify it for the greater utility of the society as it has a brutalization effect, thereby creating significant deterrence. 
• Principle of Proportionality – Justice according to many is best served the punishment awarded is proportional to the seriousness of the offence. 
• Retributive Justice – As quoted by John Locke, “if someone violates another’s right to life, they forfeit their own right to life.” 
• Procedure established by Law – As much as Article 21 ensures Fundamental right to life and liberty for all persons, it also adds no person shall be deprived of his life or personal liberty except according to procedure established by law. It means if there is a procedure which is fair and valid, then the state by framing a law can deprive a person of his life. 
• Conforms to Will of people – A survey in 2012 found that nearly 70% of Indians believed it is necessary to continue with capital punishment. 
• The constitution of India and our nations democratic principles rely on the state to provide safety, security and enforcement of the faith of the public in the legal system. 

What are the ethical issues with Death penalty?
• There is no statistical proof of Death penalty as biggest deterrent or more effective deterrent than less severe punishment such as life imprisonment. 
• Capital punishment does not rehabilitate prisoner’s, which is the very purpose of punishment. 
• There is no moral or constitutional value of Retribution in a civilized society as death penalty represents an eye for an eye which basically refers to vengeance rather than retribution. 
• It is against human dignity and violative of the inalienable right to life, even of those who are on the other side of the law. 
• A structural discrimination is observed in India against those from a certain caste, class, and religion. In a 2016 study analyzing profiles of 385 death row prisoners, Project 39A, a criminal reforms advocacy group, found that 76 percent of such prisoners belonged to scheduled castes and scheduled tribes, other backward classes or religious minorities. (Keep a note of such data) 
• Another 2020 study by Project 39A highlighted that 72 percent of all cases in which Delhi trial courts awarded the death penalty from 2000 to 2015 cited “collective conscience of the society” as an influencing factor. 

What about role played by the SC recently?
• The Supreme court in its reference stressed that a trial court must take into account ‘the social milieu, the age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, and other relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused. 

What should be the way forward?
• The state must work on progressive development of human rights to ensure human dignity and to serve the cause of fair justice by resolving the issues of laws, ailing criminal justice system. 
• State must ensure that mercy petition act as final bulwark against the miscarriage of justice with time bound action. 
• To bring consistency in practice and, thus, ensure that those facing capital punishment get a hearing that’s fair, humane – and just. For, it’s about life and death.