send mail to support@abhimanu.com mentioning your email id and mobileno registered with us! if details not recieved
Resend Opt after 60 Sec.
By Loging in you agree to Terms of Services and Privacy Policy
Please specify
Please verify your mobile number
Login not allowed, Please logout from existing browser
Please update your name
Subscribe to Notifications
Stay updated with the latest Current affairs and other important updates regarding video Lectures, Test Schedules, live sessions etc..
Your Free user account at abhipedia has been created.
Remember, success is a journey, not a destination. Stay motivated and keep moving forward!
Refer & Earn
Enquire Now
My Abhipedia Earning
Kindly Login to view your earning
Support
Introduction: In Shankar Kisanrao Khade v. State of Maharashtra (‘Khade’), the Supreme Court of India, while dealing with an appeal on the issue of death sentence, expressed its concern with the lack of a coherent and consistent purpose and basis for awarding death and granting clemency. The Court specifically called for the intervention of the Law Commission of India on these two issues, noting that:
the courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided. Also, whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal While the standard applied by the judiciary is that of the rarest of rare principle (however subjective or Judge-centric it may be in its application), the standard applied by the executive in granting commutation is not known.
In order to understand the views of all the stakeholders, the 20th Law Commission released a Consultation Paper in May 2014. The Commission invited responses from those who desired to express their views on various aspects of death penalty. The Commission received over 350 responses, with varied views on the subject. Of those supporting the death penalty, the primary considerations were the deterrent effect of the death penalty; demands for retribution and justice in society; the demands of the victims’ family; demands that the punishment be proportional to the crime; and the view that certain “heinous” criminals were not deserving of an opportunity for reform. Of those advocating abolition, the primary concerns were the fallibility of the Courts and possibility of erroneous convictions; the absence of any penological purpose and the discriminatory and arbitrary implementation of the death penalty. Notably, late former President of India, Dr. APJ Abdul Kalam also sent a response to the consultation paper, highlighting the discriminatory impact of the death penalty.
To solicit further responses on the subject, the Commission also organized a day-long Consultation on 11th July, 2015 inviting eminent lawyers, distinguished judges, political leaders, academics, police officers, and representatives of civil society. The discussion traversed issues such as India’s constitutional obligations, arbitrariness and discrimination in the application of the death penalty, the quality of the criminal justice system and the failure of the rehabilitation framework.
Historical Background: An early attempt at abolition of the death penalty took place in pre-independent India, when Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the death penalty for IPC offences in 1931. However, this was defeated. Around the same time, in March 1931, following the execution of Bhagat Singh, Sukhdev and Rajguru by the British government, the Congress moved a resolution in its Karachi session, which included a demand for the abolition of the death penalty.
At independence, India retained several laws put in place by the British colonial government, which included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the Indian Penal Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be imposed under the law, including death. Many laws under which the death penalty continues to be imposed have to do with terrorist offences. For example, death sentences under the Terrorist and Disruptive Activities Act, 1987 (‘TADA’), Prevention of Terrorism Act, 2002 (‘POTA’), and Unlawful Activities Prevention Act, 1967 (‘UAPA’), continue to be imposed and upheld. For one thing, these death sentences are implemented even when the underlying law in some of these cases has either been repealed (TADA) or has lapsed (POTA). TADA in particular was repealed in the face of criticism for not respecting fair trial guarantees and amidst widespread allegations of abuse. Provisions in the TADA, POTA and now UAPA did not provide for the full range of fair trial guarantees: they defined offences vaguely, thus compromising the principle of legality; reversed the presumption of innocence in certain instances; allowed for long periods of pre-charge detention; made certain confessions to specific police officials admissible as evidence; and limited the right to appeal by only allowing appeals to the Supreme Court.
The international landscape regarding the death penalty: As compared to 1967, when the 35th Report of the Commission was issued, and 1980, when the Bachan Singh judgement was delivered, today a majority of the countries in the world have abolished the death penalty in law or practice. Even those who retain it, carry out far fewer executions than was the case some decades ago. At the end of 2014, 98 countries were abolitionist for all crimes, seven countries were abolitionist for ordinary crimes only, and 35 were abolitionist in practice, making 140 countries in the world abolitionist in law or practice. The list of 140 countries includes three that formally abolished the death penalty in 2015, i.e., Suriname, Madagascar and Fiji. 58 countries are regarded as retentionists, who still have the death penalty on their statute book, and have used it in the recent past. While only a minority of countries retain and use the death penalty, this list includes some of the most populous nations in the world, including India, China, Indonesia and the United States, making a majority of people in the world potentially subject to this punishment.
Capital punishment has been regulated in international human rights treaties as one aspect of the right to life, as contained in the International Covenant on Civil and Political Rights (‘ICCPR’). The International Covenant on Civil and Political Rights (‘ICCPR’) is one of the key documents discussing the imposition of death penalty in international human rights law. The ICCPR does not abolish the use of the death penalty, but Article 6 contains guarantees regarding the right to life, and contains important safeguards to be followed by signatories who retain the death penalty. Similar to the ICCPR, Article 37(a) of the Convention on the Rights of the Child (‘CRC’) explicitly prohibits the use of the death penalty against persons under the age of 18. India has ratified the ICCPR and the CRC, and is signatory to the Torture Convention but has not ratified it. Under international law, treaty obligations are binding on states once they have ratified the treaty. In India, domestic legislation is required to make international treaties enforceable in Indian law. The Protection of Human Rights Act, 1994, incorporates the ICCPR into India law through section 2(d) and 2(f). Section 2 (d) states that, “human rights” means the rights relating to life, liberty equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. Section 2(f) states that, “International Covenants” means the International Covenant on Civil and Political
Conclusion: The death penalty does not serve the penological goal of deterrence any more than life imprisonment. Further, life imprisonment under Indian law means imprisonment for the whole of life subject to just remissions which, in many states in cases of serious crimes, are granted only after many years of imprisonment which range from 30-60 years. Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime. It is essential that the State establish effective victim compensation schemes to rehabilitate victims of crime. At the same time, it is also essential that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases. The voices of victims and witnesses are often silenced by threats and other coercive techniques employed by powerful accused persons. Hence it is essential that a witness protection scheme also be established. The need for police reforms for better and more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis. In retaining and practicing the death penalty, India forms part of a small and ever dwindling group of nations. That 140 countries are now abolitionist in law or in practice, demonstrates that evolving standards of human dignity and decency do not support the death penalty. The international trend towards successful and sustained abolition also confirms that retaining the death penalty is not a requirement for effectively responding to insurgency, terror or violent crime.
By: Abhishek Sharma ProfileResourcesReport error
Access to prime resources