The Criminal laws were made more stringent, when in the year 2013 the Indian Penal Code, 1860 stood amended and Section 376A was inserted which enunciates death penalty for the offence of rape resulting into persisted vegetative state of victim or death. The amendment was caused pursuant to the suggestions recommended by the Judicial Committee formed by the Central Government to provide suggestions to "severely" deal with sexual assaults against women which is visibly an aftermath of vicious gang rape and murder of a 25 year old in Delhi in 2012. The Judicial Committee headed by J.S. Verma, a former Judge of Supreme Court and included former Judge of Delhi High Court Leila Seth and leading Advocate Gopal Subramanium submitted their report within 28 days along with suggestions inter-alia not suggesting death penalty as punishment for rape basing the argument on the International laws and for the larger interest of society, having regard to the current thinking in favour of abolition of death penalty. However, taking a departure from the well-reasoned and morally entrenched suggestion of the Committee, the bill which ultimately culminated into Criminal laws (Amendment) Act, 2013 provided death penalty as punishment for rape by way of (newly inserted) Section 376A in IPC. The present article makes an attempt to comprehend the step of introducing Death Penalty for rape from the context of international laws and notions and how the step can be termed to be regressive on the face of world trend to abolish death penalty; more so when there is no evidence evincing the death penalty's ability to deter crime. The step also runs contrary to reason provided by Lord Macaulay while drafting different punishments for murder and rape under IPC; which according to him was to serve the restraining motive for the ravishers to spare the lives of the people already injured by them. The only reason for providing death penalty for murder by Lord Macaulay was deterrence; which even after several decades remains at best, unproven. The present Article debates on how by taking a step to introduce death penalty for rape amongst other offences, India is taking a step backward in its societal progress from barbarity to civilized refinement; and also the uncertainty and indeterminacies in judicial decision as well as non-systematic invocation of death penalty which emits the stench of arbitrariness.
On crime and Punishments- Beccaria's treatise in 1764
On crime and punishments is the first critical analysis of capital punishment that demanded its abolition. Beccaria described "it appears absurd to me that the laws, which are the expression of the public will and which detest and punish homicide, commit murder themselves, and in order to dissuade citizens from assassination, commit public assassination." By further quoting that "every act of authority of one man over another that does not derive from absolute necessity is tyrannical" Beccaria argued if an equal punishment is intended for two crimes which does not injure society with the same degree, there is nothing to deter men from committing the greater crime. The quintessence of this is found in argument given by Lord Macaulay to not provide death penalty for rape under IPC citing the same can serve as an inducement to ravishers to spare lives of victims.
The treatise (got published in the year 1764) condemned the death penalty and was a founding work in the field of penology in which Beccaria argued that abolishing the death penalty was crucial to a society's progress. The argument was founded on two reasoning; one the death penalty runs contrary to the core objectives of the criminal justice system i.e. reformation and rehabilitation of the criminals and other the right of the state to take life of its citizen is actually opposed to social contract from which it derived its sovereignty.
Yet, even after centuries after Beccaria published his thesis, the public will stands at same with its same logic of seeking deterrence by imposing death penalty.
International Human Rights Treaties
Capital punishment has been regulated in international Human Rights treaties as an aspect of the right to life, emphasis can be seen from the International Covenant on Civil and Political Rights (ICCPR). The ICCPR does not expressly abolish the use of the death penalty, albeit Article 6(1) palpably declares "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The article also provides for important safeguards to be followed by signatories who retain the death penalty and obliges the imposition of death penalty only for the most serious crimes; whereas, Article 6(4) requires States to ensure that "anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon, commutation of the sentence of death may be granted in all cases". UN Human Rights Committee which monitors the ICCPR (and whose interpretations of the ICCPR are considered authoritative) discussed Article 6 of the ICCPR in detail in its General Comment in 1982 and clarified that the abolition of death penalty is desirable and any move towards abolition would be considered as "progress in the enjoyment of right to life"1. The Committee also made it expressly clear that the death penalty should be an "exceptional measure". At present, there are 173 States, including India as parties to the ICCPR. After reviewing India's report in 1996, the Committee recommended that India "abolish by law the imposition of the death penalty on minors and limit the number of offences carrying the death penalty to the most serious crimes, with a view to its ultimate abolition".2 Yet the said observations of the Committee, the least has changed till date as India not only continue to retain the death penalty but also continue to legislate it by new legislations and while doing so it has cluttered the rational penology which was the basis of its substantive Criminal law.
The Second Optional Protocol to the ICCPR
This is the only treaty directly concerned with abolishing the death penalty and commits its members to abolish death penalty within their borders. It came into force in the year 1991 and has 88 States parties. India has not signed this treaty and there are more than one hundred and forty Countries who have abolished the death penalty in law or practice. UN Commission on Human Rights has adopted the four resolutions to impose a moratorium on death penalty until such time as death penalty is fully abolished and the first such resolution is dated 18th December 2007 which calls upon States which still retain the death penalty to "progressively restrict the use of death penalty and reduce the number of offences for which it may be imposed". Nevertheless, going entirely on the opposite side, there are almost 6 legislations enacted by India on/after December 2007 which provides for death penalty3 and shifting its focus of dire and significant needs to maintain law and order and need to reform prisoners as well as commitment to make a better Society to curb the crimes especially crimes against women and children.
Uncertainty and indeterminacies in Judicial Decision
Considered to be ultimate irreversible denial of human rights4 the penalty of death, in the words of Justice Stewart5, differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability as well as in its rejection of rehabilitation of the convict which is a basic purpose of criminal justice. Punishment of death which is perfectly legal in India where as many as 24 Central and State Legislations provides for Death penalty as a highest punishment without providing the manner in which it can be inflicted. Section 354(3) Cr.P.C. emphasis on providing special reasons by the Court while imposing a death sentence, which is construed by the Supreme Court to be implied as "exceptional reasons" and a consequent leading to narrowing down the award of death sentences to the "rarest of rare" cases in Bacchan Singh v. State of Punjab6; a concept which can possibly be argued to not be an absolute rule for its invariable application. Yet the same has been profoundly discussed and concretely defined by three Judge Bench in Machhi Singh v. State of Punjab7 which deployed "Balance Sheet test" to compare "aggravating" circumstances of the crime and "mitigating" circumstances of the criminal i.e. to compare the injury or wrong committed and pain or suffering imposed. Two circumstances which is stated to be complete distinct and different elements and hence incommensurable by Justice (Retd.) Madan B. Lokur (currently a Judge of Supreme Court of Fiji) in Sangeet v. State of Haryana8; yet the same was religiously followed by three Judge Bench in Vasant Sampat Dupare v. State of Maharashtra9. While evolving the balance sheet test, Machhi Singh propagated the element of uncertainty and arbitrariness in decision making and added "collective conscience" as an aggravating factor in the test, which factor surely has become one of the strongest elements in the death penalty jurisprudence. However, having regard to the recent gory and appalling crimes against women, what can constitutes rarest of rare crime and shock collective conscience of the Society now seems to be all normal and nevertheless more stringent laws passed by the legislature in the year 2013 has barely ceased to be occurring. Which implies, the solution is visibly is not and can never be "hang the murderers and the rapists and we will deter all future crime".
The fact that capital punishment is irrevocable and its danger is most evident from the Judgment of Supreme Court in Santosh Kumar Bariyar v. State of Maharashtra10 which declared Ravji alias Ram Chandra11 (that led to the erroneous execution of Ravji Rao and Surja Ram on May 4, 1996 and April 7, 1997) as per incuriam and ruled that previous Judgments of Court in which 13 death sentences were validated, are per incuriam and passed in ignorance of the law laid down in Bacchan Singh. Such episodes are not only gruesome and dreadful but are way too big price to pay in an era where right to life is considered to be an inherent right and our Country has duty to protect it and prohibit the arbitrary deprivation of the same.
Arbitrariness in invocation of death penalty in India
The objectives of punishment are to deter the future commission of crimes, which the death penalty did not achieve and to reform the offender, which the death penalty obviously cannot achieve. There is no evidence to show that death penalty has deterrent effect upon the crimes; and States without the death penalty continue to have significantly lower murder rates than those that retain capital punishment12. So given the fact that capital punishment does not act as a deterrent and it cannot reform an offender (as nobody can reform a dead person), the only argument in its favour is retributive justice. Retributive justice, which prioritises justice for the public over crime control goals, requires offender who breaks the law to suffer in return and also requires the response to the crime to be proportional to the offence. However, keeping this principle in view, the offender in cases involving murder of large number of people requires to be definitely awarded with a death penalty. Least be it, the sentencing is always left at the discretion of the Judge which is held to be pre-condition for an effective compliance of Sections 354(3) and 235(2) Cr.P.C13. Exercise of such discretion can be seen invariably at a total preference of the Court, which preferences tend to change with the change of bench. In a Country with an episode of erroneous execution of two people and an admission of error on the part of 14 former Supreme Court Judges who appealed to President to commute the sentences of nine death-row prisoners; retaining death penalty sounds a constant death knell to the right to life. More recent judgment adding to the glory is Akash Maruti Shinde14 where Supreme Court has "acquitted" three persons who were sentenced to death by it in the year 2009 and also three others whose death penalty was confirmed by it.
The area of concern widens further and stares right at the decisions to retain the death penalty and further introduce the punishment by way of new legislations/ amendments with its random impositions. This is elaborative and self-explanatory where there are instances where Supreme Court has commuted the death sentences of a person found guilty of 9 murders15, of a person found guilty of rape and murder of two minors16, of a person found guilty of murder of 6 peoples (5 children and one wife)17, of a person found guilty of rape and murder of 5 year old18 and also of a person found guilty of murdering a woman by pouring acid on her face19; whereas, commutation was denied in cases involving single homicide20.
Recognizing the worth of non-negotiable human rights it was in the year 2015 the Law Commission of India submitted its 262nd report to the Government which recommended for abolition of capital punishment for all crimes in India, (excluding the crime of waging war against the nation or for terrorism-related offences). Since the matters relating to criminal procedures falls under the concurrent list in the seventh schedule of Constitution of India, Centre as well as State Governments have to accept or reject the recommendations and the report of the law Commission which makes a constitutionally entrenched argument for abolition of death penalty, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven deterring effect on criminals, even after 4 years is still pending for consideration with different States/ UTs.
1 Human Rights Committee, General Comment No. 6; Article 6 (Right to Life) (1982) at Para 6
2 UN Human Rights Committee, concluding observations of the Human Rights Committee: India at Para 4
3 Sashastra Seema Bal Act, 2007, The Bombay Prohibition (Gujarat Amendment) Act, 2009, Criminal Law (Amendment) Act 2013, Bihar Excise (Amendment) Act, 2016, Anti-Hijacking Act, 2016 and Prevention of Children from Sexual Offences(amendment) Act, 2019
4 Death Penalty Amnesty International
5 Furman v. Georgia 408 U.S. 238
12 A clear scientific consensus that the death penalty do not deter- Amnesty International
13 Santosh Kumar Bariyar v. State of Maharashtra (2009)6SCC498
15 Santosh Maruti Mane v. State of Maharashtra 2019(1)SCALE562
16 Accused X v. State of Maharashtra (2019)7SCC1
17 Jagdish v. State of Madhya Pradesh 2019(3)SCALE888
18 Sachin Kumar Singhraha v. State of Madhya Pradesh (2019)8SCC371
19 Yogendra @ Jogendra Singh v. State of Madhya Pradesh (2019)9SCC243
20 Ravi v. State of Maharashtra (2019)9SCC622, Ishwari Lal Yadav v. State of Chhattisgarh (2019)13SCALE392, Akshay Kumar Singh v. State Review Petition (Criminal) D No. 44603 of 2019
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