Need of Reforms in Laws of Death Penalty in India
NEED OF REFORMS IN LAWS OF DEATH PENALTY IN INDIA
- Ayush Garg, National Law University, Odisha
INTRODUCTION
"Hang the murderers and the rapists and we will deter all future crime\'\' seems to be the fundamental attitude that the country is inclined to. Nevertheless, as barbaric as death penalty may seem to be, it strikes to be a moral outcry to preserve social justice with the hope of condemning heinous crimes. Death Penalty has thus undoubtedly stood the test of time as a popular form of punishment since antiquity for it has fulfilled the multiple purposes of retribution, prevention and deterrence. However, the abolitionists have always urged on the fact that death penalty as a capital punishment cannot be justified in modern civilized society as the notion of retribution should not be attached to any form of punishment. These ambivalent views continue to govern the field and there is an unending debate on the retention of death penalty as a form of punishment. India pursued a range of changes from implementing life imprisonment rather than executions in 1955 to seeking specific grounds for the death penalty in 1973, up to 1980 when the Supreme Court limited the death penalty to the rarest of rare instances. It’s time for India to further make reforms in death penalty laws, reasons for the same are mentioned below.
ARBITRARINESS AND CAPRICIOUSNESS
When an adjudicator is called upon to practice his discretion regarding whether the blamed will be executed or will be allowed to live, his decision would depend to an enormous degree on his methodology and disposition, his inclinations and assumptions, his worth framework and social way of thinking and his reaction to the advancing standards of respectability and thoughts in penological statute. One judge may have trust in Upanishad that every human being is an incarnation of the divine and that any perpetrator can be reformed by affection and that it is cruel and inhuman to execute him, whilst another judge might feel that the perpetrator must be set down for social protection. The opinions of the judges may vary from judge to judge and are diverse due to their sense of principles and their moral ideology with the outcome that whether an individual is to survive or die, depends significantly on the nature of the Bench that decides his case and this manifest the imposition of death penalty arbitrary and capricious.
Evidence presented to Law Commission in relation to the public referendum at a nationwide review reinforces the image of ineffective, unfair and judge-centered usage of the capital Punishment. The Supreme Court took these numbers on board and claimed that this amount was alarmingly huge and it seemed like the death sentence was enforced even more broadly than Doctrine of Rarest of rare envisaged and also there are difference of judgment as the age of accused was given due recognition in a case but not in other, similarly, the accused-appellant\'s "immoral" connection was considered in one case to be a mitigating element and in the other an aggravating.
ARBITRARINESS IN SENTENCING
The probability that accused represented to by novice and inadequately paid attorney are bound to get capital punishment contrasted with the individuals who have the affluence to hold experienced lawyers and guidance who are paid to embrace the essential examination and research to protect their client. Police abuse – physical as well as emotional – is rife to obtain confessions. Many times, the naming of eyewitnesses appears misleading, so it becomes impossible to remove this reality through cross-examination. There have also been instances in which an excessively zealous lawyer does not show proof of his established conviction, but unseen to the prosecution. Therefore, there are no abstract criteria which can eliminate the probability of error in judgment.
The Death Penalty India Report (May 2016) reveals that inmates in the death row are among the poorest and most marginalized groups who cannot have proper legal protection. The criminal justice system is brutal and oppressive, and the highest toll is borne by the vulnerable and oppressed.
PROCEDURAL DELAY
In India, death row convicts usually spend years exhausting their criminal appeals. Once the death penalty is eventually upheld, a convict waits for years waiting for him to hear a request for mercy from the Governor and President. Generally, death row convicts are taken to solitary confinement once they get a death penalty from the court of trial and are exposed to multiple warrants for execution. A prisoner with a death penalty exists at the noose of a hangman and suffering from extreme distress, apprehension and weakening fear of the imminent execution and insecurity. The peculiar burden of living under a death sentence requires an emotional torment of the prisoner to expect the impending execution, one of the main aspects of the death row. The passing of each moment always gives the prisoner a promise of redemption, which then contributes to a continuous emotional battle whether or not he actually survives.
FLAWS IN IMPLEMENTATION OF CLEMENCY POWERS
The exercising of clemency powers by the executive has a greater propensity to be discretionary than the courts, particularly when there is no obligation for an executive to give grounds for approval or rejection of mercy petitions. There is a real concern that there is little accountability in the executive clemency process, particularly because a range of other external electoral pressures extraneous to the case could be placed on the State. While before the president was consulted on the requests for mercy, the government must take into consideration the socio economic factors and the age and health of each convict, the seriousness of the offence, regardless if the offense is premeditated or not and the conduct of the convict in prison was equally crucial for the Home Ministry. The secrecy of the clemency procedure allows the executive to be selectively and often irresponsiblely exert enormous control over the life or death of convicts. In many situations, the executive does not enforce the required laws when using the clemency powers. There are cases when the executive failed to take the mental illness in consideration, where the incomplete facts were presented to the president, where long delays in investigation were not taken into account while deciding mercy plea. This arbitrariness is completely unreasonable in matters of life and death.
INTERNATIONAL STANDARDS
Capital punishment founds its place in international human right treaties as a facet of right to life as imbibed in “International Covenant on Civil and Political Rights (‘ICCPR’)”, it was later discovered that implementation of capital punishment violates the norms of prohibition against cruel, inhuman, and degrading treatment and punishment and with enforcement of second ICCPR there had been an increasing trend towards the removal of capital punishment as a way of punishment. The ICCPR also made it expressly clear that the death penalty should be an “exceptional measure’’. After reviewing India\'s report in 1996, the Committee suggested 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". However said perceptions of the Committee, the least has changed till date as India keep on holding capital punishment as well as keep on administering it by new legislations and by doing so it has jumbled the rational penology which was the premise of its substantive Criminal law. International law reforms that also restricted the reach of the death penalty by keeping a check on the complexity of the offences that may be performed, regulating the way under which it may be enforced, and introducing safeguards for procedures.
India is still punishing and executing citizens to death and has even rejected all five moratorium resolutions of the General Assembly. In doing as such, India keeps pace with a minority of nations, which hold death penalty, and a much more modest number who really complete executions, a list that includes Iraq, China, Saudi Arabia and Iran.
CONCLUSION
The Indian Judiciary has been guided by the principles of Bachan Singh for over three decades now. But evidently there has been inconsistency in the application of the said principles by the courts, resulting in disparity in judicial decision. The Supreme Court of India which is well known for its activism needs to take up initiative to have a re-look into the existing regime on death sentencing. There is need for a uniform regime governing death sentencing in India, on the dearth of which death sentencing in India may go against the Constitution of India. It is time for the Indian legislature to step in and take pro-active measures to lay down a uniform legislative framework or to empower an independent body to perform the same, to ensure evenhandedness in criminal justice delivery in India.
REFERENCES
1. Law Commission, the Death Penalty report (Law Com No. 262, 2015) <http://lawcommissionofindia.nic.in/reports/Report262.pdf> as accessed 5 April 2020.
2. Amnesty International, Lethal Lottery: the Death Penalty in India (2008) < https://www.amnesty.org/download/Documents/52000/asa200072008eng.pdf> as accessed 5 April 2020.
