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Context: The Supreme Court ordered the Government of India to support the rule that permits hanging by the neck as a method of execution.

Details

• The question of whether the death penalty may be carried out more compassionately and respectably was discussed by a panel chaired by the Chief Justice of India (CJI).
• A panel headed by the Chief Justice of India (CJI) is reopening a discussion that has been going on for decades about whether there is a more humane and respectable manner to carry out the death penalty.

Background

• An advocate filed a public interest petition (PIL) in 2017 asking for a more humane method of carrying out the death penalty. He made the case that a convict whose life must end as a result of their conviction and punishment shouldn't be forced to endure the pain of hanging.
• In the PIL, the argument was made that Section 354(5) of the 1973 Code of Criminal Procedure (CrPC) was not constitutionally valid. According to this clause, "Any individual who is sentenced to death shall be hanged by the neck until he is dead."
• The PIL challenged the Supreme Court judgement made in the "Bachan Singh v. State of Punjab" case; a five-judge Supreme Court bench ruled 4:1 in favour of upholding the constitutionality of the death penalty.
• The Supreme Court had agreed to hear the 2017 PIL, and SC had issued notice to the Centre. According to court documents, the Centre submitted an affidavit in support of the present legal position in January 2018, but the case has not been scheduled since then. After five years, the case is now on the list.

Capital Punishment in India

• Capital punishment or the death penalty is a legal penalty for some crimes under the Indian Penal Code or other laws.
• It is the most extreme kind of punishment. It is the punishment laid out for the cruellest and most heinous crimes committed against humanity.
• In the Code of Criminal Procedure (CrPC), 1898 death was the default punishment for murder and mandated the judges to give reasons in their judgment if they desired to give life imprisonment instead of the death penalty.
  • The CrPC was created for the first time in 1882 and then amended in 1898.
• By an amendment to the CrPC in 1955, the requirement of written explanations for not imposing the death penalty was terminated.
• With the amendment of CrPC in 1973, life imprisonment became the norm and the death penalty was to be imposed only in extraordinary cases and required ‘special reasons.
  • The amendment also divided a criminal trial into two stages; one for conviction and another for sentencing.
  • The Code of Criminal Procedure, 1973, also contains a provision that the court must write "Special reasons" justifying the sentence and mention why an alternative sentence would not meet the ends of justice.
• In India, as per the current position of law, capital punishment is awarded only in the 'rarest of cases' and the primary method of execution as given under Section 354(5) of the Criminal Code of Procedure, 1973 is "Hanging by the neck until dead".
• According to the Indian Criminal Code (IPC), the following offences carry the possibility of the death penalty:
  • Murder
  • Corruption and murder
  • Criminal Operation
  • Waging or attempting to wage war against the Government of India.

Process of Death Penalty

• Trial Court
  • After the proceedings as specified by the Code of Criminal Procedure, the judge pronounces the judgement.
• High Court
  • 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 judgement 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
  • The 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.

Arguments in support of Capital punishment

• Every guilty person deserves to be punished in line with the seriousness of their offence. People must suffer according to their crimes for real justice to be served. Everyone who commits a crime must receive the punishment they deserve, and in the instance of murder, that punishment is death.
• Retribution is the belief that a person receives their punishment because they have earned it. Advocates of the death penalty occasionally bring up "an eye for an eye," and "the punishment should fit the crime," while making their case.
• A democratic country like India depends on the state to ensure public safety, security, and faith in the legal system. The capital penalty is frequently supported because the state has a moral obligation to protect the welfare and safety of its citizen After all, the Preamble of the Indian Constitution also refers to social justice.

Arguments against capital punishment

• The objective of punishment is to rehabilitate prisoners, but the death penalty does not do this. The purpose of the punishment is to transform the accused and enable him to rejoin society and contribute as a law-abiding citizen.
• Those who oppose the death penalty believe that execution is evil and is simply a refined form of vengeance. Furthermore, there is a lack of evidence from data collected globally that the death sentence lowers crime, particularly rape.
• Capital punishment is revenge rather than punishment and is a morally doubtful concept.
• Against Real or Proportional justice, as the criminal suffers for many years before execution, it makes the punishment more severe.
• There is always a risk of executing the innocent due to mistakes or defects in the justice system.
• The death penalty doesn't seem to deter people from committing serious crimes.
• The Law Commission of India recommended abolishing the death penalty, except in terror cases.

Way Forward

• In India, the current position regarding death sentences is quite a balanced one. But the broad judicial discretion given to the court has resulted in an extremely uneven judgment in similar cases; this does not represent a good picture of the Indian Judiciary.
• The principle laid down in cases like Bachan Singh or Machhi Singh has to be strictly followed so that the person convicted for an offence of identical nature is awarded a punishment of an identical degree.
• It is important to eliminate both the crime and the criminal, not just the criminal. If criminal law is viewed from a larger aspect and broader viewpoint, it can be seen that the goal of punishment is to promote an ordered community.
• By balancing the conflicting rights of the offender and the victim, it is possible to achieve the restoration of peace and stop crimes from happening afterwards.

PRACTICE QUESTION Q. Critically analyze the rationality of the death penalty.

https://indianexpress.com/article/explained/explained-law/debate-over-mode-of-capital-punishment-explained-8510590/