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• The Supreme Court of India has highlighted that the judiciary has never attempted to make the death penalty non-existent.
• The court has said that the judiciary never tried to avoid capital punishment in deserving cases.
• The court has held that capital punishment should be awarded only in the rarest of rare cases.

About Capital Punishment or Death Penalty in India

• Capital punishment or the death penalty is a legal penalty for some crimes under the Indian Penal Code or other laws.
• 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.

 

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
  • 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

• All Guilty people deserve to be penalised in proportion to the severity of their crime.
• Real justice requires people to suffer in a way suited for the crime. Every criminal must get what their crime deserves and in the case of murder they deserve death.

 

Arguments against capital punishment

• 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.

 

https://www.thehindu.com/news/national/judiciary-has-never-tried-to-make-death-penalty-redundant-sc-judgment/article65562338.ece

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