The Lawful Vendetta

The Author of this blog is Ms. Anusha Bhatt,  L.L.B. 2^nd Year Student, Government Law College, Mumbai.

Why do we kill people who kill people to show that killing people is wrong?

Despite being the largest constitutional democratic nation in the world, every now and then we have defied the norms of democracy. There have been multiple legal milestones that we have conquered and cherished over the years. Milestones have and always will protect the sanctity of our nation and constitutional morality. However, there are few elements in our society, like marital rape, dowry system, caste discrimination, and capital punishment that act as hurdles in protecting the sovereignty of the nation.  Among the above-mentioned elements, one of them is a form of vengeance practiced by the judicial authorities of our country. It is a capital punishment that has instigated the notion of quid pro quo in society and is practiced by the judiciary as an act of punishment.

Capital Punishment: Global Perspective

Capital punishment or death penalty means the legally authorized killing of a convict as a punishment for crime. The position of capital punishment around the globe is debatable as well. A number of countries stand in favor of abolishing the sadistic practice of capital punishment. According to Article 5 of the Universal Declaration of Human Rights, 1948 provides that no one shall be subjected to torture or to cruel, inhuman, and degrading treatment or punishment. The act of death penalty stands against the crux of human rights and violates Article 3 of the Universal Human Rights Declaration, 1948 which provides for the right to life, liberty, and security of human beings.[1] In the United States of America, the death penalty has been challenged through various cases, for instance, Furman’s case where capital punishment was challenged on the grounds of its violating the Eighth and Fourteenth Amendment.[2] However, the majority stood in complete support of capital punishment and held that it was constitutionally valid. In England, however, the practice of the death penalty was abolished by the Murder Act, 1965.[3] Figure 1 below, depicts the comparison of murder rates between the death penalty and non-death penalty states.[4]

 As of 2018, the inhuman act of capital punishment is practiced in more than 50 countries all over the world. Last year in 2019, twenty executions were performed out of which five of them were in Africa, one in the United States of America, thirteen from the Asia Pacific Region, and one in Europe. In India, four convicts were hanged to death on 20^th March 2020.[5] In our country, the death penalty is executed by hanging the convict by the rope. Crimes that attract capital punishment in India are-

·         Aggravated Murder (Section 302 of the Indian Penal Code, 1860)

·         Aggravated Rape (Section 9 of the Criminal Law (Amendment) Act, 2013)

·         Terrorism (Section 3B of the Explosives Substances (Amendment) Act, 2001)

·         Treason (Section 121 and 131 of the Indian Penal Code, 1860)

·         Kidnapping (Section 364A of the Indian Penal Code, 1860)

Since decades, there have been thousands of people including advocates, researchers, and scholars, social activists, and international organizations that have been protesting against the practice of capital punishment in India. Justice can prevail only when punishment is given with the aim of providing reformation and corrective measures towards the convicted persons. However, capital punishment serves no such purpose. It instigates violence and a feeling of vengeance in society. It is terrifying to watch a society celebrate the killing of a person in the name of justice. It is frightening to see people in our society rejoicing over police brutality or the encounter that took place in Hyderabad last year. The mentality of taking a life for a life and justifying it as a form of punishment is inhuman and barbaric. It portrays a blatant violation of human rights and should be abolished all over the world.

Back Pedal on Equality

Our Constitution protects and safeguards the right to equality of its citizens. The Article 14 of the Indian Constitution states that “The State shall not deny any person equality before the law or the equal protection of the laws within the territory of India”. There have been instances where capital punishment has been challenged in the court on the ground that it was violative of Article 14 and Article 19 of the Constitution. Multiple constitutional benches comprising of remarkable jurists have upheld the practice of capital punishment claiming it to be constitutionally valid and hence, serving the true purpose of justice. However, in Rajendra Prasad v. State of U.P. (1979 AIR 916). Justice Krishna Iyer held that capital punishment would not be justified unless it is proven that the criminal is harmful to society. He held that giving complete discretion to the judge to make a choice between the death penalty and life imprisonment would violate the rules of Article 14 which condemns arbitrariness.[6]

Life or No Life That is the Question

Article 21 of our Constitution bestows upon us the freedom of right to life. It states, “No person shall be deprived of his life or liberty except according to the procedure established by law”. It is ironic that on one hand the law clearly states that no one can be denied their right to life, and their freedom to live with liberty and dignity whereas, on the other hand, the honorable jurists profess the cruel and unusual practice of capital punishment. Propagating the feeling of vengeance covered with the flawless façade of justice has triggered an increase in violence and crime in society. It is because of the brutish and inhuman nature of capital punishment, more than a hundred countries have abolished the practice of the death penalty and many more are in the midst of removing the barbaric practice.

In India, however, the apex court overruled the Rajendra Prasad v. State of U.P. judgment in the case of Bachan Singh v. State of Punjab (1982 SCC (3) 24). In this landmark judgment, the Supreme Court held that the provisions of the death penalty under Section 302 of the Indian Penal Code as an alternative punishment was not violative of Article 21. The majority of the bench held that Article 21 recognizes the right of the state to deprive a person of his life or personal liberty in accordance with the fair, just and reasonable procedure established by law.  The modus operandi post-Bachan Singh era was ruled by the “rarest of rare” dictum. The five-judge bench in the Bachan Singh case reversed the earlier principle and held that life imprisonment is the rule and death penalty is an exception for people convicted for murder. The “rarest of the rare cases” dictum meant that the Court would have to take into consideration “exceptional reasons” stated under Section 354(3) of the Cr.P.C in awarding the death penalty.[7]

In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [(2009) 6 SCC 498], Justice Sinha observed that the Bachan Singh judgment makes no distinction on the roles and responsibilities of the appellate courts and therefore it was incumbent upon all the courts to ensure the ratio laid down in the Bachan Singh judgment. He added that the inverse pyramid of responsibility should be applicable in awarding the death penalty to the convicts.[8]

If killing someone is against the law, then killing someone in the name of law should also be in violation of the same law. The act of the death penalty is against humanity and should be abolished. As recommended by the 262^nd Law Commission Report, emphasizing the rarest of rare cases principle stated that the death penalty should only be applied against terror cases.[9] Life imprisonment should be the ultimate rule and the legislature should focus on reformation and rehabilitation of the convicts. Most of the crimes in our country take place due to a lack of financial stability and frustration that comes along with the said uncertainty. The government should lay emphasis on the overall reformation of the convict by modifying the prison reforms, vis-à-vis the condition of the prisons as well as the prisoners. According to a report published by the Amnesty International Organization, the number of homicides reported in abolitionist countries has dropped down drastically.[10] As a democratic nation, we should put a stop to the inhuman and brutal practice of the death penalty and strive towards protecting the democratic sanctity of our nation.

 

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[1] A Critical Analysis of the Death Penalty in India (https://bit.ly/2LIY39z)

[2] Death Sentence: A Critical Analysis (https://bit.ly/2TjLyW9)

[3] A Critical Analysis of the Death Penalty in India (https://bit.ly/2LIY39z)

[4] Death Penalty Info (https://bit.ly/3bEas9i)

[5] Crime Statistics as of 2019: Wikipedia (https://bit.ly/36bpfac)

[6] Death Sentence: A Critical Analysis (https://bit.ly/2TjLyW9)

[7] Death Sentence: A Critical Analysis (https://bit.ly/2TjLyW9)

[8] Death Penalty: A fatal Margin in Error (https://bit.ly/2ALAlHD)

[9] A Critical Analysis of the Death Penalty in India (https://bit.ly/2LIY39z)

[10] Prison Policy Statistics (https://bit.ly/2ZunELF)