All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that it is both right and just that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages others from doing wrong. The capital punishment also rests on the same proposition as other punishments. The capital punishment debate is the most generally relevant, keeping in mind the situation that has been brought about by today. Capital punishment is an integral part of the Indian criminal justice system. The increasing strength of the human rights movement in India, the existence of capital punishment is questioned as immoral. However this is an odd argument as keeping one person alive at the cost of the lives of numerous members or potential victims in the society is unbelievable and in fact, that is morally wrong.
MEANING OF CAPITAL PUNISHMENT Capital punishment, also called the death penalty, execution of an offender sentenced to death after conviction by a court of law for a criminal offence. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term death penalty is sometimes used interchangeably with capital punishment, though the imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment. The term “Capital Punishment” stands for the most severe form of punishment. It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity. While the definition and extent of such crimes vary from country to country, state to state, age to age, the implication of capital punishment has always been the death sentence. By common usage in jurisprudence, criminology and penology, the capital sentence means a sentence of death.
POLITICAL COMMITMENTS REGARDING CAPITAL PUNISHMENT GLOBALLY
Ø Several resolutions of the UN General Assembly (UNGA) have called for a moratorium on the use of the death penalty. In 2007, the UNGA called on states to “progressively restrict the use of the death penalty, reduce the number of offences for which it may be imposed” and “establish a moratorium on executions to abolish the death penalty.” In 2008, the GA reaffirmed this resolution, which was reinforced in subsequent resolutions in 2010, 2012, and 2014. Many of these resolutions noted that “a moratorium on the use of the death penalty contributes to respect for human dignity and to the enhancement and progressive development of human rights.” In 2014, 117 States had voted in favour of the most recent resolution. India has not voted in favour of these resolutions.
Ø In a 2013 resolution, the UN Human Rights Council acknowledged “the negative impact of a parent’s death sentence and his or her execution on his or her children,” and urged “States to provide those children with the protection and assistance they may require,” Human Rights Council resolution, 2014 noted that “States with different legal systems, traditions, cultures and religious backgrounds have abolished the death penalty or are applying a moratorium on its use” and deplored the fact that “the use of the death penalty leads to violations of the human rights of those facing the death penalty and of other affected persons.” The Human Rights Council urged states to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights.
Ø The law of extradition has been another tool for countries pushing for the abolition of the death penalty. Several abolitionist countries either require assurances that retentions-extraditing countries not impose the death penalty, or have included such a clause in bilateral extradition treaties.
CAPITAL PUNISHMENT: THE CURRENT STATUS Supreme Court on Validity of Capital Punishment in India Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law. This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life. While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court to has upheld the constitutional validity of capital punishment in “rarest of rare” cases. In Jagmohan Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar Pradesh (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.
JUDICIAL REVIEW OF EXERCISE OF MERCY POWERS
The Supreme Court in Shatrughan Chauhan case has recorded that the Home Ministry considers the following factors while deciding mercy petitions:
a) Personality of the accused (such as age, sex or mental deficiency) or circumstances of the case (such as provocation or similar justification);
b) Cases in which the appellate court expressed doubt as to the reliability of evidence but has nevertheless decided on conviction;
c) Cases where it is alleged that fresh evidence is obtainable mainly to see whether a fresh enquiry is justified;
d) Where the High Court on appeal reversed acquittal or an appeal enhanced the sentence;
e) Is there any difference of opinion in the Bench of High Court Judges necessitating reference to a larger Bench;
f) Consideration of evidence in fixation of responsibility in gang murder case;
g) Long delays in investigation and trial etc.
I cannot comment on if the death sentence is right or not. But I do believe that India gives enough chances for an accused to prove his innocence. Our judicial system does not take decisions on convicting or acquitting an accused hurriedly. So I feel awarding death sentence in rarest of rare cases isn’t too unfair.