Humanising the Penal System; Doing Away with death penalty
Recognising the rights of others, respecting differences and opinions is a basic value every civilised human in the present era is expected to have. Human beings continue to evolve and become more civilised with the passage of time. Racism, untouchability, slavery, forced labour, detestable treatment of prisoners and other undesirable practices are now frowned upon by the society and the vast domain of human rights has been gaining popularity from the 20th century. But to truly qualify as a ‘civilised society’, it is crucial to do away with the inhuman, vengeful form of punishment i.e., the death sentence.
No society is free from crimes i.e. crimes are inevitable. But they can be avoided by imposing negative sanctions. The sanctions imposed on a person for his/her willful misconduct have changed with dynamics of societal values over a long period of history. The punishments have transformed from retributive to reformative as more civilised the people became. Even within the last few years, there have been many changes in the area of chastising all over the world. As many as 106 countries have abolished death penalty. and treatment of prisoners with dignity has become a concern. What w as once accepted as a form of penalising is no longer embraced. An example for this can be whipping. It had to be removed from the statuteas it was considered barbaric in nature. Isn’t sentencing a person to death also gruesome in nature? Sanctions must be reformative in nature for a society to progress. How can one be given the opportunity to reform if the person ceases to exist? It can be strongly argued that humans now are civilised enough to accept that it is necessary to abolish death sentences in India without any exception.
There have been sporadic attempts made in India since 1931 to abolish death penalty.In the year 2015, the Shah Commission report recommended for partial abolition of death penalty except for the terrorists. It also went on to state that the rarest of rare doctrine laid down in Bachanv. State of Punjab was uncertain and cannot be implemented consistently since awarding death penalty depended upon the subjective considerations of the judges.But these recommendations were never implemented owing to various reasons.
Death sentence is recognised as a form of punishment under the Indian Penal Code (hereinafter IPC), The Commission of Sati (prevention) Act,Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and other few statutes. Around 755convicts were hanged to death in India since independence, but it has become impossible to obtain the accurate figures due to the improper keeping of records.
The most established point of view opposing the capital punishment is that it is irreversible. Sometimes the court may arrive at a faulty judgement due to various reasons. If an innocent is held guilty and hanged, there is nothing that can bring his/her life back. The court has also stated that 15 out of 60 convicts were wrongly imposed with death sentence between the year 2000 and 2015 but fortunately, they were not executed and thus injustice was avoided. What happens when someone is hanged for a crime that he/she did not commit? At times, a witness may tell a lie in the court with the intent of bringing death sentence upon the accused to satisfy his/her personal revenge and may even succeed in achieving it. If the truth is revealed in future, one of the solutions for such a situation given in the IPC is to punish the perjurer also with death.The subsequent act of hanging the perjurer is, in no way, going to bring justice to the deceased innocent.
There whereas many as 1810 death sentences issued in India,3 but only 4were executed, between the year 2000 and 2014.If this is the case, there is no intelligible differentia between the very few who were executed and the other majority who await their execution for tremendously a long time, for the similar offences committed. Why should the minority suffer while the others who are also given the same sentence escape it?
The popularity of cases also influences the execution of death sentence. Certain offences relating to sexual violence usually have the ability to invoke widespread public reaction. The public by staging their voices through various modes, demand for speedy justice through the death of the accused if the offence is considered grave. A perfect example for this can be illustrated from the protest made for Nirbhaya in the year 2012.But in reality, there are many commissions of crime that actually are more gruesome and ghastly in nature. Only a few of them attract the attention of the public. There were 4,05,861 rape cases reported between the year 2018 and 2019, but only a few cases such as the Hathras case and the Hyderabad gang rape case gained the attention of the public. Again, the majority of the convicts of the unfamiliar cases face death row for a long time and sometimes die naturally. If it is impossible to administer the impugned punishment uniformly, then this punishment is wholly arbitrary.
The socio-economic conditions play an important role in a convicts’ life. 76% of the convicts facing death row (between the year 2001-2015) belonged to backward castes and were from religious minorities and74.1% of them were economically vulnerable. Most of prisoners facing death row also do not get formal education. They are victim of the situations they face. Their torture does not end there. 80% of them (between the year 2001-2015) faced very inhuman, barbaric custodial torture some of which also included “unspeakable things”.This is not the right way to treat them or reform them. No human deserves such a cruel treatment.
It is of utmost importance to note that abolishing death penalty will in no way justify any cruel or criminal act. Even though the victim, to make himself/herself feel that the justice has been served to him/her, may want the death of the perpetrator, it is important to prioritise the value of a life. All that is aimed at is giving reformative sanctions to the transgressors. Everyone deserves a chance to improve and an opportunity to make good for their wrongful acts .The basic right to live with dignity should never be taken away from any person. This is the right time for retentionist India to transform itself into an abolitionist country.
Death penalty in 2019: Facts and figures, Amnesty international, https://www.amnesty.org/en/latest/news/2020/04/death-penalty-in-2019-facts-and-figures/
Central Act, 1955, No. 44, Acts of Parliament, 1955 (India).
Getting the hang of death penalty, The Hindu, https://www.thehindu.com/news/cities/Delhi/getting-the-hang-of-death-penalty/article31086083.
Bachan Singh v. State of Punjab, AIR 1980 SC 898 (India).
Law Commission of India, The Death Penalty, Chapter 1, Report No. 262, 2015.
 Pen. Code, §53 (1).
The Commission of Sati (Prevention) Act, 1987, § 4 (1), No. 3, Acts of Parliament, 1987 (India).
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, § 3, No. 33, Acts of Parliament, 1989 (India).
‘Rarest of rare’ — history of death penalty in India and crimes that call for hanging, The Print, https://theprint.in/theprint-essential/rarest-of-rare-history-of-death-penalty-in-india-and-crimes-that-call-for-hanging/383658/
Is it time to abolish the death penalty?The Hindu, https://www.thehindu.com/opinion/op-ed/is-it-time-to-abolish-the-death-penalty/article25735508.ece
Pen. Code, §194.
Death Sentences in India Usually End in Question Marks, Study Finds, The New York Times, https://www.nytimes.com/2016/05/07/world/asia/india-death-sentences-executions.html Average 87 Rape Cases Daily, Over 7% Rise in Crimes Against Women in 2019: NCRB Data, The Wire, https://thewire.in/women/average-87-rape-cases-daily-over-7-rise-in-crimes-against-women-in-2019-ncrb-data
Death Penalty India Report, Project 39A, https://www.project39a.com/dpir
Project 39A, Death Penalty India Report Summary, pg. 31, 2016.
~ Ilakiya S D
2nd Year, B.com LL.B