Ishita Ayala
Introduction
The death penalty is defined as the legal punishment of death for a criminal action. It has existed as a means of punishment for many millennia, and the arguments for retention and abolition have remained constant. The retentionists have argued that the death penalty serves as a deterrent. Certain crimes are grossly repugnant, and the perpetrator must be expunged from society. The victim’s loss is kept in mind, and therefore the notion of “an eye for an eye, a tooth for a tooth” is considered valid; however, the abolitionists argue that crimes do not occur in a vacuum and the perpetrator is a part of society. They argue that the death penalty is not completely accurate and that it is unwise to entrust such power with the state.
This article analyses the evolution of the position on the death penalty with reference to the Law Commission Reports. Secondly, it analyses the arbitrariness of the death penalty with respect to various landmark cases. Thirdly, it analyses the statistics of the death penalty and lastly, it offers recommendations to make the death penalty more humane.
Evolution of the official position on the Death Penalty
The 35th Law Commission Report (“Report”), released in 1967, advocated for retaining the death penalty. The death sentence was characterised as a representation of the society’s revulsion for a heinous crime rather than a symbol of vengeance. The argument for retaining the death sentence was also founded on the notion of the collective conscience. The report’s upper-caste bias is apparent when it asserts that the impoverished and members of oppressed castes perpetrate the majority of crimes since prison facilities are generally better than their dwellings.
The execution of the death penalty in India is carried out by hanging by the neck till death, described in Section 354(5) of the Code of Criminal Procedure 1973. Death by hanging leads to asphyxia or strangulation, resulting in a lingering and painful death for the convict. The lethal injection is also becoming accepted as the most humane method of executing the death penalty and this mode involves comparatively less pain and suffering for the convict, according to the 187th Report.
The 262nd Report advocated for a shift towards the abolition of the death penalty. It argued for the rehabilitation of offenders rather than retribution to satisfy public opinion. It advocated strengthened victim compensation schemes and investment in holistic police reforms. The Report also shed light on the “death row phenomenon” which is described as a limbo-like existence in which a prisoner lives in constant fear of being sentenced to death. The Report conceded that there was no penological basis for retaining the death penalty for crimes against the state such as “waging war” and “terrorism,” but advocated for the retention of the death penalty for the same while advocating a move to abolish the death penalty for other offences.
Examples of Arbitrariness in Sentencing
The Supreme Court (“SC”) ruled in Bachan Singh vs State of Punjab that the death penalty was not unreasonable or violated Articles 19 and 21 of the Indian Constitution. It laid down principles under which the death penalty was justifiable, where the death penalty would be awarded only in the “rarest of rare” cases when the possibility of life imprisonment was undoubtedly foreclosed. It described the procedure of reasonable sentencing when a court would consider the “aggravating and mitigating circumstances” of the offender.
The mitigating factors that were laid down in Bachan Singh were the age of the accused, the nature of the offence committed and the possibility of reform of the accused. The aggravating factors that were put forth were the nature of the offence and the prior criminal record of the accused.
In Dhananjoy Chatterjee v. State of West Bengal (“Dhananjoy”), a security guard was arrested for the murder and rape of Hetal Parekh in 1990 and was sentenced to death without an examination of the mitigating factors as laid down in Bachan Singh. Due to delays in the execution of the convict’s sentence, he spent fourteen years in prison and was executed in 2004. His conviction was based on circumstantial evidence that was never conclusively proven. The Rahul alias Raosaheb v. State of Maharashtra (“Rahul”) proves the irregularity of the application of the death penalty when contrasted with Dhananjoy. The victim in Dhananjoy’s case was a teenager, while the victim in Rahul’s case was a child, however, the offenders in both cases had no previous criminal record. Yet, one was condemned to death while the other’s sentence was commuted to life imprisonment. The irregularity is stark as the two judgements were within three days of each other.
The SC laid down the principles to determine the mitigating factors which have been mentioned in Manoj v. State of Madhya Pradesh.
- The state is required to present evidence that reveals the accused’s psychiatric and psychological evaluation at the proper stage, for crimes that bear the death penalty, as this will provide advice on the mitigating circumstances and demonstrate proximity (in terms of timeline) to the accused’s state of mind or mental illness, if any, at the time of the crime.
- Evidence from the defendant should be allowed to demonstrate the mitigating circumstances.
- Information regarding the accused’s jail conduct and behaviour, work done (if any), activities of the accused, and other related details should be requested in the form of a report from the relevant jail authorities (i.e., probation and welfare officer, superintendent of jail, etc.)
- A fresh report from the jail authorities, as opposed to the one submitted to the previous court, is recommended if the appeal is heard after a significant amount of time has passed since the trial court’s conviction or the High Court’s confirmation, as the case may be.
In 2022, trial courts imposed death sentences in 98.3% of death penalty cases without having any materials on the mitigating circumstances of the accused or any state-led evidence on the question of reform, indicating the lack of uniformity in the application of the death penalty.
The cases discussed above display a lack of uniformity in sentencing. It is essential to maintain uniformity in sentencing. The courts must establish clear guidelines and institute review mechanisms for the same.
Suffering of Death Penalty Prisoners
The seventh version of the Death Penalty in India: Annual Statistics Report, produced by Project 39-A (“Project”) at the National Law University in Delhi, provides a yearly report on the death penalty’s implementation in India in addition to relevant statutory and global developments. 539 people were sentenced to death, implying a 10.24 % increase in executions compared to 488 people who were executed in 2021.
The Deathworthy Report published by the Project recorded that roughly 62.2% of the prisoners interviewed were suffering from at least one mental illness. Mental illnesses such as Major Depressive Disorder, Persistent Depressive Disorder, Generalised Anxiety Disorder, and Substance Use Disorder were found to be the most prevalent among the prisoners at the time of the interview.
216 prisoners out of the 270 who spoke to the Project about their experience in police custody admitted to having suffered custodial violence. Amongst the states with 10 or more prisoners, Haryana has the highest proportion of prisoners (100%) who were tortured in police custody, followed by Gujarat (94.7%) and Kerala (91.7%).
The custodial violence inflicted upon the prisoners has led to severe physical repercussions and mental agony for the prisoners contravening the ideals the law seeks to achieve.
Recommendations
The author offers suggestions for making the incarceration of death row prisoners more humane, as they are often victims of their dire circumstances and deserve to be treated with basic dignity.
The author opines that prisoners on death row must be allowed to earn an income and engage in productive work, as it has been noted that there is a sense of ennui that soon leads to the deterioration of mental faculties owing to the continued isolation from their families, who often cease communication with the prisoners to prevent ostracism in the society. The majority of court proceedings occur in English or a bureaucratized version of the state’s vernacular, which is often incomprehensible to the accused. The author supports the necessity of translators while acknowledging that this is an expensive proposition that would require sustained efforts from the state governments. Chatbots such as Jugalbandi that aim to provide information in vernacular languages must be adopted by the judicial system to make justice more accessible.
Article 39-A of the Directive Principles of State Policy of the Constitution provides for free legal aid, but private lawyers are not mandated to provide pro bono services. 4,454 advocates had signed up to assist beneficiaries according to the 2022 Trust Law Index of Pro Bono published by the Thomas Reuters Foundation. The author argues for a government-sponsored scheme to incentivize lawyers by offering tax benefits. The author is cognizant of potential misuse of the same and argues for oversight mechanisms for smooth implementation of the same.
Media plays a crucial role in the dissemination of information. Lisette Donewald examines multiple movies such as The Green Mile and Just Mercy in her thesis, As Seen on Screen: American Ambivalence Shown through Death Penalty and Vigilante Films, to depict the cultural shifts and the attitudes of people towards the death penalty. State governments should encourage the production of films such as Mrigayaa (1976) and Purush (1984) that have aptly depicted the inhumanity of the death penalty.
Mrigayaa is based on Bhagabati Charan Panigrahi’s short story Shikaar. Ghinua is an exceptional archer who is befriended by a British administrator who promises him a reward if he captures a “big game”. Ghinua kills the notorious moneylender — the “biggest game” of all who abducted his wife and hopes for a reward but is condemned to death. The informer, who killed Sholpu, the revolutionary however is rewarded handsomely and this stark disparity highlights the arbitrary nature of British justice. Purush is the story of a young woman who is ostracized after her rape by an upper-caste man. Due to the lack of formal justice afforded to her, she kills her perpetrator. Although she is condemned to death, she walks to the gallows with quiet dignity.
Concluding Remarks
There were 883 executions in 20 countries in 2022, according to Amnesty International implying a 53% increase from 579 recorded in 2021. This is an alarming trend as the death penalty is inhumane in nature, disproportionately affects the poor and contrary to popular belief, it does not deter crime. It is used as a tool of control by the state to curb what it deems “undesirable” and cannot be reversed, in the light of new evidence. The author argues that India must endeavour to make the incarceration process for prisoners more humane and has provided suggestions for the same and hopes that the death penalty will soon be abolished.
The author is a third-year student at National Law University, Odisha.
NUALS Law Journal 