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Capital Punishment: Evolution, Delay and Need for Balance – By Guresha Bhamra
Capital punishment is one of the most ancient methods of punishment and historically, has been opted by almost every part of the world. India is not the only nation that chooses to remain a retentionist by having the death penalty in its statute book. But by also using it in the past with respect to the ‘rarest of rare doctrine’ as established in the case of Bachan Singh v. the State of Punjab. The most recent example is the infamous 2012 Delhi Gang Rape and Murder Case. Here the four death-row prisoners were executed after exhausting all their legal remedies on March 20, 2020.
For a long time, there have been various on-going debates on whether capital punishment violates basic human rights. Particularly the right to life and personal liberty of death-row convicts as enshrined under Article 21 of the Constitution of India (“Constitution”). This question of punishment poses a complex problem that requires a working compromise between the competing views based on reformative, deterrent, and retributive theories of punishment.
While working out on this compromise, it is also important to strike a balance between the rights of prisoners and the rights of a victim to seek justice. The safeguards for death-row prisoners are often used as delaying tactics to challenge their impending execution. Thus, the main question which arises is how to make such laws victim-centric in order to provide speedy justice while simultaneously maintaining the rights and personal dignity of death-row prisoners.
The present article seeks to explore the jurisprudence with regard to the evolution of capital punishment, remedies provided to prisoners. And how inordinate delay through such remedies obstructs the principles of natural justice and speedy trial.
Evolution of Statutory Provisions
The issue of capital punishment was raised for the first time in British India’s Legislative Assembly in 1931, where Gaya Prasad Singh. A Member from Bihar introduced a Bill to abolish capital punishment for offenses under the Indian Penal Code, 1860 (“IPC”). However, the introduction of this Bill was unsuccessful.
The most notable change in the laws related to capital punishment was observed in 1955 when the Parliament repealed Section 367(6) of the Code of Criminal Procedure (“CrPC”). It mandated the Courts to record reasons where the death penalty was an option. However, in 1973 new changes were made to Section 354(3) which mandated the judges to provide special reasons for the imposition of the death sentence. (Law Commission of India, 262th Report on Death Penalty (August 2015).
Initiative through Law Commission Reports
In 1967, the 35th Report of the Law Commission recommended the retention of capital punishment in India and stated that the idea of retribution should not be understood as an “eye for an eye”. But in its refined form as a public denunciation of crime. It also highlighted the category of offenders who are considered beyond or incapable of reformation.
Whereas in 2015, the Law Commission of India chaired by Justice A.P. Shah submitted its 262nd Report that the death penalty does not serve the penological goal of deterrence any more than life imprisonment. And recommended the abolition of the death penalty for all crimes other than terrorism-related offenses and waging war against the State. (Law Commission of India, 35th Report on Capital Punishment, Vol. II (September 1967).
Evolution of Judicial Principles
In 1973, the constitutionality of capital punishment was first challenged in the case of Jagmohan Singh v. State of Uttar Pradesh, where the Supreme Court upheld that it was indeed a permissible punishment.
Thereafter, the constitutional validity of capital punishment was upheld by the Supreme Court in Bachan Singh. It marked a significant shift in the judicial policy while limiting its application to the ‘rarest of rare cases’. The Court also provided guidelines for considering both aggravating and mitigating circumstances while determining the nature of the sentence.
Referring and recalling these guidelines as spelled out in Bachan Singh, the Supreme Court in Machhi Singh Vs. State of Punjab culled out a more precise set of guidelines to be applied to the facts of each individual case which involves the question of imposing the death sentence. While also explaining the circumstances which constitute the ‘rarest of rare doctrine’.
Constitutional Safeguards
The primary reason for providing multiple safeguards at various stages of procedure is to minimize the scope of error while implementing capital punishment. Because after the execution, there is no going back from the punishment. In order to ensure a fair and reasonable procedure as highlighted in the Maneka Gandhi judgment. There are various legal remedies that can be opted by death-row prisoners whose review petitions have been rejected by the Supreme Court.
The concept of the curative petition was structured in the case of Rupa Ashok Hurra v. Ashok Hurra, where the Supreme Court clarified its curative power which is derived from Article 142 of the Constitution and how the same is guaranteed under Article 137. However, there is no such time limit for filing a curative petition, which often leads to its misuse by individuals who deliberately file the same to cause inordinate delay in the procedure.
After a death-row prisoner has exhausted all the available remedies, a mercy petition may be filed as a last resort and presented to the President of India under Article 72. The Supreme Court also held in Dhananjoy Chatterjee Dhana v. State of West Bengal, that the power under Articles 72 and can be exercised by the Central and State Governments and not by the President or Governor on their own. Such a petition can be filed within 7 days after the date on which the Superintendent of jail informs death-row prisoners about the dismissal of the appeal by the Supreme Court.
Inordinate Delay – Cause of Concern
Although the guidelines highlighted by the Supreme Court in Shatrughan Chauhan v. Union of India and Epuru Sudhakar v. Govt. of AP strive to protect the right to life and personal liberty of death-row prisoners as guaranteed under Article 21. The same safeguards and guidelines at times can cause an unreasonable delay in the execution. That is a cause of concern since the rights of the victim are compromised.
The most recent example can be observed in the 2012 Delhi Gang Rape and Murder Case. Where the four convicts continued to file curative petitions at different intervals of time after the issuance of death warrants. Such steps can be interpreted to cause an intentional delay in the execution. The purpose of forming such safeguards was to provide basic human rights to the death-row prisoners, but the lack of provisions dealing with the time limit can violate the victim’s right to a speedy trial. And justice and can further lead to wastage of state resources.
Need for Balance
It can be observed that there is a dire need to strike a balance between the rights of prisoners and victims to seek speedy justice. Keeping this goal in mind, the Central Government has filed an application for modification of guidelines laid down in Shatrughan Chauhan. (Shatrughan Chauhan v. Union of India, Misc. App. No. 265/2020 in W.P. (Crl.) No. 55/2013)
The main purpose of this application is to seek additional victim and society-centric guidelines. And clarity regarding the time limit within which a death-row prisoner can file a curative petition. This will lead to a swift execution but will also help the prisoners to opt for such safeguards in a time-bound manner.
The application further seeks to modify the time period from 14 days to 7 days for communication of mercy petition rejection to the date of execution. This revolves around the principles of morality than legality since a death-row prisoner must be provided some time to mentally prepare for the impending execution. And to meet his/her family members, as well as to make a will.
Lastly, the application seeks that execution of a prisoner who has exhausted legal remedies should not be delayed merely because his co-prisoners have not opted for such remedies. However, this issue is highly debatable after considering the case of Harbans Singh v. State of UP, where three people were awarded death sentence out of which, death penalty of one of the convicts was commuted to a life sentence. Which was later used by the co-convict as an argument to get his sentence commuted. However, the third co-convict who did not file a review petition had already been hanged.
Currently, the application is pending in the Supreme Court. And endeavors to achieve an optimum balance as justice to the accused or convict is as important as justice to the victim.
This Article is written by Advocate Guresha Barma. Alumni at University School of Law and Legal Studies at Guru Gobind Singh Indraprastha University, New Delhi.
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