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Capital Punishment: Is India ready to abolish it yet?

Author:

Shreya Rawat, LLM student, HNB University, Uttarakhand

On 20th March 2020, the convicts of Nirbhaya rape case[1] were hanged. Amnesty International India called the hanging a ‘dark stain’ on India’s human rights record.[2] The United Nations and the International court of justice also condemned it. This topic has been a hot topic of debate in the recent years. The hanging of the Nirbhaya convicts has once again given fire to it.


The ‘Human Rights’ Debate

The people against death penalty in India put up that it is a violation of basic human rights of convicts. But here’s a question to ask: Are human rights only for convicts? What about the human rights of a victim? Why to sympathize only with the bad one? Why don’t our hearts go out for the victim?


Is Life Imprisonment Enough?

Nowadays, there are demands to make life imprisonment the maximum punishment. But then what remains the difference between the simple killing and savage killing?


Nirbhaya’s rapists inserted an iron rod into her ripping her intestines apart. They later threw her naked on the road from the moving bus. Two weeks later she died. How can we forget the ‘Nithari case’[3]? The horrifying case where a man used to rape people, especially children and chop off their bodies and cook and eat its parts.(He has been awarded death sentence for 10 cases till now and next up we are yet to see his execution). Or someone like Ajmal Kasab[4] or Yakub Memon[5], the terrorists who killed hundreds of unarmed innocents and policemen.


For such a heinous crime you think only life imprisonment would suffice? If a man who murders another with a single bullet and a man who kills someone so brutally that you cannot even hear about it without being disgusted get the same punishment, how fair would it be?


In Bachan Singh v. State of Punjab[6] it was held by the Apex Court that Capital punishment can be awarded in rarest of rare case. Although the definition of rare changes every now and then, this judgment still holds good.


Not A One-Sided Thing

Article 21[7] states that no person shall be deprived of his life but also clarifies that it can be done after following due procedure of law. A judgment doesn’t come in a jiffy. There are many stages a trial goes through and a criminal case can go for Appeal, Revision, Review petition, Curative petition and in a death penalty sentence Mercy plea is also available from the president.[8] Moreover, a criminal case has to be proved beyond any reasonable doubt to punish the accused. Death sentence is always the last resort.


The Code of Criminal Procedure provides for legal aid to the accused at state cost in cases where it appears to the court that the accused has not sufficient means to engage a pleader.[9] This is an aspect of Indian criminal justice system to ensure natural justice through fair trial. Constitution of India provides that no person shall be denied the right to counsel and to be legal practitioner of his choice. Kasab was hanged to death after 4 years of trial (2008-2012). The rapists of Nirbhaya were under trial for 6 years. They tried till the last breath to get away with death punishment and exhausted every legal way possible and then only they were punished.


Changed Times Need Harsher Punishment

It cannot be denied that the great personalities Mahatma Gandhi and Dr. B.R. Ambedkar were against death penalty but we have to accept that the social condition of India was different then. There were seldom brutal killings like these. Today, we hear of ways of ferocious killings we could not even think of. We can see that crime rate is growing every day. A graph being shown here for an example: [10]

Deterrence

In 2010, the then chairman of National Human Rights Commission gave his opinion favoring continuance of death penalty saying “it has a deterrent effect in a country where various types of crime on the rate”. [11]


We in India follow deterrent theory of punishment. Reformative theory of punishment is also used in jails, especially for juveniles. Among all these, Capital punishment is considered to be the ‘an eye for an eye’ i.e. retributive measure. But the thing is that it should be seen as a deterrent rather than a retributive measure. More severe the crime, bigger the punishment. For a ruthless crime, the punishment should be harsher. It is not being done just for the sake of punishing but creating fear in the heart of such unlawful elements in the society.


Economic Reason

As per the data available with the National Crime Records Bureau (2014-2015), the average annual expenditure on a prison inmate was Rs. 29538. NCRB also shows that the Indian prisons are overcrowded and have an occupancy rate of close to 120%. With more inmates being added to jails every year, the expenditure is also increasing.[12] And who is paying for that? Obviously, the taxpayers. India is a welfare state. Expenditure on under trial prisoners or prisoners serving sentences is totally justified. But why should the public be paying for wicked rapists and sadistic murderers?


Below is a chart showing how expenditure is going up for prisoners: [13]

Conclusion

It is argued that we should strive for their reformation. But who are we expecting to get reformed? The man eaters? Or the people whose minds are filled with wrong notions of religion and do not once hesitate to kill innocent people on the name of it? It is reported that Kasab had no regrets or remorse. His only remorse was not being a fidayeen. Even the culprits of Nirbhaya did not have any remorse as could be found in the documentary ‘India’s Daughter’. The counselor of the juvenile convict verified the same thing.[14]


Civilization is for people who are civilized, not the barbarous. The time has still not come when India can give up on death penalty. It may not stop some monsters to commit crime but it is very important to set deterrents which can make criminals think at least a thousand times before committing a crime. Death penalty is surely a better deterrent than life imprisonment for such barbaric criminal minds.


References

[1] Mukesh and Anr v. State for NCT of Delhi (2017) [2] The Hindu, https://www.thehindu.com/news/national/hanging-of-nirbhaya-convicts-a-dark-stain-on-indias-human-rights-record-amnesty/article31116343.ece (Visited on May 13,2020) [3] Surendra Koli v.State of UP( 2011) 4 SCC 80 [4] Mohd. Ajmal Amir Kasab v.State of Maharashtra (2012) 9 SCC 1 [5] Yakub Memon v. State of Maharashtra (2013) 13 SCC 1 [6] Bachan Singh v. State of Punjab (1980) 2 SCC 684 [7] The Constitution of India,1950 [8] Article 72, The Constitution of India,1950 [9] Section 304,The Code of Criminal Procedure,1973 (2 of 1974) [10] Wikipedia [11] The Hindu, https://www.thehindu.com/news/national/Death-penalty-has-deterrent-effect-NHRC-chairperson/article16115265.ece (Visited on May 19,2020) [12] Newslaundary , https://www.newslaundry.com/2016/06/22/how-much-is-spent-on-a-prisoner-in-india ,(Visited on May 19,2020) [13] FACTLY, https://factly.in/expenditure-per-prison-inmate-increased-50-5-years ,(Visited on May 20,2020) [14] The Quint, https://www.thequint.com/news/india/nirbhaya-case-three-years-on-juvenile-rapist-shows-no-remorse ,(Visited on May 20,2020)

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