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Sansad TV: Perspective- Death Penalty Debate

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Introduction:

The Supreme Court has ruled that all courts must consider pre- and post-crime conduct of a convict to ascertain mitigating grounds to avoid imposition of the capital punishment. The Apex Court’s verdict puts onus on the judiciary to look for a convict’s ‘reformative’ qualities. This further limits the possibility of imposition of death penalty, which in the 1980s got restricted to only rarest of rare cases. The Law Commission of India in 2015 had recommended that the death penalty be abolished for all crimes other than terrorism-related offences and waging war against the country. Over the past years, concerns have been raised that the death penalty has been awarded mainly considering only the crime factor while overlooking the accused.

Rationale:

  • The punishment is not arbitrary because, it comes out of a judicial process. To call it arbitrary, one has to necessarily prove the process as flawed.
  • It is being implemented in the “rarest of the rare” cases and the fact is during the last 13 years, only four people have been executed.
  • The hanging of Ajmal Kasab and Yakub Memon strongly affirms India’s commitment to the protection of life.
  • People criticise it on arbitrariness, irreversibility and human rights and these are not valid arguments.
  • Its constitutionality is upheld, even in liberal democracies like U.S. It is not reflection of uncivilised society.
  • India’s neighbourhood is not peaceful, unlike Scandinavia. It is not in a group of countries, like European Union.
  • India has got troubled borders. Several forces are trying to destabilise the very idea of our Nation from across the Border.
  • The sacredness of life can only be seen to be protected, if those who take it away are proportionately punished.

Efficiency of death penalty

  • A study by the Centre of Death Penalty – at the National Law University Delhi (NLUD) — in 2015 analyzed data of 15 years to conclude that less than 5 per cent death penalties awarded by trial courts were confirmed by the time the cases passed the tests in high courts and the Supreme Court.
  • Another NLU Delhi study found that 162 death sentences were awarded across the country in 2018. Only 23 were confirmed by the high courts.
  • The Supreme Court heard 12 death penalty cases in 2018 but confirmed death penalty in only one case – of Nirbhaya gangrape and murder.
  • The Justice JS Verma committee, appointed after the Nirbhaya case, too had examined the efficiency of death penalty for rape. In its report, Justice Verma did not prescribe death penalty for rape for the lack of correlation in preventing the crime of rape or gangrape.

Death Penalty is not the panacea

  • It unfairly targets poor and marginalised, that means, those without money & power.
  • Executions occurred in around five cases for every 1 lakh murders and it looks quite arbitrary. It depends on judges personal beliefs.
  • India’s murder rate has declined continuously since 1991 and at present the lowest, except for 1963.
  • Punishment should not imitate crime.
  • As per the recent Death Penalty India Report by the National Law University, Delhi, the structural flaws in our criminal procedure and criminal justice system are most pronounced in death penalty cases.
  • Most of the civilised world abolished it. Death penalty has not deterred terrorism, murder or even theft.
  • From 200-2015, Supreme Court imposed 60 death sentences and subsequently admitted that it had erred in 15 of them. So, it clearly admitted that it has arbitrarily imposed the most extreme punishment.
  • The Police is not known for its probity or efficiency in our Country.
  • Delays in the Criminal Justice System disproportionately affects those, who suffer the tyranny of the uncertainty of their life.

Measures needed

  • Law Commission in its 262nd report submitted recently recommended the abolition of capital punishment for all crimes in India, except the crime of waging war against the nation or for terrorism-related offences.
  • It cited several factors to justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven deterring effect on criminals.

Way forward

  • Addressing the deeply entrenched patriarchal attitudes of the police, lawyer and other judicial officers that continues to contribute to low reporting and conviction rates.
  • Bridging the gap between GBV laws and its correlated areas such as legal rights to property, land, inheritance, employment and income that allows a woman to walk out of an abusive relationship and specific emphasis on political and economic participation of women.
  • Systematic intervention for multisectoral linkages between Health sector (medical and psychosocial support), Social Welfare sector (Shelters, counselling and economic support/skill), Legal (legal aid)
  • Not just engage with “men and boys” as change agents but also acknowledge the expectations linked to masculinity, their position as victim of violence especially for young boys to address the perpetuation of cycle of GBV.
  • Recognize sexual and reproductive health and rights by promotion and protection of women’s right to have control and decide freely over matters related to their sexuality, including sexual and reproductive health, family-planning choices and access to comprehensive sexuality education.
  • Reclaiming the spaces for women to increase their presence in visibility through political and economic participation and diversifying their engagement in nontraditional sectors.
  • Use of technology and emerging concepts such as Smart City in urban policy for ensuring safer and gender friendly infrastructures and spaces that prevents GBV.