An abhorrent and unjust device (Death Penalty in India)

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 An abhorrent and unjust device (Death Penalty in India)

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• Deep penological confusion : Indian criminal justice system suffers from confusion over the death penalty, as seen in the final outcome of cases as the Supreme Court's level. Problems are -

1. death penalty in India is arbitrary,
2. its application is conflicted by multiple beliefs,
3. need for precision in criminal law is replaced by cries of mobs demanding justice. (Penology - the study of the punishment of crime and of prison management)

• Two recent cases :

1. Digamber Vaishnav v. State of Chhattisgarh - Two got death in 2014, on charges of murdering five women. The SC overturned the verdict as the (9 year) child witness's testimony used was faulty. The child wasn't present on the scene of the crime.
2. Ankush Maruti Shinde v. State of Maharashtra - Six people sentenced to death in 2006 by trial court (on rape and murder charges). Bombay HC confirmed it in 2007, commuting death of 3 into life sentences. The SC in 2009 studied all appeals RAISING the life imprisonment to death! Why? An earlier order of 1996 was relied upon - Ravji v. State of Rajasthan (it is only the nature and gravity of crime that decides death penalty). Then in May 2009, the Ravji order was recalled by SC stating that the criminal's antecedents (economic and social) must be seen. In October 2018, death order of these six was recalled.

• SC's observations in the second case : The SC said that these six had lived in fear of death for a decade, for no fault of theirs. So the State (i.e. the Prosecution) is responsible, and a compensation of Rs.5 lakhs was ordered for each. What about the mistake of the SC itself?
• A third case : In the Khushwinder Singh v. State of Punjab case, the SC has confirmed death for the man convicted of killing six. And then, the SC gave a seal of approval to death penalty also - "the murders were diabolical and dastardly, and the case is a "rarest of rare variety“ where nothing except death penalty will suit".
• Rarest of Rare doctrine : This evolved from the Bachan Singh v. State of Punjab (1980) where the Section 302 of the IPC (that grants death penalty for murder) was termed constitutionally valid, but drew a boundary called "rarest of the rare cases".
• Further precautions : The SC has warned later that capital punishment must be awarded only when it is proven (by State - Prosecution) that a convict cannot be reformed and rehabilitated. Now, in the 2019 Khushwinder case, no such thing is done. The SC says there are no mitigating circumstances. 
• What is clear now : The capital punishment is not serving any larger purpose, in deterring various kinds of crimes. The reverse may actually be true! The US states with capital punishment have higher rates of homicide, than those who do not. In India, the weakest sections suffer the biggest brunt of this penalty. The DPIR (Death Penalty India Report) 2016 indicates thus.

1. 74% of prisoners on death row were economically weak
2. 63% were sole breadwinners in families
3. 60% had not completed their secondary school education
4. 23% never attended school.

• How can such people engage with the criminal justice system, and defend themselves?
• Most horrifying : 76% of those sentenced to death belong to minorities and backward classes. All 12 female prisoners are included!
• SC to the rescue : Delays by President in deciding on mercy petitions is a cause (for SC) for commutation. Review petitions are heard in open courts. But the very continuation of death penalty is iniquitous! (Reference : the Ankush Maruti Shinde case)
• Constitutional promise : It promises to every person equality before law. Capital punishment legalises violence by State, making justice similar to vengeance. 
• Summary : The systemic and structural problems in Indian criminal justice system indicate that the death penalty as part of Section 302 of the IPC has outlived its utility, and must be scrapped.

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