Relevance: GS-2 :Indian Constitution - features, amendments, significant provisions and basic structure; Structure, organization and functioning of the the Judiciary; Ethics and Human Interface.

Key Phrases: Death Penalty, rarest of rare, trial courts, constitutionality, retributive justice, Bachan Singh Case, mitigation, public conscience.

Why in News?

• In what may be the first such instance in the country, a special court on Friday awarded the death penalty to as many as 38 convicts, and sentenced 11 others to life imprisonment until death, in a case related to the 2008 Ahmedabad serial blasts in which 56 persons were killed and over 200 left injured.

Key Points:

• The accused were members of the Indian Mujahideen, an outfit floated by the operatives of the banned militant organisation, the Students Islamic Movement of India (SIMI).
  • They were trained to carry out blasts in Ahmedabad as “retribution” for the 2002 riots in Gujarat.
• The prosecution sought capital punishment for all 49 convicts while defence lawyers urged the court to show leniency towards the convicts considering their social and economic background.
• In the over 7,000-page judgement, the trial court termed the case as “rarest of rare” and ordered that 38 convicts be hanged till death, while 11 others were awarded life imprisonment till death.
  • The court also awarded compensation of ₹1 lakh for the kin of those who died in the blasts; ₹50,000 to those who were seriously injured; and ₹25,000 to those who received minor injuries.

• The court perfunctorily read out the names of convicts almost like a school roll call — to “...tie a noose around the neck and hang the convict until he is dead....” — making it one of the most jarring cases in the history of independent India of the use of discretion to sentence citizens to death.
• According to a report by Project 39A at the National Law University, Delhi, a total of 488 prisoners in India (as of 2021) were on death row, which is an increase of nearly 21% from 2020.
  • It is also a reflection of the growing trend of trial courts to cursorily hand down the death sentence.
  • The trial courts in India have already sentenced more than 50 people to death in 2022 and often in violation of procedural and substantive laws.

Concerns:

• Capital punishment or death penalty have always been a content of contradiction not only in India but also in several advanced countries.
  • Debates on the death sentence often focus on its efficacy or constitutionality.
• But most importantly, the death sentence grants the state the monopoly of violence.
  • This monopoly is justified by claiming that such a step prevents crime or that it is a measure of long-due justice.
  • But at its core, death as a punishment for the ‘rarest of rare’ crimes is the highest measure of retributive justice in criminal law, based entirely on discretion.
• Fundamentally, ‘rarest of rare’ is a standard that allows a court of law to use public sentiment as a judicially reliable standard in handing out the death sentence.
  • India’s carceral criminal jurisprudence requires a court to calculate proportionality between crime and punishment.
  • But here is a sentence that goes beyond the confines of these calculations to deprive a person of their life — committing an act whose central value itself is immeasurable.
• Justice P.N. Bhagwati in his dissenting judgement, in Bachan Singh vs State of Punjab (1980) remarked that discretion is a poor substitute for principle, he held that any standard setting to explain when an institution can kill someone defeats the moral imperative to do no harm.
  • Thus, instead of lifting the moral atmosphere of society, the ‘rarest of rare’ standard gives an institution the power to bracket people as those who deserve to live imprisoned and those who deserve to be institutionally killed.
  • The impossibility of reform, the heinous nature of the crime, the shock to the public conscience, none of these things sufficiently justify the right of a fallible institution to take someone’s life.

• The harm of this loose standard was seen in this verdict under discussion.
  • After the verdict is delivered in any criminal trial, lawyers make what are called ‘mitigating arguments’ — essentially to contextualise the convict as an individual and not as the accused.
  • In this case, first, the court orally convicted ‘en masse’ several of the accused instead of declaring the charges proved against them separately.
  • ‘en masse’ as it was done in groups based on charges, and not for each accused; consequently, not indicating the individual roles of the accused.
  • It then directed the defence to commence sentencing arguments without access to the lengthy written judgment that contained specific findings of the court.
  • By depriving the defence of the verdict, the court crippled even the possibility of making a proper mitigation argument.
  • In a bizarre turn of events, the prosecution argued that the defendants should argue for mitigation before it would even disclose which convicts it intended to seek the death sentence.
  • The role attributed to each of the accused was different. By equating them for mitigation purposes (individual circumstances were unaccounted for and context and circumstances were considered to be the same) and handing down a mass death sentence, the court has only opened the door for greater misuse of a questionable power to end a life without any oversight.
• Mitigation turns usual court proceedings on their head. Unlike other trial stages where a court adjudicates between competing legal identities of an accused, the complainant, etc., in mitigation, the court hears evidence of a person’s humanity.
  • It allows discretionary sentencing to don a veneer of compassion when both outcomes — incarceration or death — are fundamentally inhuman.
  • Hearing mitigating circumstances requires - however temporarily — for the trappings of distance and formality to be stripped away so that a court may see a person instead of a convict.
• As the keeper of public conscience, the court’s decision to ignore all reasons to let someone live says more about societies collective bloodlust. It relies on a remarkably craven view of human potential.
• Critiques argues that calling it the death ‘penalty’ itself is problematic.
  • It is not a levy on delayed tax filings or a moment in a football match.
  • Such a permanent sentence requires us to assume that our institutions are infallible and user-proof.
  • To cast this as a simple ‘penalty’ ignores what it truly does - and did in this case; it negates the individual for the final time.

The International Landscape:

Since World War II, there has been a trend toward abolishing the death penalty.

• 54 countries retain the death penalty in active use, 108 countries have abolished capital punishment altogether, 7 have done so for all offences except under special circumstances, and 26 more have abolished it in practice because they have not used it for at least 10 years
• While only a minority of countries retain and use the death penalty, this list includes some of the most populous nations in the world, including India, China, Indonesia and the United States, making a majority of population in the world potentially subject to this punishment.
• Over time, the international community has adopted several instruments that ban the use of the death penalty, including the following:
  • The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.
  • Protocol No. 6 to the European Convention on Human Rights, concerning the abolition of the death penalty, and Protocol No. 13 to the European Convention on Human Rights, concerning the abolition of the death penalty in all circumstances.
  • The Protocol to the American Convention on Human Rights to Abolish the Death Penalty.

Stand of India:

• In India, the motive for the punishment is rested on two aspects;
  • The primary being that the lawbreaker should suffer for the pain and injury he/ she casted upon the victim and
  • Another motive is to discourage others from committing wrongs by sanctioning corrections.
• India opposed a UN resolution calling for a moratorium on the death penalty because it goes against the Indian statutory legislation as well as against each country’s sovereign right to establish its own legal system.

Way Forward:

• The Law Commission of India in its 262nd Report (August 2015) recommended that death penalty be abolished for all crimes other than terrorism related offences and waging war.
• At present, the death sentence convict has an option to appeal to the Supreme Court.
  • If the Supreme Court either refuses to hear the appeal or upholds the death sentence, then the convict or his relatives can submit a mercy petition to the President of India (Articles 72) or the Governor of the State (161).

Conclusion:

• The issue of the capital discipline is a debatable one some people find it unconstitutional while some are in favour of it. After being batted and studied from a prolonged time still no conclusion has been drawn out of it. On their part the Court expanded the range of “alternative options” to be exhausted before the death sentence was chosen.

Source: The Hindu  Hindustan Times

Mains Question:

Q. Capital punishment is not only a negation of the individual but also depicts collective moral decay. Discuss.