No fundamental right is without riders. Free speech, property and faith, all these are rights subject to reasonable restrictions. Yes, the right to life is infinitely more fundamental than these, but what does it exactly mean? Does it make the right to life sacrosanct or, does it only mean that the right to take it away has to be fool proof and not amenable to subjective readings.
There has been an endless debate in India about the moral, ethical, and legal issues relating to the death penalty. Capital Punishment has always occupied a very contentious place in Indian criminal jurisprudence because of its retributive and irrevocable nature. As of 2019, 104 countries have completely done away with the death penalty whereas 29 others have abolished it de-facto (meaning no execution of any person has been carried out in the last 10 years). India is not in this list. We follow the Doctrine of Rarest of Rare for sentencing someone to capital punishment, i.e. the death penalty must be restricted only to those crimes where an alternative punishment was excluded, this was established by the Supreme Court in the landmark judgement of Bacchan vs. State of Punjab. The very basic criteria to impose death penalty was underlined by the Apex Court in Machhi Singh vs. State of Punjab where the Court said that:
"Death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability of otherwise of retaining death penalty."
In fact, it is the Supreme Court which has in fact shaped India’s criteria for awarding the death penalty, and not the Parliament. There are numerous cases, and numerous precedents which have to be taken into consideration before the Trial Court sentences someone to death.
For example, straying away from the Machhi Singh judgement, in 2018 in the case of MA Antony vs. State of Kerala, a three judge bench of the Supreme Court said that the court must not be an oracle of the public opinion and recognize limits to judicial power. They must ensure that reference to public opinion and what is perceived by the judges to be the collective conscience of the society must be avoided while sentencing a convict guilty of a brutal crime.
Herein lies a problem rightfully pointed out by several legal scholars: a lack of agreement on what constitutes “collective conscience of society” to determine the rarest of rare crime that invites imposition of death sentence is what continues to mark death penalty jurisprudence in India.
However, despite this dichotomy, our judiciary has awarded the death penalty to at least 752 people since independence. Furthermore, this is just the data that is available on record, Governments and central prisons have been reluctant to share such information; so the number is only going to be higher.
But, there is a very essential point that needs to be made here.
Despite the differing interpretations of the said doctrine, our judicial system is not a Rohit Shetty film where the only thing that happens in a Court is the judge screaming order-order.
There is an entire chain of events that transpires before someone is hanged.
The Trial court awards the death penalty, the High Court has to confirm it.
Then, the convict may file an appeal before the Supreme Court.
If that is rejected, a review petition can be filed; if that is rejected too, a convict can file a curative petition; and only and only if this is upheld will the death penalty be confirmed.
This entire loop is long, and tedious, spanning across several years, but, is fundamentally essential to justice in a democratic regime like ours, where the rule of law is reasonably expected to operate; this gives the accused a very fair chance to prove their innocence.
Yakub Memon got 21 years to prove his innocence, and he failed.
In fact, as per report released by NLU, Delhi, in the past 15 years, trial courts sentenced 1,810 people to death, out of the Supreme Court had upheld the death sentence of only 73 of them.
This highlights that the death penalty is not awarded on a whim, or just as a tool for political revenge.
Opposers of the death penalty talk about the Article 21, the fundamental right to life, as guaranteed by our Constitution, but they conveniently ignore the second line of the same article, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The death penalty cannot be wayward and arbitrary. We need a specific set of crimes which are defined as rarest of rare and not leave it to the imagination of all-to-human judges to decide this. This is what the debate on capital punishment needs to focus on, not whether it should be abolished or not.
People who are defending the Right to Life of rapists and murderers need to remind themselves that if Capital Punishment is state sponsored murder of people, then any lesser punishment is a state sponsored murder of Justice.
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