UPSC Daily Editorial Analysis | 29 April 2022

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What the article is about?

  • Talks about the need to revisit the death penalty jurisprudence.

Syllabus: GS-II Indian Constitution, Fundamental Rights, International standards

Death Penalty:

  • According to Section 354(3) in the Code of Criminal Procedure, while imposing capital punishment, the judge should specify “the special reasons” for doing so.
  • It was in Bachan Singh vs State of Punjab (1980) that the Constitution Bench suggested a humane and reformist framework in the matter.
    • It said that the gallows could be resorted to only in the rarest of rare cases, that too when “the alternate option is unquestionably foreclosed”.
    • Thus, Bachan Singh requires the trial courts not only to examine the gravity of the offence but also the condition and the ‘reformability’ of the accused.
    • The Court, in Bachan Singh, refused to declare the death penalty as unconstitutional. 

Concerns:

  • In India, as elsewhere, the poor, rather than the rich, are sent to the gallows.
    • The numbers of the uneducated and the illiterate sentenced to death outweigh those who are educated and literate.
    • In the Indian scenario, the legal assistance received by the poor facing serious charges is far from satisfactory. Lack of proper defence results in conviction.
  • Also, the Bachan Singh principle was followed more in its breach than in compliance even by the Supreme Court.
    • In Ravji vs State of Rajasthan (1995), the Supreme Court said that it is the nature of the crime and not the criminal which is germane for deciding the punishment.
    • In Machhi Singh vs State of Punjab (1983), the Court indicated that the inadequacy of other punishments could justify the death penalty
  • There could be inherent inequality and arbitrariness in applying the principles because of multiple factors such as failure of the judges, incapacity or backwardness of the parties, the inadequacy of defence, and deficits in the reports of experts, disparity in the practical application of the doctrine, etc. 

Way Ahead:

  • Therefore, the true way ahead is not merely to fill up the blanks in Bachan Singh by laying down concrete propositions for assessment of mitigating factors, determination of standard of proof, the burden of proof etc.
  • The Court may have to revisit Bachan Singh itself in so far as it refused to declare the death penalty as violative of the right to life envisaged under Article 21 of the Constitution.
  • Across the world, 108 nations have abolished the death penalty in law and 144 countries have done so in law or practice, according to the Amnesty Report of 2021. 



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