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Is capital punishment murder of the murderer?

“Leaves have their time to fall, and flowers to wither at the North-wind’s breath, and stars to set – but all thou hast all seasons for thine own, O death!”- Hemans

Death is the only truth of life. It is inevitable. Those who do not believe in God, do believe in death. However, most of the wise men believe that the unrevealed hour of death for each one of us is fixed by God, but what when the hour of death is fixed by Judge?

Then there is a famous proverb, “To err is human, to forgive divine.” People commit sins and make mistakes, God forgives them but the same may not be true with the legal system. From the time immemorial painful chastisements have been prescribed by humans in power against humans in the garb of legal punishment through brutal methods for violating the prevalent laws. Some of the brutal methods of execution included :-

Death by a thousand cut: It was in use roughly from the year 900 A.D; until it was banned in 1905. During this procedure the convict was tied to a wooden frame, then a sharp knife was used to slice the flesh gradually thousand times.

Sawing: During this process, the convict would be hung upside-down from a tree or gallows and a large saw would then be used to slice his body in half, starting with the crotch to the chest and head.

Crucifixion: In this method convict’s head and feet were bound or nailed to a wooden cross-like structure. It was prescribed widely during the reign of Alexander the Great, but still occasionally used in some countries.

Boiling: The accused was stripped naked and then thrown into a cauldron full of boiling liquid.

The Catherine Wheel: The accused was tied to a large cartwheel, with his arms and legs stretched out. The wheel was then slowly revolved while the executioner smashed his limbs with an iron hammer breaking the bones in many pieces.

Impalement: Impalement on a pole was one of the most gruesome method of execution. The accused was forced to sit on a thick, sharpened wooden pole. The pole was then slowly raised upright and the accused was left to gradually slide further down the pole only by his or her own weight. The pole then going through convict’s chest, shoulder, neck, emerged out from his mouth. Impalement was more prevalent in 15th Century Romania during the reign of Vlad Dracula. He executed over 80,000 people this way and quite often enjoyed meals while watching them die.

Flaying : The executioner gradually peeled off all the skin using sharp knife.

Rat Torture: In this method, large pottery bowl filled with a couple of rats was placed open side down on the naked body of the prisoner. Large amount of red-hot charcoal was then piled on the top of the bowl, gradually heating the air inside. Rats terrified of the heat, then slowly gnawed their way outside through the victim’s flesh.

Brazen Bull: The bull made of bronze used to be hollow. It had a door inside the bull. The accused was pushed inside the bull and a fire was set under the statue. The fire heated the metal until the criminal inside died from severe burns. The scorched bones were then used for making bracelets.

Boats: The accused was placed in wooden boat or tub and then forced to ingest large amount of milk and honey until developing a severe diarrhoea. Further the mixture of milk and honey was rubbed on the exposed parts of his body, attracting flies and other insects. He was then left afloat on a still pond water.

Many of the aforementioned brutal punishment methods may not have been continuing today but the spectacle of a human being dangling at the end of the gallows-rope, a degradation of humanity is still prevalent in the most civilised societies including that of ours in the name of punishment by legal authority.

“If we believe that murder is wrong and not admissible in our society, then it has to be wrong for everyone, not just individuals but governments as well.” – Helen Prejean.

With the growing of civilized society, time and again the provisions of capital punishment has remained the subject of serious debate in India and international societies. Most of the countries have abolished it and many have stopped its practice. United Nations has passed Death Penalty Moratorium Resolution With Record Support. On December 18, the United Nations voted to adopt resolution calling for a global moratorium on the death penalty, with an eye towards abolition. A record high 117 countries voted in favour of the resolution. In November, 2012, India upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to end the provision of capital punishment globally.

In independent India, the first hanging was that of Nathuram Godse and Narayan Apte in Mahatma Gandhi assassination case on November 15, 1949. The last execution to take place in India was hanging of Yakub Menon on July 30, 2015, who was convicted of financing the 1993 Mumbai bombings. In the 21st Century , only four men have been hanged. In all 371 people were known to be under sentence of death at the end of 2017.

In Mithu vs. State of Punjab, the Supreme Court ruled out that the mandatory death penalty is unconstitutional and struck down Section 303 of Indian Penal Code, which provided for a mandatory death sentence for offenders serving a life sentence. However, later on legislation for drugs, atrocity offences prescribe mandatory death penalty but the Supreme Court has not expressly struck down the language in such legislation as unconstitutional.

In 1980, Supreme Court in Bachan Singh vs. State of Punjab upheld the constitutionality of death sentence as the 35th report of the Law Commission submitted in 1967, justified its retention. The Court held that the death penalty should only be applied for the most heinous offences(the rarest of the rare). The Court ruled ‘honour killing’ as ‘rarest of the rare’.

In early 2013, following brutal Delhi gang rape case of a 23 year old woman in December, 2012, Justice Verma Committee recommended enhancing the maximum sentence for rape to “the remainder or natural life” but rejected the death penalty as a possible punishment. Nevertheless, on February 03, 2013, President Pranab Mukherjee approved an ordinance under which rape is punishable by death if it leads to death or if it leaves the victim in a ‘persistent vegetative state’. The ordinance was subsequently passed into law in April 2013.

There are several other human rights issues associated with death row convicts. One such issue is lack of access to legal aid and effective counsel for members of marginalised society. Supreme Court has often extolled about how essential legal aid is to the accused for a free and fair criminal trial. The right to free legal aid is even a fundamental right, as was laid down by Supreme Court in the Husanara Khatoon case in 1979. There have been numerous instances where courts ordered a retrial because the accused did not have a counsel to represent him. However, there are very few judgements where convicts were spared of noose of the hangman.

The Supreme Court in M.H. Hoskot case in 1978, held, that the right to effective counsel arises because judicial with procedural intricacies, legal submissions and critical examination of evidence leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature and judicial process, engineered by kindred legal technologies, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law.

The Death Penalty Research Project and Project 39-A, launched by National Law University(NLU), Delhi, found failure of safeguards in criminal justice system that revolve around death-row prisoners in India. The crucial aspect was the dearth of quality legal representation for death-row prisoners. Hence, the Project 39-A, took up the task of securing pro-bono legal representation for indignant death-row prisoners. The team Project is reported to have managed to secure the acquittal of one prisoner on death-row and the commutation of four prisoners. The research demonstrated that how a disproportionate majority of death-row convicts belong to economically marginalised classes.

The mental health problems of death-row prisoners are writ large. Right from the pronouncement of death sentence by trial court to final stage of mercy petition or review petition, which may take decades, they remain under the shadow of death. NLU has also launched the Mental Health Research Project on death-row convicts, the report of which has not yet come. The NLU in its Trial Court Sentencing Project(TCSP) examined 214 trial court judgements from Delhi, Madhya Pradesh and Maharashtra of cases where the death penalty was imposed between 2000-2015. The report found that over 1700 prisoners who were sentenced to death by trial courts during this period, the Supreme Court finally confirmed only 4.3% of the death sentences. One can imagine the mental state of those death-row convicts during the prolong painful wait of death.

President Pratibha Patil during her term had commuted the death sentences of 35 convicts. One of the beneficiaries of her mercy Bandu Baburao Tikde, convicted for the rape and murder of a 16 year old girl, had died from HIV, five years before the mercy granted to him by the President.

In Shatrughan Chauhan & Another vs. Union of India & Others, the Supreme Court emphasised the importance of clemency process for capital inmates. The court criticised the executive for its unreasonable delay in considering mercy petition of death-row prisoners. The court observed that “Undue, inordinate and unreasonable delay” in carrying out death sentences causing psychological torture. The court also denounced other practices such as executing individuals with mental illness and the use of solitary confinements. The court reaffirmed the Shatrughan decision in V. Sriharan Murugan vs. Union of India & Others. There court commuted the death sentences of three prisoners because of the unreasonable delay in considering their mercy petition, a delay of more than 11 years. It also rectified the argument that death-row inmates had to prove actual harm occasioned by the delay in order to have their sentences commuted.

Supreme Court bench, headed by CJI P. Sathasivam, commuting the death sentence of 13 convicts, Sathasivam observed, “Right to seek mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the Executive. Every constitutional duty must be fulfilled with due care and diligence; otherwise judicial interference is the command of the Constitution for upholding its values.”

After the Bachan Singh case judgement, the issue of the provision of death penalty has re-surfaced with the observations of Justice Kurian Joseph, in Chhannu Lal Verma Vs. State of Chhattisgarh case, while commuting the death sentence of the appellant to life imprisonment, who said that the time had come to review the need for the death penalty as a punishment, especially its purpose and practice.

Justice Joseph did not seek the reconsideration of the Bachan Singh judgement but only sought to re-examine the purpose and the practice of the death penalty and whether as a punishment, it serves any goal at all. Justice Kurian relied on 262nd report of the Law Commission which said that the capital punishment has failed to prevent death sentences from being “arbitrary and freakishly imposed ” and its lack of any proven detering effect on criminals.

Whatever may be the future course of action on capital punishment in India, the Supreme Court has expressed concern towards the agony of death row convicts. On December 13, 2018, Supreme Court Bench, comprising Justices Madan B Lokur, S Abdul Nazeer and Deepak Gupta on an application seeking that death row prisoners be treated at par with other convicts and should be provided all similar facilities as are provided to other prisoners, passed a seven page order.

The court placing in perspective certain aspects of the rights of prisoners addressed the most important question as “When could it be said that a convict is under the sentence of death?” “Is it when a trial court convicts an accused and sentences him to death or is it after a death sentence is beyond judicial scrutiny after the Supreme Court upholds the same and mercy petition is rejected?”

As such, a prisoner under sentence of death can only mean a prisoner whose sentence of death has become final, conclusive and indefeasible and which cannot be annulled and voided by any judicial or Constitutional procedure. Prior to this, such a prisoner cannot be said to be under a sentence of death in the context of Section 30 of the Prisoners Act, 1894.

The court also ruled that such a prisoner is entitled to every creature comfort and facilities such as bed and pillow, writing material, newspapers, books, meeting with family members, etc. Quoting Kishore Singh Ravinder Dev Vs. State of Rajasthan, the court held that the death row convict is entitled to move around the confines of the prison as is available to other convicts undergoing rigorous imprisonment.

The Court held that following the view expressed in Frances Coralie Mullin Vs. Administrator, Union Territory of Delhi, the death row prisoner, is entitled to have meetings and interviews with his lawyers or members of his immediate family and mental health professionals. The court in the end of the order directed Justice Amitava Roy Committee to look into all the issues regarding inhuman conditions in 1382 prisons as mentioned in the petition.

In M.A. Antony @ Antappan Vs. State of Kerala, the Supreme Court reiterated that in Bachan Singh Vs. State of Punjab, paragraph 209 of the report , it stated, “ There are numerous other circumstances justifying the passing of the higher sentence; as there are countervailing circumstances of aggravation….Judges should never be blood thirsty. Hanging of murderers had never been too good for them….It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern.” “Do not be too eager to deal out death in judgement. For even the very wise cannot see all ends.”- Tolkien

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