"No person shall be deprived of his life or personal liberty except according to a procedure established by law."- Article 21

India is one of the 78 retentionist countries in the world where capital punishment is still legal. The debate over the social and moral stigma surrounding capital punishment has been discussed and debated for decades. However, the court has, time and again, opined in the favour of death penalties to be retained in the country.

The recent judgement, setting a date for the death penalty declared upon Shabnam Ali and Saleem for the murder of 7 members of Shabnam's family in Amroha, Uttar Pradesh, again sparked a nation-wide debate on what is considered to be an orthodox and draconian punishment in the 21st century. In this paper, we will look through an exegesis of arguments both in favour of and against capital punishment in India, with regards to potential violations of the Right to Life in India (Article 21).

Constitutional validity of capital punishment
Article 21 of the Indian constitution which grants the right to life as an unequivocal and fundamental right, comes with certain limitations. The 35th Law Commission Report of 1967[1] enumerated how discarding the death penalty provisions in India would not be for the larger benefit of the society. Keeping the protection of citizens at the primary point of their discussion, the report held that upholding law and order in a country with a large area and vast educational and moral differences, a provision for capital punishment was integral to deal with certain cases.

The constitutional validity of capital punishment in India has also been challenged numerous times in courts under Articles 14, 19 and 21. In Smt. Shashi Nayar vs. Union of India, the court held that capital punishment did not violate Article 21 of the constitution, as it was granted only in the "rarest of rare" cases and through the procedure established by law[2].

Jagmohan Singh vs. State of UP and Bachan Singh vs. State of Punjab[3] had already set similar precedents upholding the constitutional validity of death penalties in India. In this case the court had emphasised on the disparity in the levels of morality and education in the country[4] due to which, the country cannot afford to take the risk of abolishing capital punishment completely.

However, in Machhi Singh vs. State of Punjab, the court also clarified that "life imprisonment is the rule, and death sentence is an exception."[5] Thus, death penalty is awarded only for the gravest of offences where life imprisonment may not be an apt punishment. Furthermore, in Maneka Gandhi vs Union of India, it was held that the Right to life and personal liberty of a person can be taken away only if the procedure established by law is fair, just and reasonable[6].

This precedent can be applied to cases involving capital punishment as well. As for Article 14, the court held in Rajendra Prasad v. State of Uttar Pradesh[7], that the article does not invalidate the awarding of a death penalty. In fact, Article 14 ensures that a "non-arbitrary and civilized punitive treatment" is provided to the accused especially on charges punishable with the death penalty. Article 19 also stresses upon the reasonability of depriving one of one's right to life, but does not invalidate capital punishment itself.

Analysis and conclusion
"An eye for an eye will make the whole world blind."

A basic argument for the repealing of the death sentence in India centres around this principle. The absence of any deterrent effect, as first proposed by Beccaria, also questions the aim/objective of capital punishment. The irrevocable nature of the punishment is a strong argument in favour of the repletion of death penalties. Court cases are decided by judges and most often people forget that judges too, function as humans and not a form of divine entities.

To human is to err, and in the cases of judges, an err can end a person's life. This "mistake of law" however, is rectifiable in most cases. These mistakes can take place when a there is disregard of key evidences, overlooking of some integral evidence in the case etc. However, when a capital punishment is awarded, this "mistake of law" becomes a permanent regret. A human loses his life, and there is no rectification.

The barbarity of this idea was also one of the leading arguments that was discussed before the law commission for its 35th report. As for the "fair, just and reasonable" clause established in Maneka Gandhi vs Union of India, what constitutes a fair, just and reasonable procedure is not mentioned anywhere in the constitution. Thus, another question arises - Whether courts should have the right to decide the fairness of procedures, which in itself is a highly subjective area? What's fair for you, may not be a fair practice for another.

However, before coming to a conclusion, it is imperative to take into consideration the opposing arguments. Beccaria's theory presents a strong point on the absence of deterrent effects of capital punishment, but views the applicability of law from a purely deterrent manner. In my opinion, the nature of crimes should decide the severity of the punishment. Let's take the example of the Harpe brothers in the US. The Harpe brothers were the first recorded serial killers in the US who were responsible for more than 40 murders and countless rapes.

Their actions were brutal and included mutilation of bodies of the victims which included even women and children. Now, in such a case, would Beccaria's argument of prolonged punishments to "reform the offenders and prevent further crime" provide justice to the victims? The answer is - no. In such cases, the aim of law should not be to deter, but to deliver the most apt punishment possible. This case further shows a contradiction in Beccaria's work. Beccaria argues against the death penalty but also preached that a punishment should be proportional to the crime.

A question here then arises:
Is capital punishment not proportional to the crimes committed by the Harpe brothers?

From a legal standpoint, all fundamental rights come with an exception. The court considers some crimes to be so cruel and barbaric, that even a sentence of life imprisonment is not considered an appropriate judgment. Take the example of Shabnam Ali and Saleem as discussed in the introduction. Shabnam Ali is set to be the first woman to be hanged in India since independence for the killing of seven members of her own family, including her 10-month-old nephew.

In such cases, the question of what counts as an 'appropriate' punishment becomes quite complex. Opposing the death penalty in such cases, might make one seem to be insensitive and morally corrupted. Arguing for the life of a person suspected of killing seven people including an infant, puts into question the very integrity and compassion of a person. For the adversaries of capital punishment a question arises - How should the death of seven people be avenged?

What is the appropriate punishment in such a scenario? If common citizens can take away the life of others, why should the established courts of justice be exempted from doing the same to provide justice to the victims? The situation of law and order since the 35th report of the Law Commission has worsened and currently shows no signs of improving. In this situation, abolishment of the death penalty may lead to an unprecedented rise in the number of heinous crimes.

Apart from the jurisprudential standpoint, my personal understanding of the situation is a little different. The reasoning of the legislature behind the creation of Article 21 was to establish the right to life as a natural and universal right to all citizens and even non- citizens. However, given the subjective and unpredictable nature of humans, no right can be structured as an absolute right with no limitations. As held by the court, death penalty is to be awarded only in the rarest of rare cases and only for extremely heinous crimes.

For most participants on this debate, these heinous crimes remain abstract, i.e., we have personally not been victims of such crimes, and neither have we been emotionally connected to such cases. Thus, we debate about the repletion of the capital punishment, but would we hold the same view, if someone close to us becomes the victim of such a crime? Would we still look at the death penalty as barbaric, if the victim is not just some stranger, but a near and dear one?

We enjoy a privilege when discussing the merits and demerits of capital punishment, as we are exempt from the anguish felt by those who were the most affected due to these crimes. Moreover, abolishment of the death sentence in the absence of an 'appropriate' alternative punishment is not possible. Certain crimes, the Delhi gang rape case for example, may be deemed to be too grave for a sentence like life imprisonment.

End-Notes:

1. Government of India. (1967). Law Commission Report. Ministry of Law.
2. Smt. Shashi Nayar vs. Union of India, 1992 AIR 395.
3. Jagmohan Singh vs. State of UP and Bachan Singh vs. State of Punjab, 1980 2 SCC 684.
4. Ibid.
5. Machhi Singh vs. State of Punjab, 1983 AIR 957.
6. Maneka Gandhi vs Union of India, 1978 AIR 597.
7. Rajendra Prasad v. State of Uttar Pradesh, 1979 AIR 916.