Capital Punishments: Rights Of Victims Vs. Convicts

1. Capital Punishments: Rights Of Victims Vs. Convicts Capital punishment is one of the most ancient methods of punishments, and historically, has been opted by almost every part of the world. Whilst, India has chosen to be a ‘retentionist’ by preserving death penalty in its statute book, it applies the same as the ‘rarest of rare cases’ doctrine, as established in the case of Bachan Singh v. State of Punjab. The most recent example of capital punishment is the infamous 2012 Delhi Gang Rape and Murder Case where the four convicts were executed after exhausting all their legal remedies on March 20, 2020. There have been various debates on, whether capital punishment violates the basic human rights, particularly the right to life and personal liberty of death-row convicts as enshrined under Article 21 of the Constitution of India (“Constitution”). This question of punishment poses a complex problem which requires a working compromise between the competing views based on reformative, deterrent and retributive theories of punishment. In working out this compromise, it is also important to strike a balance between rights of the convicts as much as the rights of a victim to seek justice. The safeguards provided in the Indian legal regime for death-row convicts have often,

2. perceivably, been used as tactics to delay their impending execution, under the garb of a challenge. Thus, the pertinent question which arises, is how to make such laws victim-centric in order to provide speedy justice while simultaneously maintaining the rights and personal dignity of death-row convicts. This piece seeks to explore the jurisprudence with regard to evolution of capital punishment, remedies provided to convicts and how inordinate delay caused on account of such remedies obstructs the principles of natural justice and speedy trial. Evolution of Statutory Provisions The issue of capital punishment was raised for the first time in British India’s Legislative Assembly in 1931, where Gaya Prasad Singh, a Member from Bihar introduced a Bill to abolish capital punishment for offences under the Indian Penal Code, 1860 (“IPC”). However, the Bill was unsuccessful. The most notable change in the laws related to capital punishment was observed in 1955, when the Parliament repealed Section 367(5) of the Code of Criminal Procedure, 1898 which mandated the Courts to record reasons where life imprisonment was imposed even though death penalty was an option. However, in 1973 changes were made to Section 354(3) of the Code of Criminal Procedure, 1973 which mandated the courts to provide special reasons for imposition of death sentence. Initiative through Law Commission Reports In 1967, the 35th Report of the Law Commission recommended the retention of capital punishment in India and stated that the idea of retribution should not be understood as an “eye for an eye”, but in its refined form as public denunciation of crime. It also highlighted the category of offenders who are considered beyond or incapable of reformation. In 2015, the Law Commission of India chaired by Justice A.P. Shah submitted its 262nd Report that the death penalty does not serve the penological goal of deterrence any more than life imprisonment and recommended the abolition of death penalty for all crimes other than terrorism-related offences and waging war against the State. Evolution of Judicial Principles

3. In 1973, the constitutionality of capital punishment was first challenged in the case of Jagmohan Singh v. State of Uttar Pradesh , where the Supreme Court upheld capital punishment and held that it was permitted. Thereafter, the constitutional validity of capital punishment was upheld by the Supreme Court in Bachan Singh which marked a significant shift in the judicial policy while limiting its application to the ‘rarest of rare cases’. The Court also set out guidelines for considering both aggravating and mitigating circumstances in imposition of death sentence. Referring and recalling these guidelines, as spelt out in Bachan Singh , the Supreme Court in Machhi Singh v. State of Punjab , culled out a more precise set of guidelines to be applied to the facts of each individual case which involves the question of imposing death sentence, while also explaining the circumstances which constitute the ‘rarest of rarecases’. Constitutional Safeguards The primary reason for providing multiple safeguards at various stages of procedure is to minimize the scope of error in implementing capital punishment, as after implementation, there would be no going back from the punishment. In order to ensure a fair and reasonable procedure, as highlighted in the Maneka Gandhi judgment , there are various legal remedies available to death-row convicts whose review petitions have been rejected by the Supreme Court. The concept of curative petition was structured in the case of Rupa Ashok Hurra v. Ashok Hurra , where the Supreme Court clarified its curative power, derived from Article 142 of the Constitution supported by Article 137. However, as there is no such time limit for filing a curative petition, it often leads to its misuse by individuals who deliberately file the same to cause inordinate delay in the procedure. After a death-row convict has exhausted all the available remedies, a mercy petition may be filed as a last resort and presented to the President of India under Article 72 or to the Governor of the state relevant state under Article 161 of the Constitution, and such petitions are required to be decided with the aid and advice of the government. Such a petition can usually be filed within a period of 7 days after the date on which Superintendent of jail informs a death-row convict about the dismissal of the appeal by the Supreme Court. Inordinate Delay – Cause of Concern

4. Albeit, the guidelines highlighted by the Supreme Court in Shatrughan Chauhan v. Union of India and Epuru Sudhakar v. Govt. of AP strive to protect the right to life and personal liberty of death-row convicts as guaranteed under Article 21, at times said safeguards and guidelines have caused an unreasonable delay in execution of the death row convicts. Resultantly, the rights of victims are compromised. The most recent example can be observed in the 2012 Delhi Gang Rape and Murder Case , where the four convicts continued to file curative petitions at various intervals of time after the issuance of death warrants. Such steps were, generally, perceived to have been caused for intentionally delaying in the execution. The purpose of forming such safeguards was to provide basic human rights to the death-row convicts, but the lack of provisions dealing with the time limit often violate victim’s right to speedy trial and justice. Need for Balance There is no gainsaying that there is a dire need to strike a balance between the rights of convicts and victims to seek speedy justice. Whilst, it is important for the state machinery to ensure that the principles laid down for the (so called) benefit of the death row – convicts are not hampered, it is also important to bear in mind the pain of the victim, who was, perhaps, extra judicially executed by the convicts. Bearing this in mind, the Central Government has recently filed an application for modification of guidelines laid down in Shatrughan Chauhan. It appears that the main purpose of this application is to seek additional victim and society-centric guidelines and clarity regarding time limit within which a death-row convict should be permitted to file a curative petition. Such guidelines and clarifications are likely to lead to a swift execution and also help the convicts to opt for such safeguards in a time-bound manner. Further, the application seeks that execution of a convict who has exhausted legal remedies should not be delayed merely because his co-convicts have not opted for such remedies. However, this issue is highly debatable especially after considering the case of Harbans Singh v. State of UP , where three people were awarded death sentence out of which, death penalty of one of the convicts was commuted to life sentence, which was later used by the co-convict as argument to get his sentence commuted. However, the third co-convict who did not file a review petition had already been hanged

5. Currently, the application is pending in the Supreme Court ansd endeavours to achieve an optimum balance as justice to the accused or is as important as justice to the victim. Vipul Ganda is an Independent Litigation Counsel practicing at the High Court of Delhi. He was assisted by his chamber colleague, Advocate Guresha Bhamra in writing this article.