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Death penalty: A brief history
K.T.S. Tulsi | 25th Nov 2012
An eye for an eye, makes the whole world blind Mahatma Gandhi
There is a school of thought that believes that to take a life when a life has been lost is
revenge, not justice. This school of thought is based on the belief, widely held in
Western countries, that no matter how efficient and fair the criminal justice system
may be, in actual practice, it is primarily inflicted upon the weak, the poor, the ignorant
and minorities.
Victor Hugo says:
What says the law? You will not kill
How does it say it? By killing!
Rarest Of Rare
While the death penalty is the severest form of punishment, in India it is awarded only
in the rarest of rare cases.
The test of rarest of rare was prescribed in the case of Bachan Singh (1980) and
substantiated in the case of Machi Singh (1983). But it has been widely criticised.
Scholars and critics have argued that the test is arbitrary and subjective.
These issues are debatable, but one issue on which there can be no difference of
opinion is that delay in execution of death sentence makes it cruel and inhuman, and
the Indian judicial system is notorious for inordinate delays.
Thirty years ago, the norm was about two years from death sentence to execution.
Now, it takes more than 10 years.
There are two kinds of delays: one, delay in the disposal of a case and sentencing;
two, delay in execution of death sentence after the final verdict of the Supreme Court.
Both affect the constitutional right to speedy trial under Article 21.
Del ay i s worse than death
In 1983, the Supreme Court held in the case of T.N. Vaitheeshwaran (1983) that
prolonged delay in the execution of death sentence was inhuman.
The SC held that a delay exceeding two years could be considered sufficient to entitle
a person on death sentence to demand the quashing of the sentence. In the same
year, in the Sher Singh case, the SC diluted that principle.
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Instead of a fixed period of two years, it prescribed a flexible test of being on the
death row for unreasonably long time. It still underlined the need for speedy
conclusion of proceedings, failing which the death sentence could be commuted.
But in the Triveniben case (1989), the SC said that a condemned prisoner had no right
to question the delay caused in the court and further that only that delay is relevant
which is caused after the final verdict of the apex court. Thus the delay in judicial
process was sought to be separated from delays caused by the executive. But even in
that case, the death sentence of the accused was commuted.
In various cases, the SC has considered varying periods of delay as sufficient for
commuting a death sentence. In the Vivien Rodrick case (1971), it was six years; in
Suresh (1981), it was seven years; in the Neti Sreeramulu case (1974), a one year
delay in carrying out the execution was held to be sufficient.
In the Lala Singh case (1978), six years delay was considered enough for commuting
the death sentence. In the Sadhu Singh case (1978), the death sentence was
commuted because of a delay of three years seven months.
Presi denti al Mercy
The President, under Article 72, can grant pardon or suspend or commute a sentence,
including a death sentence.
However, since the President is also a creature of the Constitution, even mercy cannot
be treated as a private act of grace on the part of the President.
As held by Supreme Court in the case of Sudhakar (2006), this power can be
exercised only on the advice of the government and only in aid of public welfare.
Thus the government can only take into account relevant factors for grant of mercy,
and it cannot allow itself to be influenced by irrelevant considerations.
If the decision of the government or President is found to be arbitrary, the same can
be successfully impugned by way of writ petition before the Constitutional Courts.
But there are no guidelines for the exercise of this power under Article 72. There is an
urgent need to prescribe a time limit within which a decision must be arrived at. The
state must not prolong the agony of a dying man.
Delay in administrative as well as judicial decisions also undermines the deterrent
effect of capital punishment and reduces public confidence in the criminal justice
system.
I firmly believe that it is not the intensity of the punishment but the certainty of it which
deters crime.
Some argue that all murderers deserve to be murdered and all mutilators to be
mutilated. Most societies, including India refrain from responding this way because
punishment is not only degrading to those on whom it is imposed but also to the
society that engages in the same behaviour as the criminals.
Either the delay in execution of death sentence should be curtailed and, if that is not
possible, the death sentence itself may have to be removed from the statutes because
prolonged pain and misery of people on death row should be considered cruel and
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inhumane and miserable by all standards of decency.
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