Philosophy Answer Writing Practice 2018 - Week 4 - Question 6

90 Days Philosophy Answer Writing Practice Question 2 for 07-Dec-2018

Instructions for Writing Answer

1. Write your answers in the comment section.

 

2. Experts will provide their feedback in reply.

3. Model Answers will be uploaded on this page the next day.

4. Rectify your mistakes and progress further.

5. All the Best.

07-Dec-2018 - Question 2

Can you justify capital punishment for crimes like rape, murder and corruption? Discuss (2017)


For Question 1 - Click Here

Model Answer

Note: The answer includes opinion taken by Law commission and Supreme court in various instances.

Capital punishment is the act of killing or executing a person, who was found guilty of a serious crime, through DUE PROCESS OF LAW.

In India, death penalty was prescribed for several crimes such as murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government, and abetting the mutiny by a member of armed forces and cannot be justified for crimes like corruption.

However, Death penalty is a subject if incessant debate given the contentious borders of ethics it straddles. As many feel that death penalty does little to deter criminals from perpetrating the crime, and it is often seen as the only means of finding emotional closure for the bereaved members.

Deterrent and Retributive theories support it, by stating that a person who deliberately commits a murder should be given capital punishment.

So, instead of extending death penalty to all cases of crimes like rape and murder, Indian supreme court adopted Rarest of the rare stand, although what constitutes rare is debatable

e.g., Nirbhaya Rape case, 2012 → even though Supreme court opted death penalty, the question arises whether death penalty is a solution to stop future rape cases, whether it can act as a deterrent.

The state has to prove that the accused does not demonstrate any probability of reformation or rehabilitation.

In Bachan singh, while upholding the constitutional validity of death sentence, imprisonment for life is the rule and death sentence is the exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and only provided that the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and the relevant circumstances, if it involved extreme brutality, exceptional depravity.

There is a need for principled sentencing without completely trammeling the discretionary powers of the judges.

Mitigating circumstances: If there is a probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society.

A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

A conclusion as to the rarest of rare aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating to both the crime and the criminal.

The tests that have to applied while awarding death sentence are

  1. Crime test
  2. Criminal test
  3. R-R test

To award the death sentence, the crime test has to be 100% satisfied, and criminal test should be 0%, that is no mitigating circumstance favoring the accused, like lack of intention to commit the crime.

Even if both the tests are satisfied, the R-R (Rarest of the Rare cases) test has to be applied, while applying which the court has to look into variety of factors like society’s abhorrence. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges.

Whether the person would be a threat to the society or whether not granting death penalty would send a wrong message to the society are additional factors to be looked at.

But, what is sorely lacking in most capital sentencing cases, is information related to characteristics and socio-economic background of the offender. – raised by 48th report of Law commission.

The uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty—the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. The situation is unviable as legal discretion which is conferred on the executive or the judiciary is only sustainable in law if there is any indication, either through law or precedent, as to the scope of the discretion and the manner of its exercise. There should also be sufficient clarity having regard to the legitimate aim of the measure in question. The Constitution of India provides for safeguards to give the individual adequate protection against arbitrary imposition of criminal punishment.

It is imperative, in this regard, since we are dealing with lives of people (both the accused and the victim) that the courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided.

And there is always a possibility of mismatch on how judiciary and executive deal with death penalties. While the standard applied by the judiciary is that of the Rarest of the rare principle (however subjective or judge-centric it may be in its application), the standard applied by the executive in granting commutation is not known. Therefore it could happen that in a given case, all the courts and the judges unequivocally uphold and are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the executive has taken a diametrically opposite opinion and has commuted the death penalty. This is the kind of uncertainty that has to be cast off.

United Nations General Assembly adopted resolution calling upon countries that retain death penalty to establish a worldwide moratorium on death penalty. India is one of the 39 countries that retain the death penalty.

Detterence effect: The death penalty does not serve the penological goal of deterrence any more than life imprisonment.

Retribution effect: Though retribution has an important role to play in punishment, it cannot be reduced to vengeance. The notion of “an eye for an eye” has not place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals.

Reformative effect: In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime. The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights with an adversarial criminal justice system, depriving them of the Benefit of doubt.

In the case of India, the Law commission in its 262nd report noted that – It is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been applied. There exists no principled method to remove such arbitrariness from capital sentencing.

Direction in which sentencing policy has head so far in India:

Philosophy

There are however concerns that abolition of death penalty for terrorism related offences and waging war, will affect national security. So the Law commission has recommended, that the death penalty be abolished for all crimes other than terrorism related offences and waging war.

The irrevocable nature of the sentence and the fact that the death row convicts are, for that period, hanging between life and death are to be duly considered. Every death penalty case before the court deals with a human life that enjoys certain constitutional protections and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards.

 

Note: There is no template for a correct UPSC answer, the model answer is only for your reference

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