DEATH SENTENCE EXPLAINED 

1.Context

A Chinese court ordered a suspended death sentence for China-born Australian writer Yang Hengjun on Monday (February 5), over charges of espionage. The sentence means that after two years of jail time, his punishment will be converted into lifetime imprisonment. Yang has been under Chinese authorities’ detention since 2019.

2.Background

• Death sentence/Capital punishment, also known as the death penalty, is a state-sanctioned practice of killing a person as a punishment for a crime. 
• The sentence order that an offender is to be punished in such a manner is known as a death sentence, and the act of carrying out the sentence is known as an execution.
• While the standard applied by the judiciary is that of the rarest of rare principles (however subjective or Judge-centric it may be in its application), the standard applied by the executive in granting commutation is not known.
• In Shankar Kisanrao Khade v. State of Maharashtra (‘Khade’), the Supreme Court of India, while dealing with an appeal on the issue of death sentence, expressed its concern with the lack of a coherent and consistent purpose and basis for awarding death and granting clemency.

3.History of the death penalty in India

• An early attempt at the abolition of the death penalty took place in pre-independent India when Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the death penalty for IPC offences in 1931.
• However, this was defeated Around the same time, in March 1931, following the execution of Bhagat Singh, Sukhdev and Rajguru by the British government, the Congress moved a resolution in its Karachi session, which included a demand for the abolition of the death penalty.
• India’s Constituent Assembly Debates between 1947 and 1949 also raised questions about the judge-centric nature of the death penalty, arbitrariness in imposition, its discriminatory impact on people living in poverty, and the possibility of error.
• Pandit Thakur Das Bhargava complained regarding the errors associated with the death penalty.
• Dr Ambedkar was personally in favour of abolition.

4.Legal backing associated with the death penalty

• The IPC prescribed six punishments that could be imposed under the law, including death. 
• In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly altering the position of the death sentence.
• The Code of Criminal Procedure was reenacted in 1973 (‘CrPC’), and several changes were made.

 5.Constitutional and judicial opinions on the Death penalty

• In Jagmohan Singh v. State of U. P., the Supreme Court found that the death penalty was a permissible punishment, and did not violate the Constitution. 
• In 1979, the case of Rajendra Prasad v. State of Uttar Pradesh (‘Rajendra Prasad’) discussed what the “special reasons” for imposing the death sentence could be.
• A Constitution Bench of the Supreme Court in the case of Triveniben v. the State of Gujarat considered the question and held that only executive delay, and not judicial delay, may be considered relevant in an Article 21 challenge. 
• In Bachan Singh, the Court adopted the ‘rarest of rare’ guideline for the imposition of the death penalty, saying that reasons to impose or not impose the death penalty must include the circumstances of the crime and the criminal.
• Justice Bhagwati (17th Chief Justice of India) in his dissenting opinion found the death penalty necessarily arbitrary, discriminatory and capricious.

6.Criticism against the Death penalty

• Major arguments against the death penalty focus on its inhumanity, lack of deterrent effect, continuing racial and economic biases, and irreversibility. 
• Proponents argue that it represents just retribution for certain crimes, deters crime, protects society, and preserves the moral order.
• Death penalty violates Articles 14, 19 and 21 of the Constitution of India. 
• It was argued that since the death sentence extinguishes, along with life, all the freedoms guaranteed under Article 19(1) (a) to (g), it was an unreasonable denial of these freedoms and not in the interests of the public. 
• The discretion vested in judges in deciding to impose a death sentence was uncontrolled and unguided and violated Article 14. 
• Provisions of the law did not provide a procedure for the consideration of circumstances crucial for choosing between capital punishment and imprisonment for life, it violated Article 21.
• The decision of the US Supreme Court in Furman v. Georgia in which the death penalty was declared to be unconstitutional as being cruel and unusual punishment was also placed before the Constitution Bench.
• Irreversibility, fallibility, and that the punishment is necessarily cruel, inhuman and degrading a life whose purity is beyond the law.

7.Conclusion

• A real and abiding concern for the dignity of human life postulates resistance to taking a life through the law's instrumentality. 
• That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
• “Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional”, death sentences would only be awarded in the rarest of rare cases. 
• The Court did not address the question of whether the death sentence was an appropriate punishment for a non-homicide offence or applicable international law standards on this issue.