Authored by Preeti, an LLM student at the National Forensic Sciences University (NFSU), Delhi
Introduction
The death penalty has always been a topic of global debate, and India is no exception. It becomes more relevant when West Bengal passed the ‘Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024’ which seeks to amend the key legislation, including the ‘Bharatiya Nyaya Sanhita, 2023 (BNS)’, the ‘Bharatiya Nagarik Suraksha Sanhita, 2023’, and the ‘Protection of Children from Sexual Offences Act, 2012’, specifically for the state of West Bengal. While the world is recognizing the inherent rights of ‘life’ and ‘dignity’, enshrined under various ‘Human rights law’, this bill seeks to introduce the ‘death penalty’ for the offence of ‘rape’.
The concept of the ‘death penalty’ is being scrutinised with the new legal norms, morality, and practicality. Despite the global shifting of abolition, over 50 countries still recognize capital punishment.
This blog seeks to analyse the ‘death penalty’, questioning on the grounds of ‘International human rights’, the modern justice system, risks of irreversible injustice, systemic biases, and global shifting in this regard.
India’s Position: The Impact of the Aparajita Woman and Child Bill, 2024
The proposed death penalty for the crime of rape in the ‘Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024’ has reignited discussions in India on the propriety of the death penalty. Although the bill's objective is to deter horrific crimes, it also raises serious questions about India's adherence to its obligations under international human rights treaties, particularly with regard to the International Covenant on Civil and Political Rights (ICCPR), which limits the application of the death penalty to the "most serious crimes."
Although India has always maintained the death penalty for crimes deemed exceptionally serious, this measure represents a major advancement in the application of the death penalty. However, the introduction of the death sentence for rape raises concerns about how these laws fit with changing international norms that are moving away from the death penalty. Studies from nations like the U.S. and the U.K. support the argument made by academics that the death penalty’s deterrent effect is essentially unproven.
Furthermore, questions have been raised concerning the ability of India’s legal system to administer justice impartially and fairly, given that structural injustices frequently result in erroneous convictions and disproportionate punishment of oppressed people. The proposed bill makes India's situation even more difficult to negotiate as it tries to balance upholding international human rights norms with addressing popular indignation over sexual abuse.
A Violation of the Right to Life
The bill enacted by the West Bengal government has raised a serious question about 'justice' and 'human dignity'. The core argument in the context of the 'death penalty' lies in the inherent contradiction between 'capital punishment' and 'International human rights law'. 'Universal Declaration of Human Rights' under Article 3 recognises the 'right to life', and 'International Covenant on Civil and Political Rights' (ICCPR) under Article 6 recognises that the 'right to life' cannot be deprived arbitrarily. However, it is evident from Article 6 that it allows capital punishment to those countries that have not abolished it, but it strictly limits it to the 'most serious crimes' only, and further, it provides rigorous safeguards. However, what constitutes "the most serious crimes" has not been provided, and it is often inconsistent interpretations across jurisdictions.
Some countries impose the death penalty for 'drug-related' offences, some countries for 'sexual offences', and some countries for even 'political dissent'. For instance, Iran imposes the death penalty for political dissent. In fact, last year it formed a 'Secret Committee' to punish those who backed the current anti-government protests. The International Covenant on Civil and Political Rights' (ICCPR), by virtue of its article 6 (2) mandates that the death penalty be applied only to “the most serious crime”. It is violated when the death penalty is applied arbitrarily for political dissent or minor transgressions. Their legitimacy under human rights instruments is further undermined by the fact that many of these instances disregard the requirements of due process and fair trials.
Risk of Wrongful Convictions
Strict guidelines governing the application of the death penalty are highlighted in the discourse on international human rights law, namely the right to life as guaranteed by Article 6 of the ICCPR. Ensuring the highest level of justice is one of the fundamental tenets of international law, particularly when dealing with situations involving the death penalty or other permanent punishments. The implementation of the death penalty raises serious concerns about the possibility of erroneous convictions, even with judicial safeguards in place. This could violate the fundamental right to life that international law aims to uphold.
The death penalty's permanent nature makes judicial errors more severe. Once the punishment is executed, there is no chance to reverse an erroneous conviction. In contrast to this reality, international human rights laws mandate the implementation of adequate safeguards to prevent the arbitrary deterioration of life. According to the Death Penalty Information Center, over 191 death row inmates have been cleared in the US since 1973, illustrating the frailty of even reputable legal systems.
Moreover, the Supreme Court of the US, in the famous case of Roper v. Simmons (2005), held that juveniles are barred from being executed primarily on the ground that they are less culpable because of their sense of responsibility, which is underdeveloped. Although this decision highlights the judiciary's culpability and its fairness in death cases.
However, it also highlights the inconsistencies in the application of the death penalty. Now the question arises:
In a legal system that highlights the need for caution in the execution of minors, should the same logic not be applied to all accused who face such a nature of punishment that is irreversible, given that there is always a probability of error in human judgment?
Discriminatory Application and Arbitrary Justice
Empirical evidence and other research support the argument that marginalised communities are disproportionately targeted for the death penalty. Disparities in socioeconomic status, race, and ethnicity have been linked to the application of the death penalty in numerous nations, including the United States. For instance, studies carried out by the Death Penalty Information Center have repeatedly demonstrated that Black offenders are more likely to be executed, especially in cases when the victim is white. According to the Harvard Civil Rights-Civil Liberties Law Review study, racial bias significantly influences who is given the death penalty, with Black defendants receiving death sentences at disproportionately greater rates than their White counterparts. This trend of racial discrimination is not exclusive to the United States; it is also visible in nations such as Saudi Arabia, where low-income foreign workers and members of religious minorities are more likely to be put to death.
In the context of India, recently 'Project 39A' was carried out by the 'National Law University, Delhi', which is dedicated to the research of 'Death Penalty'. As per this report, 76% of prisoners who were sentenced to death belong to 'backward classes', and 'religious minorities'. Such a high number of accused belonging to a specific class certainly creates doubt in the justice system. Such arbitrary punishment of the 'death penalty' also undermines the 'principle of natural justice', and it raises questions about 'fair' and 'just punishment'.
In this context, another question lies with the prosecution of an offence. It often depends on the prosecutors whether they seek the death penalty or not, whose biases and discretion can obviously influence the outcomes. It creates an element of 'non-uniformity', 'unpredictability', and 'inequality' in the system. In light of the arguments above, we can say that the 'death penalty' is not merely a question of 'crime and punishment' but also of social and systematic bias.
Moving Toward Global Abolition
A global movement towards the abolition of the death penalty has been aided by the arguments against it, which include discriminatory application, wrongful convictions, and violations of international human rights standards. Many nations have reexamined the usage of the death sentence due to the risks and systemic biases associated with it. They have realized that the irrevocable nature of the death penalty magnifies the impact of any judicial error or prejudice. The worldwide movement to abolish the death penalty has accelerated significantly as nations become more conscious of the consequences preserving the death sentence has on human rights.
According to the Amnesty International report, more than 70% of the world has abolished this punishment in both law and practice, in the year 2023. For instance, the 'European Union' has made a prerequisite to abolish the death penalty in order to get membership. In the landmark work "The Abolition of the Death Penalty in International Law," academic William A. Schabas contend that the global movement towards abolition is a reflection of a greater commitment to human dignity and the belief that state-sanctioned killing has no place in contemporary legal systems. It shows a regional consensus that the death penalty is contradictory to 'human dignity' and 'justice'.
However, other countries like China, Iran, and Saudi Arabia continue this punishment, frequently in violation of international human rights standards. Every year, thousands of people are executed in China; the majority of these deaths are related to drug trafficking and corruption. As demonstrated by the National Research Council's 2012 report, which found no credible deterrent impact, scholars like Susan Trevaskes contend that China's justification of the death penalty as a deterrent lacks evidence. Situations such as the 2020 execution of Jiang Renliang due to corruption raise questions about the impartiality of the justice system. Iran often applies the death sentence for nonviolent offences and political dissension, going against the international norm that states it should only be applied to "the most serious crimes." Academics contend that Iran represses political opposition via the death penalty. In Saudi Arabia also the Executions are still carried out mostly for political involvement. According to Human Rights Watch, these cases frequently lack due process and involve forced confessions, which is indicative of a history of applying the death sentence as a political tool.
The central argument that these countries put forth in favour of this punishment is that it serves as a 'deterrent' to crime. However, empirical research has always refuted this claim. Interestingly, in the year 2012, the National Research Council in the U.S. concluded that there is no credible evidence that suggests that capital punishment deters homicide more effectively. In the new trend, many countries are reconsidering their stand on the death penalty.
Thereby, there is continuous evolution in the 'International law' regime in this regard. 'The Second Optional Protocol' of the ICCPR, which aims to abolish the death penalty, reflects a growing consensus that this practice has no place in modern justice systems. Until the global community unites in its rejection of capital punishment, however, the death penalty will remain a blemish on the collective conscience of the world.
Conclusion
The death sentence as it exists now is still incompatible with both international human rights norms and contemporary legal systems. The use of it carries a serious risk of systematic bias, discriminatory practices, and irreparable injustice. Despite its good intentions, the Aparajita Woman and Child Bill, 2024 has the potential of exacerbating these injustices, particularly in a court system where disparities have been documented.
India must reevaluate its position on the death penalty and correspond to its domestic policies with worldwide abolition trends, given that it is a signatory to international treaties such as the ICCPR. In the wake of global efforts to abolish the death penalty, India must lead the way in guaranteeing that its legal system preserves the values of justice, equity, and human dignity.