General Studies Paper 2 (Indian Polity & Constitution)
Question:- 75. Capital punishment is retributive justice and its effectiveness in curbing crimes is debatable. In this context, critically examine the need for continuance of capital punishment in India. Answer in 250 words.
Sep 26, 2022
Answer:-

 

INTRODUCTION:


The concept of retributive justice has been used in a variety of ways, but it is best understood as that form of justice committed to the following three principles:

1. that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment;

2. that it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve; and

3. that it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers.

BODY PARAGRAPH

The idea of retributive justice has played a dominant role in theorizing about punishment over the past few decades, but many features of it—especially the notions of desert and proportionality, the normative status of suffering, and the ultimate justification for retribution—remain contested and problematic.

Constitutional Conflict:

We have a procedure prescribed by the law for criminal investigation. Article 21 of the Constitution (which is fundamental and non-derogable) states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Therefore, it is the responsibility of the police, to uphold the Right to Life of every individual whether an innocent one or a criminal.

Salwa Judum case in 2011 it was laid out that no wielder of power can be allowed to claim the right to perpetrate state’s violence against anyone- (Article 14).

In Encounters case before the Andhra Pradesh High Court it was argued that, the discussion on the law was on ‘whether a plea of self-defence where excessive force is used, should be tried for manslaughter or murder’.

There is no law in force in India that authorises the police to kill therefore, the plea of self-defence by police cannot be used to rationalise a targeted killing of suspects.

 

Challenges with the Present System

1. Stringent Laws: Some of the existing legal provisions are too harsh in ways that harm both men and women, and other important legal provisions are not being implemented as laid out by Justice Verma Committee report .

2. The Criminal Law (Amendment) Act, 2013 went well beyond what was recommended by the Verma Committee Report and introduced the death penalty for some circumstances around rape, including repeat offences

3. This had further created some issues:

• There has been further criminalisation

• laws have removed any discretion in minimum sentencing from the hands of judges.

• Inadequate Protection: not much loopholes in laws concerning sexual violence against women but on the other hand, there is no legal protection for adult men from rape; and under the new Transgender Persons (Protection of Rights) Act, the sexual abuse of a transgender person carries a maximum sentence of two years only.

• Powerful Accused.

• Time-consuming Process

 

CONCLUSION:

Justice delayed is justice denied but a civilised society is not just about retribution, but also about deterrence, and in less serious crimes, rehabilitation of the offenders.

According to Dr. B.R. Ambedkar, the pathways of justice are not linear nor without obstacles. But we have, as a people, chosen the route of democracy and the Constitution, so we really have no option but to school ourselves in constitutional morality that with time must replace public morality.