Abolition of Death Penalty: Transforming Justice, Preserving Lives
INTRODUCTION
Lon Fuller’s attempts at expounding upon the abolition of the death penalty attempt to go deep within the interaction that exists between the law, morality, and society. This is a legacy to legal philosophy in terms of the principles of legality as well as the moral bases upon which laws are said to be founded. While elaborating on abolition of the death penalty, Fuller addresses the moral issues of capital punishment, the space that the law as an institution occupies in the dignity of human beings, and the changes in society that act as a breeding ground for legal change.He points out that the majority of nations have abolished the death penalty because they recognise how it infringes on certain liberties that people are unwilling to give up.
According to him, the global trend of nations giving up on the death penalty represents a shift in global ideals towards greater respect for human dignity and the defence of human rights. His analysis has thrown up an excellent reason why more and more people are arguing that the death penalty is no longer compatible with our modern ideas of justice and human rights. In so viewing, it is thus a single moral and cultural leap forward, in Fuller’s view, rather than merely a rule of law change represented by the abolition of the death penalty.
In this way, it seems that the death penalty’s repeal would be the best way to create a society that is more egalitarian and compassionate overall. This also speaks to the dedication to the idea of forgiveness and the sanctity of human life. His writings still impact the discussions today, primarily because they establish a legal framework that legitimately upholds justice, human dignity, and the preservation of individual liberties.
OVERVIEW OF LAWS INDIA FOR ABOLITION OF DEATH PENALTY
India’s perspective on the death penalty is complicated, balancing the line between demands of its abolition in the present and the death penalty’s historical application. It also includes some key legal frameworks which are as follows :-
1. INDIAN PENAL CODE (IPC), 1860 :
The Indian Penal Code stipulates that the death sentence is mandatory for a number of crimes, such as murder, insurgency against the government, and acts which are associated with the terrorism and in The Bharatiya Nayaye Sanhita, 2023 which is also known as Indian Justice Code and it also includes the section 104 for death penalty which says Section 104 describes the legal ramifications for murderers who are currently serving life sentences. These people could face the death penalty or an extended life sentence that would take them beyond their natural death.
2. CODE OF CRIMINAL PROCEDURE (CrPc), 1973 :
The death penalty’s procedural requirements are outlined in the CrPC, including need for a higher court’s authorisation. According to section 366 of CrPc When the Court of Session passes a sentence of death the proceedings shall be submitted to the High Court, and the sentence shall not be carried out unless it be confirmed by the High Court. The Court passing the sentence shall commit the convicted person to jail custody under a warrant.1
3. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN ACT), 2015 :
This act forbids the use of capital punishment on minors, that is, persons less than 18 years old at the time of the commission of the offence. It also finds an avenue to provide for the care, protection, treatment, development, and rehabilitation of neglected or delinquent juveniles. According to Section 27 it mandates the establishment of a Child Welfare Committee by the state government in each district to handle matters involving children who require care and protection. The committee will be led by a chairperson and will consist of four members, one of whom must be a woman. Members will serve for a period of three years and Section 31(1) deals with assigning ultimate decision-making authority to the CWC in cases concerning the matters of children’s development, care, protection, and rehabilitation.2
4. MENTAL HEALTHCARE ACT, 2017 :
According to this Act, a person suffering from a mental disorder cannot be executed. To prevent and relieve the suffering and distress of persons with a mental illness lacking decision-making capacity. To prevent people with mental illness where appropriate being directed through the criminal justice system if they were insane when committing a crime or are found unfit to stand trial.3
5. THE DEATH PENALTY (ABOLITION) BILL, 2015 :
On December 18, 2015, the Death Penalty (Abolition) Bill, 2015 was presented in the Rajya Sabha. The bill sought to replace the death penalty with life imprisonment and required state governments to pass similar legislation on offences under their respective state laws within six months of the act’s enactment. The bill called for the repeal of the death penalty for all crimes under laws passed by the Indian Parliament. This measure was undoubtedly a turning point in India’s ongoing discussion about the death sentence. Furthermore, take note of the fact that it adopted the Law Commission of India’s recommendation in its 262nd report about the application of the “rarest of rare” theory to determine whether an offence carries the death penalty.4
STATISTICS
India still applies the death sentence or penalties for some crimes which are heinous in nature and has not abolished it. The current status shows india has not abolished the death penalty which involves murder, terrorism activities and in certain cases of rape as well. The death penalty is permitted by law and is frequently defended as a deterrent to serious offences.
This graph shows that the crime rate was dropped in 2020, specially the rape cases but it risen up again and are happening frequently in india. Also, 107 women were attacked with acid, 1,580 women were trafficked, 15 girls were sold and 2,668 women were victims of cybercrimes.5
This graph shows that Uttar Pradesh (UP) has a significant crime rate, but it is not the highest in India. Nonetheless, UP does have a high volume of occurrences that are reported; as of 2022, the state’s crime rate was 171.6%, which is lower than the 258.1% national average. The states with the highest crime rates in India are Uttar Pradesh, Kerala, Maharashtra, Delhi, and Bihar.6
GLOBAL CONTEXT
At that point, more than 90 nations have abolished the death penalty for all crimes globally2. Yet, India still has it with countries like the United States, Japan, China, Iran, Saudi Arabia and Iraq. In December 2022, India opposed a UN General Assembly resolution urging the establishment of a global moratorium on the use of the death penalty, which was endorsed by 125 countries and it also includes organised crimes, cybercrime, human rights violation, violation against minorities and specially women in india. If we look at the diverse perspective the global crime network involves drug trafficking and human trafficking as well. In order to secure safety and justice, cooperative efforts are crucial, as demonstrated by the global context of crime.7
LON FULLER’S PERSPECTIVE ON ABOLITION OF DEATH PENALTY
Among the most eminent legal philosophers, Lon Fuller is well known for his studies of Legal Morality and Principles of Legality. Even though Fuller did not specifically address the abolishment of the death penalty, we can identify a way around this issue by looking more broadly at his legal thought. He outlined eight fundamental moral principles for laws, which serve as the foundation for the requirements needed for them to be fair and function as intended. Among them are general guidelines, declaring anything as a norm (generality), refraining from retroactivity, and being clear. Fuller believed that these conditions would have to be met for a legal system to function and for laws to have moral legitimacy. According to Lon Fuller’s perspective the death penalty principle can be applied in principle of generality, all people must be treated similarly by the law.
Nonetheless, the death sentence has frequently come under criticism for being imposed disproportionately on marginalised populations, such as members of racial minorities and those from lower socioeconomic status. One could argue that this inconsistency violates Fuller’s generality principle. These qualities are forbidden because they prevent people from knowing and abiding by the laws in an open, intelligible, and straightforward manner. The death penalty process is complicated and frequently veiled in secrecy, starting with sentences and continuing through appeals, when it comes to one of the most important decisions a government official will ever make: whether to execute a prisoner detained in state custody.
Furthermore, the credibility of the death penalty is weakened by the lack of openness. This could imply that, as Fuller says, the death sentence ought to be considered a moral matter under the law. Because the death penalty is permanent, its moral ramifications are much harsher, especially in light of the potential for erroneous convictions as a result of a flawed legal system. According to the Maxwell/Fuller principles, a just legal system would include components like justice, openness, and the defence of fundamental human rights.
Although Fuller concentrates on the morality of law, the moral practicality of the death penalty attracts it. Capital punishment is irreversible, and its irrevocable nature brings up various moral dilemmas, especially because of the high risk of error in determining guilt and the unequal status of ethnic minorities. According to Fuller, what should be seen in a legal system is not only justice, but also the basic principles of fairness itself (fairness), visibility and certainty (visibility) while protecting human rights. 8
PROPOSAL
In India, there are still strong arguments in favour of and against the death sentence. Nonetheless, there is a strong argument for its repeal when taking Lon Fuller’s definition of legal morality into consideration. Suggestions will include such as laws should be general in applicability and implementation, Laws must be understood and accessible to all the people, further operations should be subject to the law, not previous actions, Laws ought to be comprehensible and unambiguous, Laws shouldn’t conflict with one another, Laws have to be practical for people to abide by, Laws ought to be constant and unchanging and the written laws and how they are applied should be consistent.
Errors in judgement cannot be corrected since the death penalty is permanent. Because it does not provide for the reversal of incorrect assumptions, this goes against the fundamental idea that laws should be possible to follow. Laws as written and their application frequently differ significantly. An inconsistency between the legal framework and its practice is demonstrated by the arbitrary and uneven application of the death penalty. The death sentence is a retrospective punishment for previous acts by definition. But the legal procedures that lead to its imposition can be drawn out and unstable, with regular shifts in the standards and interpretations of the law by the courts.
Lon Fuller also mentions about some countries who have abolished the death penalties for all the crimes which involves such as Australia (1985), Denmark (1978), Portugal (1976), France (1981), South Africa (1997), Canada(1998), Mexico (2005), United Kingdom (1998), Central African Republic (2022). The abolition of the death penalty in these nations represents a major step towards bringing their legal systems into compliance with human rights standards. Lon Fuller contended that the death penalty was an infringement on the rule of law since it is a form of punishment that goes against moral and legal standards. Fuller thought that since the death sentence is final, it goes against the ideas that the law should uphold human dignity and reason. Consequently, Fuller thought that in a just judicial system, the death penalty should be abolished.
CONCLUSION
Perhaps Lon Fuller Would Be Against the Death Penalty’s Applicability A foundation for assessing whether laws are morally righteous and fulfil practical goals is provided by the Fuller principles: generality, public promulgation, prospectivity, clarity, non-contradiction, possibility of compliance stability, and congruence between official conduct and declared rule. These ideals are frequently violated by the death penalty. When the law is applied arbitrarily and discriminatorily, this general principle of application is frequently broken. The majority of those impacted were from marginalised populations, demonstrating their lack of equality before the law.
The criteria used to determine whether to apply the death penalty, such as the requirement that a crime be “the rarest of rare,” are typically ambiguous or imprecise, leaving room for subjective judgements. This undermines the goals of stability and clarity. Furthermore, because the death penalty carries such severe consequences, it is hard to undo poor legal judgments, and this kind of transgression is disrespectful to oneself. There is reason to be concerned because there is a chance that a misunderstanding could have deadly results. The overuse of the death penalty is one area where the gap between the black letter law and its application is most pronounced, pointing to a failure of the law in its practical execution.
According to Fuller’s observations, any legal system must adhere to certain rules in order to be just. This suggests that law has an underlying morality. To put it another way, Fuller’s vision of a judicial system free from moral guilt and shame does not align with the death sentence due to its severity and the possibility that once something has been done, it cannot be undone. According to Fuller, the elimination of the death penalty is therefore a necessary step towards achieving a justice system that is morally and coherently consistent, as well as a matter of upholding human rights. This conclusion emphasises how crucial it is to match moral standards with legal procedures in order to guarantee justice and equity for all people.
AUTHOR: VIDHI KAPOOR
1)https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/CAPITAL_PUNISHMENT_IN_INDIA.pdf
3) https://www.publicguardian.qld.gov.au/guardianship/what-is-impaired-decision-making-capacity
4) https://blog.ipleaders.in/death-penalty-should-be-abolished-an-ongoing-debate/
5) https://www.bbc.com/news/world-asia-india-62830634
6) https://www.adda247.com/upsc-exam/crime-rate/
8) https://www.londonmuseum.org.uk/blog/executions-and-death-penalty-reforms-in-britain/
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