Critical Analysis of the Bharatiya Nagarik Suraksha Sanhita 2023 in the Context of Death Penalty

Introduction

The death penalty remains a highly debated issue across the world, invoking questions of human rights, state authority, and its effectiveness in deterring crime. Although many countries have abolished capital punishment, India remains one of the retentionist states. The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, a recent attempt to reform India’s criminal laws, offers several changes to how death penalty cases are handled. While it aims to modernize the procedures for the death penalty, significant concerns remain regarding its provisions. This analysis critiques the BNSS 2023, particularly focusing on its implications for the death penalty, the procedural shortcomings, and the limitations it imposes on judicial discretion.

Procedures Governing the Death Penalty in the BNSS

The BNSS 2023 continues to retain the death penalty in cases of the most heinous crimes, with provisions designed to ensure procedural fairness. Several provisions of the BNSS follow the procedural framework outlined in the Criminal Procedure Code (CrPC), ensuring that the death penalty is not passed arbitrarily and subject to thorough judicial scrutiny.

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Passing of Death Sentence

Section 22 of the BNSS outlines the procedure for the imposition of the death penalty by a Sessions Judge, Additional Sessions Judge, or High Court. This provision reflects the requirement of a special mandate to ensure the death penalty is only imposed by higher judicial authorities, ensuring consistency with Section 366 of the CrPC. The law also ensures that a convict is provided with a certified copy of the judgment, facilitating transparency and ensuring that an appeal can be lodged within the permissible time frame, thereby aligning with the principles of natural justice.

Confirmation of Death Sentence

Chapter XXX of the BNSS sets out the process for the confirmation of death sentences. Section 407 of the BNSS aligns with Section 366 of the CrPC, providing that the High Court must confirm a death sentence before execution. The High Court’s role in reviewing the case is crucial for ensuring that no error is made in the judgment. This process has been consistently upheld by the courts, as evidenced in cases like Jagmohan Singh v. State of Uttar Pradesh (1973), where the Supreme Court reiterated the importance of judicial oversight in capital punishment cases.

In Balak Ram v. The State of U.P. (2005), the Supreme Court emphasized that the High Court must examine all the evidence thoroughly, taking into account both the prosecution’s and defense’s submissions before confirming a death sentence. This case serves as an important reminder of the need for a cautious and careful approach when dealing with death penalty cases, ensuring that every aspect of the case is weighed meticulously.

Execution of Death Sentence

Section 453 of the BNSS deals with the execution of a confirmed death sentence. The BNSS mandates that the death penalty be executed by the Court of Sessions after receiving a warrant from the High Court. This section also addresses the suspension or postponement of the death sentence in cases where an appeal to the Supreme Court is pending or if the execution is stayed by the Court.

Section 456 introduces an important safeguard, providing that the death sentence for pregnant women shall be commuted to life imprisonment. This provision is in line with international human rights standards and recognizes the special circumstances of pregnant women, who are exempted from the death penalty in many countries.

Critical Analysis of the BNSS 2023 in the Context of the Death Penalty

While the BNSS 2023 makes several procedural improvements to the death penalty process, there are several critical aspects that warrant further scrutiny.

Limiting the Scope of Commutation

A significant concern regarding the BNSS 2023 is the limitation placed on the power to commute death sentences. Section 474 of the BNSS restricts the commutation of a death sentence to life imprisonment, whereas Section 433 of the CrPC permits commutation to any lesser punishment within the scope of the IPC. By narrowing the scope to life imprisonment, the BNSS limits the discretion of the government to reduce the severity of a sentence, even in cases where there may be mitigating factors or the convict’s potential for rehabilitation.

The Supreme Court in Mithu v. State of Punjab (1983) ruled that the mandatory death sentence in certain cases is unconstitutional as it leaves no room for judicial discretion. This case affirmed that sentencing must take into account the individual circumstances of the convict and that a rigid approach can be unjust. The BNSS's restrictive approach in limiting commutation reflects a troubling trend towards retributive justice over rehabilitative justice.

Lack of Modernization in Execution Methods

The Supreme Court in Raghubir Singh v. State of Haryana (1981) emphasized that the method of execution must be humane and should avoid unnecessary suffering. Furthermore, the Law Commission of India in its 2015 report suggested that lethal injection could be a more humane alternative. Despite this, the BNSS retains the method of hanging, ignoring the calls for reform in execution practices.

The Mercilessness of the Death Penalty

The death penalty is often criticized as a retributive form of justice, where the focus is on punishment rather than rehabilitation or restoration. The continued use of the death penalty, despite the lack of empirical evidence supporting its deterrent effect, raises significant ethical concerns. The BNSS 2023, by failing to provide avenues for meaningful review of mercy petitions, exacerbates the concern that the state has unchecked power over life and death.

The Supreme Court in Bachan Singh v. State of Punjab (1980) upheld the constitutionality of the death penalty but also laid down the “rarest of rare” doctrine, which restricts the use of the death penalty to only the most extreme cases. However, despite these safeguards, the BNSS 2023 provides limited checks on the executive’s discretion regarding mercy petitions. This lack of a robust review mechanism further entrenches the state's power to execute individuals without adequate recourse for review.

Conclusion

The Bharatiya Nagarik Suraksha Sanhita 2023 attempts to modernize India’s criminal justice system but falls short in its approach to the death penalty. By limiting the scope of commutation and retaining the archaic method of hanging, the BNSS 2023 does not adequately address the evolving concerns of fairness, human dignity, and justice. Moreover, its failure to fully embrace humane alternatives and its rigid approach to sentencing reflect a troubling commitment to retributive justice over reformative measures.

As India moves forward, it is imperative that laws like the BNSS evolve to reflect contemporary understandings of justice, human rights, and the role of the state in administering punishment. The country must seriously reconsider the use of the death penalty, especially given the growing body of evidence against its effectiveness as a deterrent. Ultimately, India’s legal system should seek to prioritize rehabilitation, compassion, and the potential for reform, aligning with the principles of justice in a democratic society.

In light of cases such as Shatrughan Chauhan v. Union of India (2014), which underscored the importance of fairness and humanity in the execution process, the BNSS 2023 must be revisited to ensure it upholds the values of justice, equity, and human dignity.