Capital punishment in India, is a prolonged debate and many democracies of the world have already done with the concept of the capital punishment and many others are thinking of abolishing this as it is against the principle of natural justice and also, in India, the Article 21 of the constitution right to life is guaranteed as a basic fundamental right.
Beside this, even in the countries, where it is not being abolished, the doctrine of rarest of rare cases is being followed and even in these cases the rate of execution is almost negligible or something like 1 in 100, we can say.
Most commonly, the capital punishment is converted in to life imprisonment and even when it is not so, than there is too much delay in the execution that it causes a lot of mental agony to the convict and his/her relations also. Many a times, death row convicts dies in the prison waiting for their execution.
So, there is a strong need either to abolish the same from the Indian justice system or to make it that much effective that neither there is delay being caused in the execution nor it’ll cause mental agony to the convicts. Introduction
“ We are all the creation of the god. I’m not sure a human system created by a human being is competent to take away a life based on artificial or created evidence.”- A.P.J. Abdul Kalam.
India is a democratic country which guarantees to its citizens Human Rights and also at the same time India has incorporated the provision of capital Punishment in its penal codes. However, the same is awarded only in the rarest of the rare cases or we can say only when any heinous crime is committed like rape or murder. But, in a country which is very diverse and has a huge population, these crimes, which are categorized by our so called justice system as heinous crimes, do often committed or we can also say that there is no single day passes when there is no murder or rape is being committed. Therefore, for coercing the wrongdoers death penalty/ capital punishment is being incorporated and it’s the highest available punishment available to be awarded to wrong doers though it might have infringed their[wrongdoers] Human Rights.
There is a prolonged debate going on over this issue since, we can say, the independence, though it was incorporated in the Indian Penal Code,1860, because it is only when we[India] became a sovereign nation. As before independence, it was at the discretion of the British rulers and before them it was at the discretion of the kings ruling India at that time. So, as of now various jurists, lawyers, administrators, social activists, law commission and legal reformers are debating over this issue again and again. The term capital punishment is derived from the Latin word ‘Capitalis’ means ‘regarding the head’.
Capital punishment is a legal death penalty in India. India gives capital punishment for serious offences.1 In India Article 21 of the Indian Constitution is
“ protection of life and personal liberty”. This article says “ No person shall be deprived of his life or personal liberty except as according to procedure established by law”. As per this article the right to life is promised to every citizen by the Indian Constitution. But in various provisions of the IPC such as criminal conspiracy, murder, waging war against the government, dacoity with murder, rape etc. capital punishment is awarded.
Basically, there are two reasons that why a person is punished for the wrong being committed by him/her;
1 25 Majumder, Sanjay. “India and the death penalty.” BBC News 4 August 2005.
Firstly, the wrongdoer must suffer for the wrong which he has committed.
Secondly, the punishment to the wrongdoer will set an example for others that others will not commit the same wrongful act in future for which the former is being punished.
In India , the doctrine or the principle of the rarest of rare cases is followed while granting death penalty to anyone. It was originated in the case of BACHAN SINGH V. STATE OF PUNJAB.
Thereafter, in the case of MACCHI SINGH AND OTHERS V. STATE OF PUNJAB, a three judge bench followed the decision of the Bachan Singh case and held that the capital punishment shall only be awarded when the community as a whole expect from the holders of the judicial office that in this case capital punishment should be awarded.
Crimes Punishable By Capital Punishment In India:
As per the Criminal Law(Amendment) Act,2013, if any rapist during the course of the crime causes the death of the victim or causes the victim to be left in a “persistent vegetative state” shall be punished by capital punishment.
After the Nirbhaya gang rape case of 2012, others gang rape cases were also held to be punishable by capital punishment under Section 9 of the Criminal Law(Amendment) Act, 2013.
Also, after the rape of a 8 years old Kashmiri Girl i.e. Asifa Bano, the Criminal Law (Amendment) Ordinance,2018 was amended which said that the capital punishment may be imposed for the rape of girls under 12 years of age, and the minimum punishment is 20 years in prison, along with the fine.
Murder is punishable offence under the IPC Section 302. There are some exceptional cases when the murder is committed such that in such a brutal and aggravated form that the capital punishment should be awarded to the culprits, only then the conscience of the community as a whole will feel relieved, following are some of the examples/situation under which death penalty should be awarded when a murder is committed:
Under section 396 of the IPC, death punishment can be awarded to whole group/gang even if one of the members of the gang commits a murder while in the process of the robbery.
Under section 363A of the IPC, if a person gets kidnapped for ransom and the kidnapped person gets killed than death penalty can be awarded.
Under section 6 of the UAPA,2004, if any of the members of an association which uses guns and ammunition which results in the death of a person than that person/member will be awarded death penalty.
As per the state laws, if any person who is being engaged in any kind of the organized crime activities which lead to the death of a person shall be punished with death penalty.
As per Article 4(1) of The Commission of Sati(Prevention Act), thee act of committing or assisting someone in committing Sati is an act which is also punishable by death itself.
If any act which is unlawful and related to terrorism or if by an explosive substance is used which endangers the lives of the people and damages the property, than that act will be punishable by death penalty, under Section 3(b) of the Explosive Substances Act,2001.
Under Sections 121 and 136 of the IPC, the act of waging or attempting to wage war against the Government and assisting officers, soldiers, or members of the Navy, Army or Air Forces in committing mutiny are punishable with capital punishment.
The Doctrine of ‘Rarest of Rare cases’
In the case of BACHAN SINGH V. STATE OF PUNJAB, the Supreme Court said that “Death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability of otherwise of retaining death penalty”.
The rule of law applied by the Supreme Court here in the case of Bachan Singh is that if it is highly impossible or that life imprisonment as an alternative for the capital punishment is not appropriate for the case under discussion before the court of law, only than the capital punishment can be awarded. Therefore, if in any case, there is possibility that life imprisonment instead of capital punishment will work for the wrongdoer to make him suffer for his sinful act, than he should not be awarded capital punishment.
Further, in the case of SANTOSH KUMAR BARIYAR V. STATE OF
MAHARASHTRA, the Supreme Court explained that,” the rarest of rare dictum will only serves as guidelines in enforcing the provisions of the section 354(3) of CrPC and entrenches the policy that life imprisonment is a rule and the death penalty is an exception.”
In the case of MUKESH & ANR V. STATE FOR NCT OF DELHI6, popularly known as Nirbhaya case , as per the Supreme Court this case falls under the category of the rarest of the rare case and hence the Supreme Court here in this case unanimously sentenced all the four accused to death penalty. The Nirbhaya case constitutes a crime which fits into the category of the ‘rarest of the rare’ cases because it violated collective conscience. The death penalty, as an exceptional punishment, follows from the judgment that the case fit the criteria of the ‘rarest of the rare’.
Ideally an exception should be unknown until it occurs: it is exceptional because it is not documented under the rule. Conversely, once an exception has been codified through law, it loses its exceptional character. Hence ideally, there can be no pre-existing category of the ‘rarest of the rare’.
Law Commission Report of 2015
India’s Law Commission in its 262nd Report(August 2015) recommended that the capital punishment should be abolished for all the crimes except for the crimes related to terrorism to safeguard the interest of the Nation’s Security.7
The law commission in its previous review in the year 1967 , the commission concluded that India couldn’t risk the ‘experiment of the abolition of the capital punishment’. But in 2015, the commission stated that ‘the commission feels that the time has come for India to move towards the abolishment of the death penalty’.
Despite the fact that, in India, the capital punishment is rarely awarded and if awarded it is rarely executed, but still the commission suggested that the capital punishment in India should be abolished. The commission citied the following reasons:-
Rate of Execution
In India, the concept of death penalty is present. But, there were only 11 executions done from year 1998-2021. Between 2004-2013, there were a total of 1303 capital punishment verdicts but still only 3 convicts were executed between this period .
In the last 20 years, a total of 3751 death sentences were commuted to life imprisonment. In July,2007 Yakub and 11 others were convicted with death sentence by special court for planning and carrying out the 1993 bombing in Mumbai which killed nearly 260 people and injured several others.
Also, in 2013 the Supreme Court upheld Memon’s death sentence, while commuting the death sentence of 10 others to life imprisonment while one died later.
Also, in 2017, the Supreme Court upheld the death sentence of the four convicts and all the four were hung till death in 2020, after all their legal options were exhausted.
In the past 15 years only 7 have been hung till death:
Delay In Execution
The delay in the execution of the convicts of capital punishment, we can say, can be considered for reducing the capital punishment to the life imprisonment as there is a lot mental agony inflicted in the minds of the accused during the time period.
As per the latest report, the delay in the execution of the capital punishment makes the death penalty ineffective and moreover increases the torture inflicted on the convict and his family.
According to the Law Commission of India report of 2015, death row prisoners still continue to face long delays in trials, appeals and thereafter in executive clemency.
Commutation of Capital Punishment
The President of India and the Governor of all the states, both, are empowered, under the Indian Constitution, that they can under Article 72 and 161 respectively, to award pardons, reprieves, respites or remissions of penalty or to suspend, remit or commute the sentence of any person convicted of any offence.
They can do so:
In all the cases where death sentence is awarded by the Court Martial.
In all the cases where the decree is the verdict of the fatality.
In all the cases, where the punishment or sentence is awarded for any offence relating to a matter to which the executive power of the state/union extends.
Procedure Of Execution
There are basically two procedure prevalent in India:
Hanging: Hanging is the system or the method of the execution of the death penalty in the civilian court of system under the Indian Criminal Procedure Code.
Shooting: Under the Army Act,1950 hanging as well as shooting are both listed as the methods of the execution of death row convicts in the military court martial system.
“ Life is precious and death is irrevocable”
When the life is given by God than how can it be taken by the act of the human beings in the name of law and justice and also when right to life is a basic fundamental rights under Article 21 of the Indian Constitution and moreover it is a human right also under the UNO. Therefore, killing a person is immoral and it clearly demonstrates the lack of respect towards the human life.
Although, some believe that those who are in the support of the abolishment of the capital punishment are in the favor of the criminals. But, its not like this but the fact is that if we end the life of the criminals than there will be no chance of improvement. This is the only reason that why the democracies around the world are supporting the reformative theory of the punishment and abolishing the deterrent theory of punishment.
Who are we to decide that weather to end the life of someone by the system of law which is again made by ourselves and none else, but the creator of life is someone else who we all know as God.
The concept of capital punishment is one which we can say is ancient and barbaric and instead it should be abolished as life is precious as its given by god and the death is irrevocable which if once given by the conduct of the humans than its both we can say a sinful act and again its irrevocable one also as mentioned earlier.
The reformative theory has an advantage over the barbaric deterrent theory as the former gives a chance to the criminals so that they can improve themselves and come back again on the track of the society but the later is the one which rather takes away the life, therefore, again and again democracies all over the world are focusing on the reformative theory of the punishment while many of the democracies have already done with the concept of the deterrent theory of the punishment and have abolished the capital punishment.
By Nirbhay ,2nd year student at UILS, Panjab University, Chandigarh Pursuing B.Com,LL.B.