INTRODUCTION
Since ancient times it’s been trend that whenever a person does something wrong he must be punished. The purpose behind this punishment is twofold, firstly the person must be punished for the wrong he did, secondly delivering punishment sets an example for others which discourages them from doing wrong.
In India, it is a major point of discussion among activists, politicians, philosophers, etc. Because of its irrevocable nature, it is always open for debates on its fairness and appropriateness. On the one hand, the Indian constitution has an objective to preserve the human rights of every person, it ensures every person’s right to life under article 21, on other hand, India is stringent about upholding capital punishment. But it went through a lot of change, in ancient times the death penalty was given through means like cruxifixion, drowning, beating to death, burning alive. These brutal punishments are no more given, the death penalty is given in very exceptional cases.
WHAT IS CAPITAL PUNISHMENT?
It is the highest degree of punishment given by the state to an individual in case of heinous crimes, but the degree of wrongdoing varies from age to age, nation to nation. it can interchangeably be called the death penalty executing a criminal who has been sentenced to death.
The Indian Penal Code, 1860 awards the death sentence as a punishment for various offenses. Some of these capital offenses under the IPC are punishment for criminal conspiracy (Section 120B), murder (Section 302), waging or attempting to wage war against the Government of India (Section 121), abetment of mutiny (Section 132), dacoity with murder (Section 396) and others. Apart from this, there are provisions for the death penalty in various legislations like the NDPS Act, anti-terrorism laws etc.[1]
India is one of the 78 retentionist countries which have retained the death penalty on the ground that it will be awarded only in the “rarest in the rare cases” and so far “special reasons”. Though what constitutes a rarest of the rare case or special reason has not been answered either by the legislature or by the Supreme Court.[2]
It is been in practice since time immemorial, Indian criminal system is a combination of deterrent and reformative theories of punishment. The debate about retention and abolition has not changed much over the years its taking place till date.
CURRENT STATUS IN INDIA
Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to the procedure established by law. This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life. While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court to has upheld the constitutional validity of capital punishment in “rarest of rare” cases. In Jagmohan Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar Pradesh (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.[3]
JAGMOHAN SINGH V. STATE OF UP
It is the first case in the constitutional validity of death sentence was questioned
The counsel for the appellant, in this case, put forward three arguments that invalidate section 302 of the IPC.
Firstly giving a death sentence takes away fundamental rights guaranteed Article 19 and, therefore it is unreasonable and not in the interest of the general public.
Secondly, no fixed standard is there based on which sentence can be decided, complete discretion invested in the Judges to impose the death penalty is arbitrary and violative of Article 14.
The trial under the Criminal Procedure Code is limited to the question of guilt. In the absence of any procedure established by law in the matter of sentence, the protection given by Article 21 of the Constitution was violated and hence for that reason also the sentence of death is unconstitutional.
After considering all the arguments made, the five-judge bench upheld the constitutionality of the death penalty and held that deprivation of life is constitutionally permissible if the sentence is given as per the procedure established by law and performed by due process of law.
BACCHAN SINGH V. STATE OF PUNJAB
It is the case where the term rarest of the rare case was coined for the first time
Supreme Court by a majority of 4:1 reaffirmed its earlier decision and held that the provision of the death penalty as an alternative punishment for murder u/s 302 insofar is neither unreasonable nor it is against the public interest. It violates neither the letter nor the ethos of Art 19 of the Constitution of India. It is constitutionally valid. Exercise of discretion u/s 354(3) of CRPC, 1973 should be in exceptional and grave circumstances and the imposition of death sentence should only be in rarest rare cases[4].
ARGUMENTS FOR CAPITAL PUNISHMENT
- It is best to form of punishment to deter crimes and to get a country free of crimes.
- If a criminal did a barbaric act without any sense of humanity he must not be treated with humanity. He must die every day thinking that he will be hanged one day.
- It is much more economical than other punishments, it removes people those who are a threat to society.
- If there is no scope of death sentence, there is a high chance that crimes will be repeated, specially for those criminals who cant earn bread for themselves being imprisoned will not be of much concern for them because at least they will get food there.
ARGUMENTS AGAINST CAPITAL PUNISHMENT
- Capital punishment is morally wrong, it is cruel revengeful and inhumane, it does not erase the crime but again crime repeated.
- Capital punishment is irrevocable, if an innocent punishment is hanged due to minor discrepancies it will result in a greater injustice.
- The death sentence affects the family of the convict badly and eventually imposes suffering on persons who did nothing, who didn’t this suffering.
- Sometimes accused doesn’t have sufficient financial means to defend themselves, and eventually suffer without having the opportunity to defend themselves.
- An Eye for an eye will make the world blind- Mahatma Gandhi.
- Indian judiciary is not free from corruption and muscle power if this is not eliminated it would cause an impact on the conviction of the accused.
CRITICAL ANALYSIS
The debate will go on, its a never-ending debate, if a person suffered due to the act of criminal he will always have a view to retaining the death sentence. And on the other hand, who have not suffered will suggest abolishing capital punishment as being immoral and inhuman.
Internationally countries are abolishing the death sentence but India is standing firm on its stance. It has the ‘rarest of rare’ case principle for awarding capital punishment, which is necessary for India because India is different from other countries in many aspects.
India needs to have a concept of rarest of rare. There are some exceptionally unwanted criminals who don’t want to live in this society. For example recently on supreme court judgment the death penalty executed in nirbhaya case and the 4 culprits hanged till death. Mohd. Ajmal Kasab and Mohd. Were hanged for a terror attack. The decision of the death penalty recently in nirbhaya case reignited the debate on the death penalty.
[1] https://www.lawctopus.com/academike/death-penalty-an-overview-of-indian-cases/
[2] https://madhavuniversity.edu.in/constitutional-validity-of-capital-punishment.html#:~:text=Constitutional%20Validity%20of%20Capital%20Punishment,action%20lead%20to%20bad%20consequence.&text=They%20believe%20that%20the%20death,victim%20of%20a% 20heinous%20crime.
[3] http://164.100.47.193/Refinput/New_Reference_Notes/English/CAPITAL_PUNISHMENT_IN_INDIA.pdf
[4] [4] https://www.juscholars.com/post/case-brief-bachan-singh-v-state-of-punjab
This Article is Authored by Eshita Mishra, 4th Year BA.LLB Student At Amity law school Delhi (GGSIPU).
Also Read – Capital Punishment – An International Perspective
