Capital Punishment, or death sentence, has always been seen as the most extreme form of punishment that should be awarded only in the rarest of rare cases. Passing a death sentence is not an easy decision; the case is subject to excessive scrutiny and the judge deciding the case is required to examine all the facts and circumstances properly before such a decision can be made. The media is also attracted towards such a case where the punishment is death sentence, and it often leads to either support or hatred from the public. As a result, capital punishment is rarely given, and when it is, it is usually a heinous crime for which it is awarded.
In India, rape cases and offences of terrorism are a prime example where it is demanded that the offender be awarded capital punishment, but even in such cases, the judiciary abstains from awarding it. Even though it may seem incorrect to award death penalty, in some cases it is necessary to do so as it serves as a prohibitive measure for future offenders.
Definition of Capital Punishment
Capital punishment is the legal procedure for putting an individual to death for a certain crime that he/she committed. It is exercised by the State, and it is not a new form of punishment. A person is awarded death penalty for an offence which he has committed under the Indian Penal Code, and the offence must also state the punishment of death. The term used for carrying out the punishment of death is known as execution. There are various forms of execution, but under Indian law, two are recognised: death by hanging and death by shooting.
Death by hanging is mentioned under Section 354(5) of the Code of Criminal Procedure, 1973. Death by shooting is mentioned under the Army Act, the Air Force Act and the Navy Act.
In Deena v. Union of India, execution by way of hanging was questioned as it was cruel and inhuman, thus infringing the Right to Life of a person, enshrined in Article 21 of the Indian Constitution. However, the court held that it was just and fair, even according to Article 21.
History of Capital Punishment in India
Capital punishment has been challenged in India time and again, both before and after independence. India went ahead with the Penal Code that the British had enacted, with some changes every now and then to suit the situation in the country, but death penalty was never abolished. Some oppositions regarding it were raised in the Constituent Assembly, and even certain case laws demanded abolishment of death penalty because of it being cruel, barbaric and inhumane, specially death by hanging. But the courts ruled in favour of capital punishment always.
The United Nations’ moratorium on death penalty was opposed by India because it curtailed the sovereign power to establish one’s own legal system. In fact, the period between 1950 to 1980 witnessed a number of executions. In 1973, the Code of Criminal Procedure was re-enacted, with a significant change been made to Section 354(3), which now mandated judges to record the special reasons for awarding death penalty to an offender. Even the Law Commission, in its 35th report, 1967, stated that capital punishment should be retained, and that some individuals are inherently ‘cruel and wicked’ and cannot be reformed.
It was only after the case of Bachan Singh v. State of Punjab that the Supreme Court held that capital punishment should be awarded only in ‘the rarest of rare cases’. It is still ambiguous as to what comes under the ambit of ‘the rarest of rare’.
Constitutional Provisions Relating to Capital Punishment in India
Article 21 of the Indian Constitution stands for the Right to Life and Liberty to everyone, as well as the right to live with dignity. However, the State can, with due process of law, take away the life of an individual. According to the Constitution, death penalty should only be awarded in the rarest of rare cases, and only on special grounds. The accused has a right to be heard and also to get qualified lawyers. Where the case involves individualistic circumstances, the punishment should also be awarded accordingly.
Articles 72 and 161 of the Constitution allow the accused to plead for commutation or forgiveness to the President of India and the Governors of the States, respectively. Even under the custody of the police, the accused has freedom of speech under Article 19. Also, the accused should not be subject to torture under Article 21, which also ensures the right to a fair and prompt trial.
Important Case Laws on Capital Punishment in India
In Rajendra Prasad v. State of Uttar Pradesh, the ambiguity regarding ‘special reasons’ for awarding death penalty was put forth. The Supreme Court cleared the confusion and stated that the social goal of capital punishment should be deterrence instead of retribution and reformation. The ‘reasons’ should focus not on the crime but on the criminal.
In Mithu v. State of Punjab, a question arose on Section 303 of the Indian Penal Code. It allows putting to death an individual who is on life imprisonment and can still commit a grave offence (murder) and since such a person is beyond reformation, the only suitable punishment would be death penalty. However, the language in which the section was drafted was very wide and thus it was held as being violative of Articles 14 and 21 of the Constitution.
In Machhi Singh v. State of Punjab, the Supreme Court endeavoured to define the phrase ‘the rarest of rare cases’ wherein it put forward two questions that needed to be answered every time a death penalty was put in a sentence: first, is the offence exceptional enough so as to award a death sentence for the same, and second, if mitigating circumstances are weighed, do they still call for capital punishment?
The Court observed that the judges need to prepare a balance sheet, which enlists the mitigating as well as the aggravating circumstances, and then analyse the case, and award punishment accordingly. It further came out with a list with five categories of cases where capital punishment would be deemed appropriate. It is as follows:
- Manner of committing the crime, which is extremely gruesome, inhumane and cruel.
- Motive of the crime, which is completely ridiculous and mean
- Nature of crime, for example dowry death, or hatred towards economically backward classes
- Degree of crime, which includes multiple murders
- Status of victim, for example minor, or a helpless woman, or an aged person
In Channulal Verma v. State of Chhattisgarh, was a recent case in which the constitutionality of capital punishment in India was challenged, again. Two judges were of the opinion that the courts are required to be constitutionally correct while pronouncing the judgement, even if it goes against the public opinion, which is usually formed on an emotional basis. This case also set an example of a situation where the death penalty was reduced to life imprisonment for the individual after considering his possibility of reform and rehabilitation through good conduct in prison.
Changing Trends of Capital Punishment
Even though the Law Commission earlier stated that capital punishment should not be abolished, in its 262nd report it stated that death penalty was unable to serve its goal of deterrence any more than imprisonment for life, and thus it be reduced to terrorism-related offences or waging of war against the State. It further went on to state that the concept of “an eye for an eye” does not hold any position in our legal system. Even when the Supreme Court stated clearly that the death penalty would be awarded only in the rarest of rare cases, there has been no decrease in the number of arbitrary awards of death sentence. The goal of punishment is retribution, which death penalty fails to achieve.
The most recent execution that took place in India was that of the four men guilty of the gang rape of a woman in Delhi in 2012, popularly known as the ‘Nirbhaya’ case. They were executed on 22nd January, 2020, despite last-minute legal appeals. Earlier, Yakub Memon, the individual responsible for the 1993 bombings in Mumbai, was executed in July, 2015. Afzal Guru, responsible for the attack on the Parliament in 2001, was executed in February, 2013. Ajmal Kasab, captured and convicted for the terrorist attacks in Mumbai in 2008, was executed in 2012.
The recent trends have pointed out that apart from the death penalty being awarded for offences of terrorism, death penalty has been awarded only in the rarest of rare case i.e. the most heinous crimes. The 2012 gang rape was shocking and gruesome on various levels, with the public demanding immediate hanging of the accused men. Thus, the phrase ‘the rarest of rare cases’ got defined in some way, incorporating some of the worst criminal acts that an individual could commit.
The National Law University, Delhi, carries out a project, Project 39A which records the number of prisoners on the line of death sentence in India. According to the project, 755 executions have taken place since independence, with the most being carried out by Uttar Pradesh. However, it cannot be said to be an accurate representation because of lack of official data and reports by the government and prison staff. Still, when it comes to the highest number of executions, India is nowhere near the top, at present.
The debate on capital punishment is a never-ending one. Even now, it is frowned upon by some but highly encouraged by some. A number of countries like Canada, Russia and Australia have completely abolished capital punishment, and the Law Commission of India too, has proposed to abolish death sentence with some exceptions. On the other hand, there comes a case every few years which calls for putting to death the accused, because of the way the crime was committed, or because of the public outcry, and it shows us as to why capital punishment should not be abolished. All in all, be it any punishment, it must fulfil one of the various goals of deterrence, retribution, reformation or prevention.
 1983 AIR 1155.
 AIR 1980 SC 898.
 Maneka Gandhi v. Union of India, 1978 AIR 597.
 The Juvenile Justice Act, 2016 (Act 2 of 2016), s. 21.
 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.
 1979 AIR 916.
 1983 AIR 473.
 1983 AIR 957.
 2018 SCC 2570.
 Supra note 2.
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