Whether Death Sentence is Violative of Article 21?

Introduction

The death penalty also known as capital punishment is a practice in which a person is put to death by the state as a punishment for a crime. The death penalty or capital punishment is awarded for the offense like murder, rape, terrorism, child sexual abuse, sedition, etc.

The history of the death penalty can be traced back to the time of the beginning of the civilization on the planet earth. All the societies observed this method of giving punishment in one way or another. In fact, in earlier times this was considered the only way to deter criminals from committing any crime. This death penalty was awarded in the form of public execution, keelhauling, slow slicing, etc.

This capital punishment is a matter of active controversy all over the world as it is felt that it violates the fundamental right of right to life. According to various sources, fifty-eight countries including India have the provision of the death penalty whereas 106 countries have completely abolished it and around 28 countries are in the practice of abolishing it. The countries retaining the death penalty are doing so to punish the crimes against humanity like genocide.

What is the Death Penalty?

In simple words, the death penalty also known as capital punishment is a practice in which a person is put to death by the state as a punishment for a crime. Capital punishment is a matter of active controversy all over the world. According to various sources, fifty-eight countries including India have the provision of the death penalty whereas 106 countries have completely abolished it and around 28 countries are in the practice of abolishing it. The simple reason behind the debate of abolishing it or not is its irreversible nature. The person once executed cannot be brought back to life. So if by any chance an error has occurred in conviction then this error cannot be rectified later.

Mahatma Gandhi once quoted-

“an eye for an eye will make everyone blind.”

So the debate arises this capital punishment should be abolished or not? Is it fulfilling the desired goal or not. ?

Capital Punishment /Death Penalty in India

Capital punishment has been the part of the Indian penal code 1860 since 1898. India is among the only 58 countries in the world which haven’t abolished the death penalty. Hanging and shooting are the two methods used in or country to award death sentence. Hanging is awarded by the civilian court whereas military courts use shooting and hanging both as official methods of a death sentence.  In India, the death sentence is awarded only in “rarest of the rare cases.” This was decided in the case of Bachan Singh vs state of Punjab.

Bachan Singh vs State of Punjab:

Facts of the case:

1. The appellant Bachan Singh was convicted for the murders of three of his relatives and was sentenced to death under section 302, Indian penal code by the high court.
2. The appellant filed a special leave petition in the Supreme Court to raise the consideration before the court that whether the facts of his case were counted in special reasons for awarding him the death sentence as required in section 354(3) crpc, 1973.
3. In this case, the question before the court was whether the death penalty was unconstitutional?

Held

In this case, the court held that the death penalty must be awarded only in “rarest of the rare cases”. The bench of judges in this case was of two views. The majority were of the view that the death sentence in the cases of under section 302 IPC is must be valid.

But this punishment which was to be awarded in only rarest of the rare cases slowly increased its no and in 2018 it broke the record of the past 20 years as 162 people(approx) were awarded death sentence.

Whether Death Sentence is Violate of Article 21?

Article 21: protection of life and personal – no person shall be deprived of his life or personal liberty except according to procedure establish by law.

This article of our constitution guarantees to every citizen of India the right to life.

In the case of “Menka Gandhi vs Union of India” asserted that any procedure that is established under this Article (Article21) needs to be fair and reasonable. This was the basis of declaring the death penalty as constitutional in 1980 in the case of “Bachan Singh vs state of Punjab” (discussed earlier).

This was after this case that article 21 was updated, now reading:

“A person may be deprived of his life or personal liberty in accordance procedure established by valid law”.

It was therefore established that state for its punitive purpose can make a person or individual deprived of his personal liberty or even life. Here the contention arises that the procedure depriving the individual of his right to life or liberty must be reasonable and fair. Although what procedures will be considered as fair and reasonable is nowhere provided. So we can say that a convicted person’s life remains in the hands of the court. This lack of an established framework structure proves that the procedure of law is not fair or just.

This is a clear violation of article 21.

This article is authored by Akshita Pandey, Second-Year, B.A. LL.B, student of MAHARAJA AGRASEN INSTITUTE OF MANAGEMENT STUDIES

Also Read – What is Death Warrant? When It is Issued?