Death penalty, an inhumane and cruel act which is performed by some of the countries as a sign of punishment of some aggravated crimes. Some of these countries are India, China, Afghanistan, U.S.A, Indonesia, Pakistan, Nigeria, Bangladesh, Egypt and almost all other Islamic countries. It is not only practiced today but also from an era long back.
In the primitive society, death by violence was one of the most preferred forms of vengeance, retribution and deterrence. Death penalty is the harshest punishment in the criminal justice system. At that time also, the risk of penalty was the cost of crime which the offender expects. When the cost (sufferings) is higher than the benefit which the crime is expected to yield, it will deter a considerable number of people from committing the crime. This is also holds true in respect of offences that are punishable with death. Therefore one can say that death penalty is reasonable only in extreme cases in which a high degree of culpability is involved causing grave danger to the society. In the primitive society, the feeling of retaliation was high and the criminal justice system was governed by the principle of retribution based on the concept of “an eye for an eye” which was considered appropriate. But as the society developed, the need for a common guardian to protect the rights of the people was felt. And so people surrendered their rights to the state and in return they used to protect them. Death Penalty for heinous offences like murder, dacoity with murder, terrorism etc. may be said to have come into existence with the modern state and its mounting recognition of the responsibility to uphold peace and order in the society at any cost. In India, it was all divided in phases:
Phase I – (1950-55) Rule of Death penalty
Under the Code of Criminal Procedure, 1898 death sentence was considered to be the rule and life imprisonment was an exception in capital offences. Thus, in Kirpal & others Vs. State of U.P , the Supreme Court held, if in case it is found that the act of offender is brutal and having a deliberate intention to kill some like in this case, death sentence will be awarded.
Phase II – Judicial Discretion (1955-73)
Later on, an amendment in the year of 1955 section 367(5) of the Cr.P Code, 1898 was omitted and thereafter the courts became free to award either death sentence or life imprisonment. In Jaghir Singh Vs. State of Punjab where a person is murdered in a cruel fashion and his head was chopped off. The Supreme Court deprecated such a dastardly act and held: “The murder was ruthless and cold-blooded. There are no brutal circumstances and the Supreme Court found it just and proper to inflict death penalty.
Again Hazara Singh vs. State of Punjab, where there was no pre-medication and parties met accidently and resulted in conflict and quarrel, the Supreme Court set aside the death penalty and awarded each one of them imprisonment of 10 years.
Phase III – Substitute of Death Sentence: Life Imprisonment (1973-80)
Now the CrPC 1973 provides in its Section 354 (3) that in case of death sentence special reasons are to be stated. Now imprisonment for life was the rule and capital sentence was an exception, In Asgar vs. State of U.P, On appeal Supreme Court held: “The High Court while confirming the death sentence does not seem to have clearly kept in view the change of law which was brought about by the 1955 amendment of the old code, when the High Court held death penalty for accused and thus, S.C awarded life imprisonment to the accused.
Phase IV: Doctrine “Rarest of Rare Case” (1980-83)
Now from here, a death sentence becomes an exception. In, Bachan Singh vs. State of Punjab the question of the compatibility of the death sentence with Art. 21 of the Constitution was raised. The Supreme Court while holding the validity of the death penalty expressed the opinion that protection of human life postulates resistance for his life and it should be kept aside for “Rarest of the rarest case”.
It was, however, in Machchi Singh vs. State of Punjab, where four men were awarded death sentence by the sessions court and the High Court for shooting down seventeen persons within their homes, the death sentence awarded to the 3 were upheld.
Offences punishable with Death under Indian Laws
The total number of offences that are punishable by death in India can be found both in central as well as state legislations, 59 sections in central legislations containing both 13 homicidal and 41 non-homicidal offences which carries death penalty. The Indian Penal Code 1860 prescribes death penalty for 11 types of offences whereas the remaining are dealt with under special legislations like Defense of India Act 1971, Unlawful Activities (Prevention) Act 1967, Air Force Act 1950, Army Act 1950, Navy Act 1957, Narcotic Drugs and Psychotropic Substance Act 1985, The Assam Rifles Act, 2006, The Indo Tibetan Border Police Force Act, 1992 and so on.
REASONS FOR ABOLISHING DEATH SENTENCE
- Capital Punishment as a deterrence: Advocates usually states that it act as deter. But actually it lacks in detering crimes. It is just a punishment not a tool to stop crime.
- There is a chance of inevitability of either legal, moral or factual errors which may result in the killing of any innocent.
- Nowadays public is not in the support of death penalty but still if anyone supports, the leaders should come up as it is an inhumane act.
- There is always a risk that any innocent person get executed which is not irreversible as life imprisonment.
- Death penalty is against the most basic right which is Right to live under Article 21. Authority is obligated to protect individuals and which resist them to take their lives.
Apart from awarding death penalty, there are other ways to prevent crime and authorities must support that option.
CONSTITUTIONAL VALIDITY OF DEATH SENTENCE
The constitutional validity of a death sentence was first challenged in the United States of America which took the step for the abolition of death sentence. Pennsylvania is the first state to abolish the death penalty. While in India constitutional validity of capital punishment as provided in the Indian Penal Code has been challenged in many cases and so far as the Supreme Court has always upheld that the capital punishment provided in the Indian Penal Code is constitutionally valid. However, the abolitionists have not become disheartened by various pronouncement of the Supreme Court declaring capital punishment to be constitutional.
In Jag Mohan Singh V. State of U.P, the validity of death sentence was challenged on the ground that it was violative of Articles 19 and 21. The court held that capital punishment was not violative of Articles 14, 19 and 21 and was therefore constitutionally valid. But in Rajendra Prasad V. State of U.P, it was held that capital punishment would not be justified unless it was shown that the criminal was dangerous to the society.
All the aforesaid statement clarifies that death penalty is not a solution to any crime but a crime in itself against humanity. Many countries criticize the system of death penalty as it is no way to prevent any crime. It was Ajmal Amir Kasab’s death sentence which brought this punishment into spotlight. As stated by United Nations General Assembly, there is a need for a high standard of fair trial by every country in the case of Capital punishment. It could be seen that there is a reduction in giving offenders such punishment but still a lot is needed. Yet, there is a strong need for its abolishment.
 AIR 1954 SC 706
 AIR 1968 SC 43
AIR 1957 SC 469
AIR 1977 SC 2000
AIR 1980 SC 898
 (1983) 3 SCC 470
 A.I.R.1973, S.C- 947
 A.I.R.1979, S.C- 916
This article is authored by Aanchal Sinha, Second-Year, BA.LLB (Hons.) student of The ICFAI University, Dehradun
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