Abstract
The death penalty is considered as a severe form of punishment. Hence it has remained a controversial topic throughout history with varying opinions among the masses. One opinion supports the punishment stating that severe crime requires severe punishment while as the dissenting opinion declares the punishment as unconstitutional saying that reformation is a better option.
Keywords: rare cases, deterrence, heinous, unconstitutional, unethical, offender, punishment
Introduction
The death penalty has been a subject of debate for numerous decades. It has been practised since ancient times in India and worldwide. It is mainly awarded in the most heinous offences only. The main objective of punishment is to penalise the wrongdoer for his crimes and prevent further crimes in society. The various punishments awarded may be in accordance with various theories of criminology and their desired effects. For example, if we refer to the Deterrence Theory for punishing a wrongdoer, then a severe punishment would be inflicted on the wrongdoer so that deterrence is created in the society and the fear of punishment resides within the minds of criminals before indulging in unlawful activities. Similarly, if punishment is inflicted upon the wrongdoer in terms of the Retributive Theory, which believes in the concept of an eye for an eye, the degree of punishment would be the same as the degree of damage done. The object of punishment under this theory is to make the criminal suffer for his crimes.
The death penalty is also referred to as capital punishment. It means punishment by death. It is the process by which a criminal is sentenced to death by a court of law for his crimes. As earlier stated, it is awarded only in very serious cases. The offences wherein capital punishment or the death penalty is awarded are termed capital offences. These are categorised as heinous crimes, and after considering various factors, the court may award the death penalty to the accused. The death penalty is considered a very severe form of punishment, and most countries worldwide have moved away from it as a form of punishment, considering its seriousness. However, India is one of the retentionist countries where the death penalty is still awarded in serious cases considering the high crime rate. The constitutional validity of capital punishment has often been challenged, stating that it violates fundamental rights. However, considering that it is still in practice, it is evident that it is needed in the criminal justice system to create deterrence in society. However, the masses who are against the death penalty as a form of punishment believe that the main role of any justice system should be to reduce crime, try to prevent it, and reform the criminals as they are a part of society too. Other forms of punishment, such as community service or even imprisonment in serious cases, can effectively reform the offenders and reduce the crime rate in society. The challengers of the death penalty believe that this form of punishment has been ineffective in deterring crime. Moreover, in case of a wrongful conviction, an innocent person may lose his life, but if an alternative form of punishment were awarded in the first place, the life of an innocent person would not go in vain. By giving them a chance to the criminals, they will realise their criminal incidents, and by staying in jail, they can repent of their criminal incidents.[1] Thus the constitutional validity of the death penalty is still debatable, and many jurists and legal experts are trying to clarify the subject from their own perspectives. This paper will focus on both sides of the coin and mainly analyse the theoretical concept behind the death penalty and its status in India over the years.
Research Methodology
In terms of its nature, this research paper is mainly theoretical and descriptive. It is qualitative in nature. The research has been conducted mainly through secondary sources. This research mainly contains descriptive information of the author’s own understanding obtained through research using the secondary sources already available. Many journals and web articles have been used in the research. The author has also briefly used primary sources, such as certain provisions and statutes, to better understand the topic’s important aspects.
Literature Review
It is now an established fact that the concept of the death penalty or capital punishment is a never-ending debate in India and all over the world. Some believe that the death penalty must be utilised in order to create deterrence in society. In contrast, some believe it is unethical and that some lower punishment should be inflicted. To understand and debate this topic properly one needs to conduct extensive research
The Indian Penal Code[2] is the primary source which specifies the various offences where in capital punishment can be awarded. Various offences are given which may attract capital punishment.
Section 354(3) of the Code of Criminal Procedure[3] provides that where ever a court award capital punishment alternatively to life imprisonment, it should record special reasons for doing so.
The case of Bachan Singh v. State of Punjab[4]is the landmark case wherein the doctrine of rarest of rare cases was established and paved the way for declaring that in which cases capital punishment should be considered as an option.
The Supreme Court of India in various other cases has given various judgements wherein the constitutional validity of the death penalty was upheld various times and it was said that it should be used in special cases only.
The article Death Penalty in India: An Ethical Analysis[5] discusses the moral validity of the death penalty and elaborates the various points as to why death penalty should be abolished.
An article named Death Penalty in India: A Critical Study,[6] talks about the history of cases wherein the debate of death penalty is studied with a historical overview.
There are various journals available on the subject, however, mostly they tend to focus on the statistical data rather than analysing the historical background of the subject and various possible issues that would be helpful in determining the morality and validity of the debate.
Death Penalty and Theories of Punishment
When a person commits a crime, he is punished or, we can say, penalised for it. Depending upon his crime, he may be fined, imprisoned, or even sentenced to death. Thus, a person is punished in accordance with the crime he committed. The study of crime and criminals is called criminology. Criminology tries to study criminal behaviour and the reasons behind it. It also tries to find ways to reduce or prevent crime. On the other hand, the field of law which deals with punishment and the prison system is called penology. Therefore, if we talk about the death penalty as a form of punishment, it would be covered under penology. There are certain theories in penology which deal with punishment. These theories are discussed below.
- Retributive theory.
This theory traces back its origin to the ancient city of Babylon, where it was included in the code of Hammurabi and was known as lex talionis, which means ‘law of retaliation’. It is commonly known as an eye for an eye, which means the degree of punishment inflicted on the accused will equal the degree of damage caused by him. Therefore, if he took a life, he would be subjected to the death penalty, and his life would be taken in return. Punishment under this theory may be considered as a payback for the crimes that a person has committed.[7] Therefore, the punishment for murder would be the death penalty in all cases.
- Deterrence Theory.
As the name suggests, this theory intends, by way of punishment to create deterrence in society and criminals. Under this theory, severe punishment should be inflicted on the offender, including the death penalty, in order to create deterrence. The object of punishment, as per this theory, is to prevent the commission of the crime. Therefore, if a severe punishment like the death penalty is imposed, criminals in society would abstain from committing further crimes due to the fear of punishment. However, people who are against this type of punishment believe that this theory is ineffective in practice and that the object of deterrence could be achieved by way of mere imprisonment as well.
The words of Mahatma Gandhi. “Hate the sin, not the sinner” are in full support of the masses who are against the death penalty as a form of punishment. If a person kills another individual, he becomes a murderer, but when the law sentences such a person to death, what does it make the law? This is a widely debatable fact between the two groups. People against the death penalty suggest other theories of punishment, like the reformative and rehabilitative theories, which mainly focus on preventing crime and rehabilitating criminals into society. Such contrasting opinions led to the concept of the rarest of rare cases.
Rarest of the Rare Cases
The doctrine of rarest of the rare cases was established in Bachan Singh v. State of Punjab[8], in which the constitutionality of the death sentence for murder under section 302 of the Indian Penal Code[9] was challenged along with the constitutionality of section 354(3) of the Code of Criminal Procedure[10] stating that these violated the fundamental rights of an individual. Section 302 of the IPC provides punishment for murder in the form of a death sentence or life imprisonment with a fine, and section 354 of the CrPC provides that where an offence is punishable with a death sentence or life imprisonment, then the court must record reasons for the sentence it awards to the accused. And in the present case, the accused was sentenced to the death penalty. The Supreme Court dismissed the appeal of the accused stating that both section 302 of IPC and section 354(3) are not violative of fundamental rights. The courts are provided with discretion under section 354(3) of the CrPC to sentence any offender to death, and it must be done only in the rarest of rare or exceptional cases. As a matter of fact, life imprisonment is a general rule. However, the death penalty is an exception. Therefore, while awarding the same, the court should properly consider the facts of the case and record the reasons for the same if it believes the case to be among the category of rarest of the rare.
The death penalty is awarded for heinous crimes. Many such crimes listed in the IPC may render an offender liable for the death penalty depending on the manner and gruesomeness with which the crime is committed.
- Section 120B IPC: This section provides that the death penalty may be awarded to those offenders who conspire in committing such a crime, the punishment for which is death.[11]
- Section 121 IPC: This section provides that whosoever may be involved in waging of war or abetment of waging of war against the Government of India may be awarded capital punishment.[12] This offence is very serious and will likely attract the death penalty as it jeopardises state sovereignty.
- Section 132 IPC: The abetment of mutiny by any soldier of the army, navy or air force is also likely to attract capital punishment if mutiny takes place because of that abetment.[13]
- Section 194 IPC: Any person who fabricates false evidence against a person for the commission of an offence punishable with death. If that person is convicted and executed because of such false evidence, the person responsible for his wrongful conviction may be punished with capital punishment.[14]
- Section 302 IPC: This section provides punishment for murder. Whosoever commits murder may be sentenced to death.[15]
- Section 303 IPC: This section provides that if a life convict commits murder, he will be punished with death.[16]
These are some offences under which the death penalty may be awarded as per IPC, and many more such offences attract capital punishment, like assisting the suicide of a minor under section 305 IPC,[17] kidnapping for ransom under section 364A IPC,[18] section 31A of NDPS Act which provides for repeated conviction in drug trafficking,[19] section 376AB of IPC which provides for capital punishment for the heinous crime of rape or gangrape of a girl less than 12 years of age,[20] section 376A of IPC which provides death penalty for rape of a girl which renders her in a bad state and for a repeat offender,[21] commission of murder while committing the offence of dacoity under section 396 IPC is also punishable with death.[22]
Methods of Execution in India
In India, the execution of death convicts is carried out by two methods:
- Hanging till death: This form of execution has been practised earlier in Europe and is also prevalent in India. In this mode of execution, the convict is either made to hang from the gallows till he dies of asphyxia (loss of oxygen) or is made to stand on a trapdoor with a rope around his neck until the trap is released and he falls in such a way that the rope stops him and the jerk breaks his neck.[23]
- Shooting: This method of execution is provided for the armed forces and is at the courts’ discretion by way of court martial to impose the method for execution.
In general it can be said that the most common form of execution in India is hanging till death.
Capital Punishment and Human Rights
Article 21 of the Indian constitution provides for an individual’s right to life and personal liberty, except for the procedure provided by law. [24] It is a fundamental right which should be available to every individual. The courts and parliament must ensure that a person’s fundamental rights are not infringed in any case. In the case of Maneka Gandhi V. Union of India, [25]the Apex Court has held that the right to personal liberty is not limited to mere protection from physical constraint but the right to privacy and the right to live with human dignity. The abolitionists who are against the death penalty believe that it violates Article 21 of the Indian constitution, as killing someone for killing another person is unethical and goes against the very concept of morality. They contend that the death penalty is a cruel and inhumane form of punishment and degrades human dignity. Article 6 of the International Covenant on Civil and Political Rights also protects the right to life of an individual.[26] Also, Article 7 of the convention protects any person from being subjected to cruelty or degrading punishment.[27] It raises a question on the validity and morality of capital punishment. As per Death Penalty Information Center, around 144 countries have abolished the death penalty citing concerns over its effectiveness in the deterrence of crime. That is almost two thirds of the world’s countries. India is among the retentionist countries where capital punishment is still awarded in very serious offences.
Landmark Indian Cases on Death Penalty
Bachan Singh v. State of Punjab[28]
This was the landmark case by virtue of which doctrine of the ‘rarest of rare cases’ as established. In this case Bachan Singh was accused of murder of three people and was convicted by the trial court and sentenced to death. He appealed to the Punjab and Haryana High Court, however hie appeal was dismissed. He appealed to the Supreme Court where the question of the constitutional validity of the death penalty arose. The bench hearing the case upheld the constitutional validity of the death penalty by the ratio of 4:1. However it was stated that such punishment should be awarded only in the ‘rarest of rare’ cases. Bachan Singh’s case was not considered of such sort and his sentence was commuted to life imprisonment. However, an important doctrine was laid out and majority of the judges believed that death penalty should be upheld in the cases of extreme nature while as the dissenting judge was of the opinion that capital punishment is undesirable and life imprisonment should be preferred instead.
Mithu v. State of Punjab[29]
This was again an important case wherein the constitutionality of the death penalty was challenged along with the constitutionality of section 303. In this case the Supreme Court held that the death penalty could only be imposed as per the procedure by law and hence, it cannot be mandatorily awarded under section 303 of IPC. It also stressed on the right to live with human dignity and held all the sentences under section 303 to be unconstitutional and void.
Macchi Singh v. State of Punjab[30]
It again was a landmark case in which guidelines were laid down for categorizing as to which cases are the ‘rarest of rare cases.’ Following guidelines were laid down:
- Manner of commission of murder: When the murder is committed in an extremely severe and a brutal way.
- Motive behind the commission of the murder: It needs to be considered whether inhumanity or cruelty is the reason behind murder
- Social nature of the crime: If the crime is committed because of hatred towards a sect of society.
- Magnitude of crime: The amount of damage done due to the crime also needs to be considered
- Personality of the victim: The condition of personality of the victim should also be considered.
Vinay Sharma v. Union of India[31]
This case is more commonly known as Nirbhaya Gangrape Case. Vinay Sharma was one of the accused involved in the gangrape and murder along with five other accused. He was sentenced to death long with other three accused as one was a juvenile and another one committed suicide in jail. The accused had filed a mercy petition before the President, which was rejected. The rejection of the mercy petition was held to be valid in accordance with law considering the brutality of the offence committed.
Manoj and Others v. State of Madhya Pradesh[32]
In this case the Supreme Court commuted the death sentence of all the three accused stating that the accused have had a record of overall good conduct in the prison and such behaviour shows inclination to reform. It was also said that all the necessary information regarding the accused should be furnished by the trial court at the trial stage before the declaration of capital punishment.
Suggestions and Conclusion
The debate on death penalty in India is a never ending one. In order to understand the complexities of this topic properly one should be mindful of many factors.
- The criminal justice system needs to work more effectively in determining the factor of ‘rarest of rare cases.
- Alternative forms of punishment should be considered and the effects of both the forms of punishment should be considered and statistics of various countries employing each of the forms should be studied.
- Prevention of crime should be considered priority rather than punishing the criminals.
In the end it can be said that the debate is never ending in nature and the continuous and modern developments in the criminal justice system may bring out some possible methods in the future wherein it would be possible to reduce or rather eradicate crime rather than turning to severe forms of punishment like the death penalty.
Ahmad Basaud
Central University of Kashmir
[1] Ms. Ravi, Death Penalty in India: A Critical Study, 10 International Journal of Creative Research Thoughts 797, 798 (2022)
[2] Indian Penal Code (1860)
[3] Code of Criminal Procedure (1973)
[4] Bachan Singh v. State of Punjab, (1980) 2 SCC 684
[5] Reema Jain, Capital Punishment in India: An Ethical Analysis, 1 Symbiosis Law School Multidisciplinary Law Review 26 (2021)
[6] Supra note 1
[7] Ishaan Tyagi, Capital Punishment: A Critical Study, 6 International Journal of Legal Developments and Allied Issues 143, 145 (2020)
[8] Supra note 4
[9] Supra note 2, Section 302
[10] Supra note 3, Section 354(3)
[11] Supra note 2, section 120B
[12] Ibid, section 121
[13] Ibid, section 132
[14] Ibid, section 194
[15] Ibid, section 302
[16] Ibid, section 303
[17] Ibid, section 305
[18] Ibid, section 364A
[19] Section 31A, NDPS Act (1985)
[20] Supra note 4, section 376AB
[21] Ibid, section 376
[22] Ibid, section 396
[23] Capital Punishment in India, Wikipedia (February 05, 2023, 6:45 PM), https://en.wikipedia.org/wiki/Capital_punishment_in_India. (Last accessed on 10 April at 10 p.m.)
[24] Article 21, Constitution of India (1950)
[25] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
[26] Article 6, International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171
[27] Ibid, Article 7
[28] Supra note 4
[29] Mithu v. State of Punjab, AIR 1983 SC 473
[30] Macchi Singh v. State of Punjab, AIR 1983 SC 957
[31] Vinay Sharma v. Union of India, AIR 2020 SC 1451
[32] Manoj and Others v. State of Madhya Pradesh, 2022 LiveLaw (SC) 510