Abstract
India is not an exception to the global debate over the death penalty or capital punishment. The history and present status of the death penalty in India is discussed in this paper, along with the legal foundation, moral issues, and discussion surrounding the practice. The introduction of the paper provides a brief historical background, describing the origins of the death penalty in India and how it has changed through time. India has a complicated legal system with several different options for capital punishment or the death penalty. A death sentence is an option under the Indian Criminal Code for a number of offenses, including terrorism, rape, and murder. Nonetheless, the Supreme Court of India has set forth stringent standards for applying capital punishment, including the need to only be applied in the “rarest of the rare”. This paper discusses the justification for and against the death penalty in India while assessing its moral and ethical ramifications. Various cases where capital punishment was served by the court have been analyzed in this research. It talks about death penalty affects justice, the rule of the law, and human rights. Ultimately this paper offers a thorough analysis of the death penalty in India, emphasizing its legal, moral, and ethical implications.
Keywords
Capital Punishment in India, Death Penalty, Section 354(5) CrPC, 1973, Punishment for rarest of the rarest crime, execution order, punishment for most heinous crime
Introduction
Capital punishment commonly referred to as the death penalty is a legal sentence in India. It entails a person who has been found guilty of a capital charge being put to death. It is the harshest penalty that a court of law can impose. As stated in Section 354(5) of the Criminal Code of Procedure, 1973, the principal mode of execution is “Hanging by the neck until dead” and is only granted in the “rarest of cases”. The Army Act, Navy Act, and Air Force Act allow for shooting as an alternative to hanging, which is the other means of execution permitted by Indian law. The court martial will decide whether to use hanging or gunshot as the technique. According to the Supreme Court of India, capital punishment should only be used in “the rarest of rare circumstances”, where life imprisonment would not be sufficient as a substitute. The most recent executions in India occurred in March 2020 in the Tihar Prison in Delhi, where four of the defendants in the 2012 Delhi gang rape and murder case were put to death. The usage of the death penalty in India has been a topic of debate and discussion, with some asking for its abolishment and others believing that it should be retained as an essential weapon for upholding justice and keeping law and order. Since several states have put a moratorium on the death penalty, the number of death sentences has decreased across the nation. Capital punishment is still a part of Indian law, though, and it will probably continue to be a source of discussion and controversy.
Research Methodology
For the research of this paper, secondary sources of information such as online articles, journals, and websites have been used.
Early Execution Laws
The Code of King Hammurabi of Babylon regulated the death penalty for 25 separate offenses, dating back to the Eighteenth Century B.C., making it one of the earliest established death penalty laws. The death penalty was also a feature of the Hittite Code from the 14th century B.C., which made death the only punishment for all crimes, and the Roman Law of the Twelve Tablets from the 5th century B.C. Executions of death sentences often involved crucifixion, drowning, beating to the death, burning alive, or impalement. In Britain, hanging became the preferred mode of execution by the tenth century A.D.[I]
History of Capital Punishment in India
India’s history with the death penalty goes back to a time when the idea of punishment for a crime was centred on the adage “an eye for an eye”. Banishment, fines, and incarceration were among the earliest types of punishment. The most severe punishment, however, was death, which was typically meted out to the individuals who had committed the most terrible offenses, like treason, murder, rape, etc. The death sentence was frequently applied in India while it was ruled by the British. The Indian Criminal Code established the death sentence as a punishment for crimes like murder, treason, and piracy. Several freedom fighters were put to death for their participation in anti-colonial activities by the British, who also employed the death penalty as a tactic to quell political dissent and insurrection.
There were estimated to have been between 3000 and 4000 executions between 1950 and 1980. The number of people who were sentenced to death and put to death between 1980 and the middle of the 1990s is more difficult to estimate. According to estimates, a few people are hanged each year. The Supreme Court ruled in the Bachan Singh decision of 1980 that the death penalty should only be applied in the rarest of the rare instances.[II]
Present Scenario of Capital Punishment in India
Capital punishment, or the death penalty, is still permitted in India by Law and is still used when the offense was particularly severe. The Indian Criminal Code lists the death penalty as a valid form of punishment that can be used to punish crimes like murder, terrorism, rape, and some varieties of treason.
Crimes punishable by the death penalty under the Indian Penal Code, of 1860l
- Being a participant in a felony plot to kill someone (Section 120B)
- Warring against the Indian Government, or attempting to do so or aiding in it (Section121)
- Aiding a military revolt (if one results from this) and participating in a mutiny (Section132)
- False testimony provided or created with the goal to secure a conviction for a capital offense. (Section194)
- Threatening or pressuring someone to provide false information that leads to a conviction and the execution of an innocent person (Section195A)
- Murder (Section302&303)
- Influencing or abetting a minor to commit suicide. (Section305)
- If a life-sentenced offender attempts to murder [Section307(2)]
- Kidnapping, in which the victim was detained in order to extract a ransom or for other reason (Section364A)
- Rape with injuries that result in death or render a woman permanently vegetative. (Section376A)
- Rape of a kid under the age of 12 (Section376AB)
- Gang rape of a child under the age of 12 (376DB)
- Specific rape-related recurrent offenses (Section376E)
- When 5 or more people commit dacoity and one of them also murders someone as a part of the act, the entire group is guilty of the crime (Section396)
In India, the death penalty is now less frequently used. The Supreme Court of India confirmed the constitutional legality of the death penalty in 2015, but it also emphasized the need for its prudent and deliberate application. The rising understanding of the shortcomings in the criminal justice system is one factor in the dropping rate of capital punishment in India. People have been falsely convicted in a number of cases in India, and numerous individuals and groups have warned against the likelihood of erroneous executions if the death penalty is not applied carefully. The usage of the death penalty has decreased as a result of the Indian Supreme Court’s instructions for its selective and prudent application. The dispute over the efficacy of capital punishment as a deterrent to crime, the expanding use of other kinds of punishment, and the growing knowledge of defects in the criminal justice system are all factors in the declining use of capital punishment in India.
But in recent years Trail courts in India awarding more death sentences. The number of people on death row rose by 21% in 2021, that is 404 to 488. It is also the highest level since 2004 when 563 people were facing the death penalty. 144 execution orders were handed down by the trial courts in 2021 as opposed to 77 in 2020 and 104 in 2019. In 2021, murder cases made up the largest segment that is 62 cases out of 144 while sexual assault cases made up only 48. Yet, 62 people were given capital punishment for murder in 34 cases & 48 people received execution orders for sexual assault in 45 cases. According to the statistics, 54% of all instances that culminated in the death penalty involved sexual crime. Even if the percentage of sexual violence cases has declined from that of 2019 and 2020 when it was at 61% and 59%, respectively, this shows that sexual offenses are still having a significant impact on the application of capital punishment in India. However, in a charge in the higher judiciary, in 2021, the Supreme Court of India did not order a single capital punishment for the first time in the six years since Project 39A started providing its reports. 9 accused had their punishment decided upon, 5 of them had their execution orders changed to life imprisonment and 4 had all the charges against them dismissed.[III]
Some Landmark Cases on Capital Punishment in India
Delhi Gang Rape and Murder Case (2012-2020)
The Vinay Sharma v. Union of India (2020) case, publicly known as the Nirbhaya gang rape case outraged the nation’s conscience. A 23-year-old woman was viciously abused and gang raped by six persons in a moving bus in south Delhi on the dark chilly night of December 16, 2012. She was brutally abused & rapped which was totally inhuman in nature, one of the juvenile accused inserted an iron road into the private part of her body later they threw her naked half dead in the street of the moving bus. The brutality of this incident did not only shock India, it shocked the whole world also. She died as a result of all the emotional and physical suffering. One of the accused took his life in jail at the time when the matter was presented in front of the court, another was below 18 years old as a result he got spared from capital punishment. However, the court passed an order for the death penalty to the other 4 accused & they were executed by hanging at the Tihar Jail in Delhi in 2020. After examining the aggravating and mitigating considerations, this judgment was reached. Given the essential facts surrounding the crime and brutal in-human torture of the victim, which resulted in her death, the court issued capital punishment to the 4 accused.
The Ajmal Kasab Case (2008-2012)
Md. Ajmal Md. Amir Kasab @ Abu v. State of Maharashtra (2012), also called The Ajmal Kasab case was another shocking incident to India as well as the whole world. Ajmal Kasab was a Pakistani terrorist, he & 9 other gunmen travelled from Karachi to Mumbai by boat. The terrorists split into five groups upon arriving in Mumbai on November 26, 2008, and spread terror by attacking different locations in Mumbai. Almost 166 people, including 26 foreign nationals lost their lives in this incident. 238 persons also suffered significant injuries. Also, this attack demolished properties worth millions of dollars. Among the 10 terrorists only Ajmal Kasab was captured alive, the other 9 were shot and killed during the rescue operation conducted by NSG and police.[IV] The Bombay High Court upheld Kasab’s execution order on Feb 21, 2011. On Aug 29, 2012, The Supreme Court of India upheld the decision. On November 21, 2012, Kasab was hanged and buried behind the walls of Pune’s Yerwada Central Prison.
Parliament Attack Case (2001-2013)
In State v. Mohd. Afzal And Ors case or the Parliament attack case, Afzal Guru, a Kashmiri man, was charged with planning the 2001 attack on the Indian Parliament. He was detained in December 2001 and accused of planning the attack with the five other extremists. Eight security guards and a gardener lost their lives in the attack and all five terrorists were also eliminated. The case went to trial in the special court in 2002, upon hearing the case the special court issued capital punishment to Afzal Guru and 3 other men who were also found guilty in the case. Guru’s sentencing was not carried out immediately, his case went through numerous appeals and reviews. Guru’s defence team claimed that he was not a direct participant in the attack and he was also denied a fair trial. They further asserted that he was subjected to torture while he was being held captive and his confession was coerced. In spite of various objections, The Supreme Court of India upheld Guru’s execution order in 2005. In 2011 the Indian President likewise denied his request for mercy and in Feb 2013, he was eventually hanged to death.
1993 Mumbai Blast Case
In the Yakub Abdul Razak Memon v. State of Maharashtra and Anr case, Yakub Memon, a chartered accountant of India was found guilty of taking part in the 1993 Bombay bombings, one of the deadliest terrorist assaults in Indian history. A squad of terrorists connected to the Pakistani extremist organization Lashkar-e-Taiba planned the explosion across Bombay. Memon was charged with giving the terrorists financial support, who carried out the explosions, which claimed 257 innocent lives and injured over 700 others. He was detained in 1994 and accused of a number of crimes, including murder, terrorism, and conspiracy. He was also found guilty of illegally transporting and possessing weapons and ammunition with the intent to harm his life. Memon was found guilty and given capital punishment in 2007 after a protracted trial. Yet after a series of appeals in his case, the Supreme Court of India upheld his execution order. Memon’s mercy petition was denied despite pleas for mercy from a variety of human rights organizations and public figures, including some who said that he had cooperated with authorities and provided crucial information about the bombs. He was executed by hanging in July 2015. In India, this case is still a contentious one, while some claim that Memon was unfairly singled out while others maintain that his penalty was appropriate considering the seriousness of the offenses for which he was found guilty.
Shabnam Case (2015)
In Shabnam v. Union of India, the case refers to the brutal murder of seven members of a family in the Amroha district of Uttar Pradesh in 2008. Shabnam, a teacher plotted to murder her parents, two brothers, sister-in-law, cousin, and 10-month-old nephew with the help of Salim, her lover. The family members were drugged before being strangled to death by Shabnam and Salim. After that, they dismembered the bodies and dumped them in a neighbouring field. The driving force behind such murder was Shabnam’s family’s objection to her relationship with Salim. The pair was detained shortly after the incident, and the case received extensive media coverage. They were given capital punishment by the district court in 2010. Both the High Court and the Supreme Court rejected their petitions against the death penalty. This is the first time the court issued capital punishment to a woman in the Indian criminal justice system.[V]
Arguments in favour of Capital Punishment
- Citizens’ safety and welfare: Murderers and other in-human criminals put the safety and welfare of the citizen in danger. Society can only assure that accused killers don’t kill again by giving them the death sentence.
- Good triumphs over Evil: Giving the death sentence brings a balance between good and evil in society. So society should embrace capital punishment.
- Prevention: It is often believed and justified the idea of the death penalty that putting convicted killers to death will stop other killers from killing others. Also, it brings peace to the mind of victims’ families.
- Justice to the victims and victims’ families: Justice is about making sure that everyone gets a fair judgment. It is crucial that offenders are punished as severely as the suffering endured by the innocent victims and their families. Society should not let the offender escape paying less than what the victim had paid and endured.
Arguments against Capital Penalty
- Unfair to innocent lives: The death sentence is also unjust to innocent people because it occasionally results in their execution. Sometimes individuals can be executed for a variety of reasons, like weak defense, bad finance, and belonging racial or political minority group.
- Right to life: According to the Indian Constitution Article 21 Everyone has the Right to life and it’s a fundamental right. No authority should take it away easily.
- Restoration: Some people believe everyone deserves a second chance to change their life. Death sentence doesn’t give chance to change and return to society as a changed person.
- Deterrence’s effectiveness isn’t supported by facts: Since 2013 according to Section 376A of the IPC execution has been deemed appropriate in rape cases. Despite this, rapes continue to occur, and in fact, their savagery has gotten worse. Thus capital punishment is not effective enough to prevent such incidents. [VI]
Suggestions
There are strong arguments for and against death sentences or capital sentences. The law governing the death penalty in India’s legal system must be reviewed and updated from time to time. The categories of offenses that are subject to capital punishment must be clearly defined and the rules must be applied consistently. Any person charged with capital punishment must get a fair trial and have access to legal representation, as required by Indian law. The accused must be given a chance to submit their defense and all relevant evidence must be taken into account. The people should be made aware of the effects and efficacy of capital punishment by the Government of India. People need to be made aware of the expense, the difficulties in the law, and the moral repercussions of the death sentence. Except for the death penalty, we need to consider other forms of punishment as well such as life in prison without the chance of parole. The juvenile justice system should be reviewed because people have both mental age and physical age, if someone is mentally mature before reaching physical adulthood need to be treated as an adult and punished accordingly, such as Nirbhaya Case juvenile should be treated as an adult, and punished accordingly.
New forms of punishment should be introduced as well because the death sentence is proving not enough to prevent further crimes or similar crimes. Sometimes giving death is an easy escape for some criminals, they need be realized the consequences of their crime on innocent lives through harsh punishment mentally as well as physically. Punishment should be such so it can create an example and fear in the mind of a person before committing such a heinous crime.
Conclusion
Capital punishment also called the death penalty has long been a contentious issue in India. Although an execution order is still an option for some offenses under the country’s legal system, its application has decreased a lot. Only the “rarest of rare” crimes – defined as especially severe offenses that shock the conscience of society – are subject to capital punishment in India. Even in these situations, the courts must use prudence and restraint when considering whether to execute a defendant. Although capital punishment is rarely used, many people think it is a harsh and ineffective method of punishment. They emphasize the danger of killing innocent people. According to some the unfairness of the death penalty and the likelihood of change and rehabilitation for criminals. But providing justice to the victim and their family is necessary through harsh punishment as no one can understand how the victim and their family suffer from such inhumane crimes. Ultimately the discussion around the death penalty in India is still divisive and complicated. While there are good arguments on both sides, the judicial system of the nation continues to debate whether capital punishment is a suitable form of punishment for the most heinous crime.
[I] Death penalty information center, https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty (last visited: Mar 11, 2023)
[II] Know law, https://knowlaw.in/index.php/2020/10/14/capital-punishment/ (Last visited: Mar11, 2023)
[III] Himanshi Dhawan, 2021 saw 21% jump in prisoners on death row to 488, Times of India, Jan 31, 2022, https://m.timesofindia.com/india/2021-saw-21-jump-in-prisoners-on-death-row-to-488/amp_articleshow/89230624.cms
[IV] Aarti Surkule, The Ajmal Kasab case/case analysis, The Legal Lock, 2022, https://thelegallock.com/the-ajmal-kasab-case-case-analysis?amp=1
[V] Jagriti Sanghi, Landmark cases on death penalty in India, Ipleaders, Jan 14, 2022, https://blog.ipleaders.in/landmark-cases-on-death-penalty-in-india/?amp=1
[VI] Aishwaryasandeep, https://aishwaryasandeep.com/2021/10/26/arguments-in-favour-against-capital-punishment/,( Last visited : 12 Mar, 2023)
Submitted By
Name – Avirup Mondal
College – MIES RM LAW COLLEGE