ABSTRACT-
The death penalty is a form of capital punishment, as it involves the execution of the offender. In India, a lot of controversy has been raised about the death penalty. They debate whether it prevents heinous crimes or whether it is a fundamental violation of human rights. This analysis digs into the multifaceted dimensions of capital punishment within the Indian legal framework, examining its efficacy in deterring criminal behavior and the ethical considerations surrounding its implementation.
On one hand, the death penalty is seen as a crucial step to prevent heinous crimes; on the other hand, it is viewed as a violation of fundamental human rights. Legislative attempts, such as the Indian Penal Code (Amendment) Bill 1972, show how India has been trying to find a balance between punishing criminals and being fair and humane. Notorious voices, including Jaiprakash Narain[1] and Andrei Sakharov[2], advocate for the abolishment of the death penalty as a form of punishment from the legal system.
Empirical data and judicial practice reveal a dearth of compelling evidence for the deterrent theory, thereby challenging the logic of capital punishment. Additionally, international human rights norms and national constitutional discourse indicate the potential of the death penalty abuse by the judicial institution, thereby raising the issues of fairness and sanctity of human life.
The paper critically examines the arguments of both the proponents and opponents of the death penalty and infers that India must bring its legal practices in line with its adherence to human rights and pursue other punitive tools that respect the dignity of all human beings. It reaffirms the fact that India must bring its law into alignment with its human rights values and pursue other tools of punishment that respect human dignity.
KEYWORDS-
Death Penalty, Abuse by the Judicial Institution, Human Rights, Deterrent Theory, Legal Framework, Human Dignity.
INTRODUCTION-
Capital punishment is almost as old as civilized human society and has existed for thousands of years. To illustrate, the Code of Hammurabi from Babylon used in the 18th century BC prescribed the death penalty for twenty five different offenses. Similarly, other ancient laws like the Hittite Code and the Draconian Code of Athens were also used to embrace this form of punishment for certain crimes. Further, it became part of Roman laws and was later reinforced by various religions of the world. These laws were known for being very harsh, and they were not limited to a few regions. Over time, it was recognized by several legal systems of civilized societies.
Nowadays, capital punishment, mainly the death penalty, is one of the most controversial and debatable topics in criminal justice. Many people and government authorities around the world have strong opinions on it: proponents believe it is a necessary tool to maintain law and order, while critics argue that it violates the fundamental human right to life. It remains one of the harshest forms of punishment a legal system can grant.
Historically, the legal framework in ancient India was primarily derived from Dharmashastras such as Manusmriti, which laid down various punishments, including capital punishment, or various offenses. In India, capital punishment has been practiced since the British colonial rule. During British rule (from the 1700s to 1947), the British introduced their legal system, where the death penalty was also included as a form of punishment for certain offenses and crimes. Many British law reformers and administrators encouraged the execution of the death penalty as part of India’s legal system, striving to bring what they saw as law and order.
Even after independence, India continued to retain this form of punishment in its legal system. On one side are those who propagate it as retributive justice, and on the other side are those who criticize this form of punishment, believing that whatever the offense, every individual has the right to life. The first case where this form of punishment was recorded in the Code of Hammurabi around 1754 BC, which prescribed death penalties for various crimes. However, it is difficult to specify the first case where the death penalty was sentenced, but there are legal statutes that include provisions for capital punishment, like the Indian Penal Code, of 1860[3]. The Indian Penal Code, of 1860[4] was the primary statute under which capital cases were prosecuted. Bachan Singh V State of Punjab[5], a landmark decision that helped transform the approach of the country towards the death penalty. In this case, the Supreme Court established the doctrine of ‘rarest of the rare’ and confronted the legality of capital punishment. The doctrine sets out criteria for when the death penalty ought to be applied. This case emphasized on the importance of individualized sentencing and understanding the circumstances faced by the offender. In this case, the accused was convicted for Section 101 of the Bharatiya Nyaya Sanhita (BNS)[6], i.e. murder, of his wife and had been sentenced to imprisonment for 14 years under Section 302 of Indian Penal Code of 1860[7]. After completing his punishment, he started to live with his brother, Hukum Singh and his family, although his stay was not welcomed by his brother’s wife and son. Later on the night of 4th July of 1977, Bachan Singh attacked the family with an axe and with no mercy murdered his brother’s daughters namely, Veeran Bai and Durga Bai and his son Desa Singh. He also injured one of his other daughter namely Vidya Bai. After the incident, Bachan Singh dropped the axe and bolted from the crime scene, just as the victims’ cries awakened the family. The Session Court convicted Bachan Singh for the murder of three innocents and the injuries inflicted on others. Additionally, the Court sentenced him to death under Section 302 of Indian Penal Code[8]. The accused, aggrieved by the decision of the Session Court, applied to the Punjab and Haryana High Court, challenging his conviction and sentence declared by the Session Court. The High Court dismissed his appeal and upheld the Session Court’s judgment. The accused did not stop to this; he further filed a Special Leave Petition (SLP) in the Supreme Court under Article 136 of Indian Constitution. This case continues to guide judicial Court the use of the death penalty in India. The Supreme Court in this case laid down the importance of capital punishment and its constitutional validity, but restricted its application to only the gravest cases, where no other alternatives would serve justice to the victims. This ruling highlighted the balance between justice and human rights. In this landmark case, the court also ruled that the death penalty is constitutionally valid, confirming that it does not violate Article 21 of the Indian Constitution. The court elucidated that capital punishment shall be awarded as and when required, it should not influenced by arbitrary opinions.
In India, many cases are brutally heinous, but the doctrine of rarest of the rare states that the application of the death penalty should not be awarded to all; it should be granted to the worst of the worst. In the case of Atbir v. Government of NCT of Delhi[9], a family had a property dispute, regarding which one fine day the accused, Atbir, his mother Chandravati, Asok, and another person visited the deceased, Sheela Devi, and demanded some money. When the deceased refused to give the money, the accused, Atbir and Asok, closed the door from inside and stabbed the family. First, they stabbed Manish (the son), who died on the spot; then they stabbed Sheila Devi (deceased), who died on the spot; and then they stabbed Savita (the daughter), who was badly injured and taken to the hospital. The court was in a dilemma as a sole dying declaration that is not recorded in front of the magistrate is or is not capable of being a ground for conviction. But in the end, it was held that a dying declaration with full confidence, with proper evidence and a statement from the father of the accused was that there was a motive and that the incident was preplanned by the accused. In this case, the court upheld the conviction and sentenced to life imprisonment of one accused and the death penalty of another accused.
The execution of the death penalty is often carried out by hanging people to death, and it is also regarded as a primary method of execution as per Section 354(5) of The Criminal Code of Procedure, 1973[10] (hereinafter referred to as “CrPC”), which mentions “hanging by the neck until death”, granted in only the rarest of the rare case[11]. In the CrPC, death was the standard punishment for murder and it was essential for the judges to give a reason in their judgment if they desired to give life imprisonment instead of the death penalty to the convict.
METHODOLOGY-
This research adopts a qualitative, doctrinal approach, largely grounded on secondary sources, to thoroughly examine the practicality of capital punishment in India within the context of justice and human rights. The paper includes a detailed analysis of statutory provisions, landmark judgments, constitutional interpretations, and international human rights instruments.
Key landmark cases, such as Bachan Singh v. State of Punjab[12] and Atbir v. Government of NCT of Delhi[13], are mentioned to help understand the ideology behind this form of capital punishment and also understand the judicial evolution of the ‘rarest of the rare’ doctrine and the application of the death penalty in India. The methodology includes
- Doctrinal legal research: The in-depth analysis of the legislative statutes that give judicial enforcement to death punishment, such as the Indian Penal Code[14], the CrPC[15], and the Indian Constitution[16].
- Case law review: Evaluating major judgments of the Supreme Court and the High Court to assess ratio reasoning and tendencies in awarding the death penalty.
- Literature review: Analyzing various scholarly articles, books, and legal commentaries to appraise the philosophical, ethical, and legal arguments both for and against capital punishment.
- Comparative analysis: Brief allusion to international human rights standards and practices in other jurisdictions to examine India’s conformity with global norms.
This method ensures a detailed understanding of the ethical implications, judicial enforcement, and legal framework that hold sway over capital punishment in India while also considering the human rights issues it raises. This paper focuses on drawing reasoned conclusions based on evidence and prevailing legal and moral debates.
REVIEW OF THE LITERATURE-
The death penalty, or capital punishment, is one of the most debatable forms of punishment. This literature review reconnoiters various aspects of the death penalty in India, drawing upon various articles, legal reports, and judicial analyses to provide a thorough understanding of its ethical, legal, and sociological implications. Capital Punishment is a form of punishment that is enforced by the Indian Penal Code (IPC), which specifies that the death penalty should be awarded in the rarest of the rare cases, mainly in the cases involving heinous crimes such as murder, terrorism- related offenses, and crimes against the state. The ethical arguments on the death penalty revolve around the issues of morality, justice, and human rights. Bhumika N[17] in her research paper emphasized on the abolishment of the death penalty, pointing out its unethical underpinning and class biases that at large affects the entire society.
Although, the death penalty is seen as violation to fundamental human rights, it has deterrent value against serious crimes. Studies reviewed by Passell & Taylor[18], present mixed evidence on the effect of capital punishment. Some argue that capital punishment is a powerful deterrent to stop others from doing crime; while others see it as an unnecessary tool in legal framework as they believe everyone has the right to life[19], no matter what crime they commit.
A significant body of literature, including the works of Krishna Iyer and various judicial observations, underlines the inherent class and socio-economic biases in the exercise of the death penalty in India.
Various scholars critically examine the adoption of western experiences with capital punishment in the Indian context. The Law Commission of India’s Thirty-fifth Report[20] implies that abolishing the death penalty in India poses significant risks to maintaining law and order, given the Country’s diverse and vast population.
The legislative boundaries encapsulated after the doctrine of the rarest of the rare, laid down in the landmark case Bachan Singh v. State of Punjab[21]. In the case of Suresh Kumar Koushal & Anr v. Naz Foundation & Ors[22], the court emphasized on the application of capital punishment and its effectiveness and ethical implications.
In the case of Suresh Kumar Koushal & Anr v. Naz Foundation & Ors[23], the constitutionality was reaffirmed and it implied emphasis on the role of deterring heinous crimes while imposing the need for judicial discretion in its application. The literature on the death penalty in India represent a composite interplay of it ethical, legal, and sociological factors. While the death remains a debatable component of India’s criminal justice system, many critics underline the need for reforms in the biases and inefficacies.
METHOD AND SUGGESTION-
This paper adopts a qualitative, doctrinal approach, as mentioned earlier. The death penalty is a tool that should be used by judicial authority in the worst of the worst case. It is pertinent to note that there are some individual or group of individuals who deserves this kind of punishment, one of such cases is the Nirbhaya Rape case[24], where a girl was brutally raped and assaulted by six men. The girl named Jyoti Singh, a 22-year old physiotherapy intern, was travelling with her friend Avindra Pratap Pandey. The six men brutally raped the victim and beat her friend to death. It took 11 years for the court to grant justice to both the victims. Seeing such cases fears me from people who lack humanity and dignity to life and therefore they deserve such kind of capital punishment as I believe humanity is for humans and not for demons.
In the case of Ediga Anamma v. the State of Andhra Pradesh[25], the Supreme Court laid down that life imprisonment for the offense of murder is the rule whereas capital punishment is the exception to this rule in certain cases, such as the Bachan Singh case, Nirbhaya Rape case. The judicial system in India should escalate its proceedings as ‘justice delayed is justice denied’ believed by many scholarly jurist.
In another case, the constitutional validity of this form of capital punishment enforced under Section 302 of Indian Penal Code was in question to which court reacted that sentencing an accused won’t count as murder and upheld the constitutional validity of Section 302 of Indian Penal Code.[26]
In the case of Shabnam v. Union of India[27], it was the first time when the court awarded the death penalty to a woman and also hanged the women to death for the first time in the Indian legal system. Shabnam, the accused, brutally murdered her own family when her family refused to agree to her marriage with her lover. She did not even spare her 10 months old nephew, unapologetically murdered him. She requested the President for mercy but the President rejected her appeal. Witnessing such cases evokes emotional pain and therefore in my opinion this form of capital punishment is justified as sentencing them life imprisonment would not be enough, as they are a liability to the society and liability should not be fed they should be erased.
CONCLUSION-
There are incidents that horrify many people with the thought of pain and fear, the victims of the cases, felt while experiencing it. The conclusion basically summarizes this paper which focused more on the deterrent value of the death penalty by showcasing many such events where it was absolutely necessary to grant the death penalty to accord justice to the victims and the society.
Cognizable crimes like murder[28], rape[29], and gang rape[30] are offenses where judicial courts should show no mercy to the convicted criminals only after the crime is proved. It is pertinent to mention that a person is said to be criminal only after his crime is proved; until then, all accused are innocent. There are cases where the innocent are convicted; that is regarded as the cruel part of the judicial system.
Various studies and analysis have failed to illustrate the importance to give deterrent value to the death penalty compared to other punishments. Many countries, which have abolished the sentencing of the death penalty even in the worst of the worst cases, haven’t seen rise in the rates of criminal cases. It talks about both aspects of thinking, the deterrent nature of the death penalty, by illustrating events that support the incident, and the importance of abolition the death penalty to enshrine the fundamental right of human being under Article 21[31]. This complexity does not only stem the legal and constitutional interpretations but also embedded ethical, moral, and societal values of the people.
Therefore, arriving at a definitive conclusion in this long-standing debate remains unclear. The contention between restraining people from committing crime in the fear of the death penalty as a deterrent against heinous crimes and abolishment of the death penalty as a ground of violation of fundamental human rights continues to evoke compelling questions from both the sides, but still is vague in nature.
Virdhi Agarwal
B. COM LLB (H)
4th Year, Sister Nivedita University
[1] an Indian politician
[2] a Soviet physicist and a Nobel Peace Prize laureate
[3] the Indian Penal Code, of 1860
[4] Supra Note 3
[5] Bachan Singh V State of Punjab 1980 2 SCC 684, AIR 1980 SC 898
[6] the Bharatiya Nyaya Sanhita (BNS ) 2023
[7] Supra Note 3
[8] Supra Note 3
[9]Atbir v. Government of NCT of DelhiAIR 2010, 9 S.C.R 993
[10] The Criminal Code of Procedure, 1973
[11] “Section 354 in the Code of Criminal Procedure, 1973”. Indian Kanoon. Retrieved 7 October 2020.
[12] Bachan Singh v. State of Punjab 1980 2 SCC 684, AIR 1980 SC 898
[13] Atbir v. Government of NCT of Delhi AIR 2010, 9 S.C.R 993
[14] Supra Note 3
[15] Supra Note 10
[16] Particularly Article 21 of the Indian Constitution
[17] Death Sentence: Need for a Unanimous Decision- A Social and Legal Perspective, 2012
[18] 1977
[19] Article 21 of the Indian Constitution
[20] 1967, National Law University, Delhi
[21] Bachan Singh v. State of Punjab 1980 2 SCC 684, AIR 1980 SC 898
[22] Suresh Kumar Koushal & Anr v. Naz Foundation & Ors 2013
[23] Supra Note 22
[24] 2012
[25] 1974
[26] Bachan Singh v. State of Punjab1980 2 SCC 684, AIR 1980 SC 898
[27] 2015
[28] Section 101 of the Bharatiya Nyaya Sanhita (BNS)
[29] Section 63 of the Bharatiya Nyaya Sanhita (BNS)
[30] Section 70 of the Bharatiya Nyaya Sanhita (BNS)
[31] The Indian Constitution