Abstract
Despite India’s size and rapid development, crimes and other wrongdoing remain on the rise. Even though there are a lot of laws in India aimed at reducing and controlling crime, the number of crimes is still rising. Since the penalties are not severe enough for the offense, the offender has no fear of any laws. Any serious offense should have a harsh penalty to lower the crime rate. Every punishment is designed to punish the culprit. In India, there are many different forms of penalties, including the death penalty, the life sentence, fines, etc. In India, the death penalty is the worst form of retribution for a crime. The retributive justice idea serves as the foundational justification for the death sentence. According to this belief, the offender must likewise meet the same end. The purpose of the death penalty is to discourage future crimes by instilling dread among society’s members. In this research paper, I have covered the constitutional legality of the death penalty as well as numerous case laws, rulings, and opinions of prominent jurists and honorable judges. Finally, I have come to my conclusions and made recommendations in this respect.
Keywords: The death penalty, Deterrent power, constitutionality, and retributive justice.
INTRODUCTION
There are two justifications for punishing an offender: first, that the criminal should endure the suffering and harm that they caused the victim, and second, that doing so would deter other people from committing wrongdoing. The death penalty or capital punishment has always been a contentious issue, not only in India but in several wealthy countries in India. This study will discuss the death penalty, sometimes referred to as capital punishment, which is rarely used by Indian courts. Concerning the Indian court system, this thesis also investigates whether the death sentence is constitutional.It is challenging to comprehend the current status of capital punishment in India from a moral stance without understanding the history of the death penalty and why it is only applied to certain offenses. In this article, the history of the death sentence will be discussed before significant cases that the Indian Supreme Court has ruled on.
It is crucial to understand the various philosophies of other nations to get an understanding of capital punishment on a broad scale.
The worst type of punishment is the death penalty. It is an essential component of India’s criminal justice system. the growing influence of the human rights movement in India.The presence of the death penalty is contested as unethical. Although it is a strange justification, it is ethically wrong to preserve the life of one individual at the expense of the lives of innumerable other victims in society.
Around the world, social activists, jurists, judges, attorneys, legal reformers, and administrators are debating whether or not to abolish the death penalty. There are differing views on the death penalty in India, with some people favoring its continuation and others calling for its abolition.
78 nations in the world still use the death penalty, but they stipulate that it will only be applied in extremely rare circumstances and for a specific purpose. Although neither the legislation nor the Supreme Court has yet defined what the rarest of rare situations or unique circumstances are.
When compared to Article 14 of the Indian Constitution[1], which is a fundamental right that states that no person shall be subjected to discrimination unless such discrimination is necessary to achieve the equality of a particular person, this concept raises doubts about the legitimacy and constitutionality of the death penalty.
RESEARCH METHODOLOGY
The research for this topic is conducted using doctrine methodology. It uses secondary data that has been gathered from a variety of publications, websites, books, etc. What is the law on a certain subject is the question that doctrine study seeks to answer. Analysis of the doctrine’s development and application is crucial to this topic. Pure theoretical research is the term used to describe this kind of study.It requires either quick investigation to find a specific legal statement or a more thorough, in-depth analysis of legal reasoning.
MEANING OF CAPITAL PUNISHMENT
The most severe kind of punishment is referred to as “Capital Punishment.” It is the appropriate penalty for the most egregious, severe, and abhorrent acts against humanity. Although the definition and severity of these offenses vary from one United States to another, from one nation to another, and from one generation to the next, the death penalty has always been the result of capital punishment. Capital sentence is a common term used to refer to a death sentence in law, criminology, and penology. As a result of the imposition of capital punishment, the method of execution has also evolved over time, albeit there are still differences between the contemporary techniques employed globally. There are mainly two methods that are used in India: hanging and shooting. According to the 1973 Code of Criminal Procedure (“CrPC”), the death penalty may be administered by hanging the defendant by his neck until he passes away. The manner of shooting is set down in the laws governing military punishments, allowing the court martial to inflict the death penalty for offences committed by hanging or shooting.
HISTORICAL BACKGROUND
A historical punishment is the death penalty. In practically all nations in the world, the death penalty has been in place at some point. The history of human civilization demonstrates that the death penalty has never been abandoned as a form of retribution. In the past, the death penalty has frequently been applied to crimes including rape, treason, murder, and arson. Despite Plato’s claim that Draco’s regulations should only be administered to the irredeemable, Draco’s laws (fl. 7th century BCE) were in effect in Greece at the time. The Romans frequently utilized it for a wide range of offenses, even though residents were pardoned for a small length of time under the republic.These provide support for Sir Henry Marine’s statement that “The Roman Republic did not abolish the death penalty even though its non-use became primarily directed through employing the execution of punishment or exile and the way of questioning.”
Famous poets and thinkers like Kalidasa and Kautilya, as well as holy classics of Hindu philosophy like the Mahabharata, provide evidence of the use of the death penalty in ancient times. There is no proof that the death sentence was abolished under the laws at the time, not even in the Buddhist era, when the doctrine of Ahimsa was given priority. In addition, Islamic law was introduced with the founding of the Mughal empire, and the emperor himself decided on criminal cases in line with its principles and rules. According to Islamic law, the fundamental goal of punishment is to reduce criminal conduct in society and serve as a deterrent to future crimes. This is the rationale behind the majority of criminal punishments being ordered to take place in public settings so that society may observe and learn. Islam mandates the death penalty for intentional homicide.
CAPITAL PUNISHMENT IN INDIA
A careful examination of the debates in the Legislative Assembly of British India reveals that until 1931, when a member from Bihar named Shri Gaya Prasad Singh attempted to introduce a bill to do away with the death penalty for crimes under the Indian Penal Code, no issue or concern was brought up regarding the death penalty in the Assembly. However, as the then-Home Minister responded to the movement, the movement took a bad turn. The Government’s position on the death penalty in British India before Independence was stated twice in 1946 during discussions in the Legislative Assembly by Sir John Thorne, the Home Minister at the time.”The Government does now no longer suppose it’s clever to abolish capital punishment for any form of crime for which that punishment is now provided”.
India still had several laws in place from the British colonial era, including the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1898 (together referred to as the “CrPC. 1898”). The IPC outlined six penalties, including death, that might be applied following the legislation. For crimes for which the death penalty was an option, Section 367(5) of the CrPC 1898 required courts to record the reasons why they decided not to impose a death sentence: If the accused is found guilty of a crime for which a death penalty is an option and the court sentences him to any punishment other than death, the courtroom docket shall in its judgment nation the reason why the sentence of death became no longer passed.Section 367(5) of the CrPC 1898 was removed by the Parliament in 1955, significantly affecting the context in which the death penalty is applied[2]. The death sentence stopped being the standard punishment, and judges are no longer required to give special justifications for why they chose not to carry out the death penalty in cases when it was mandated. The Code of Criminal Procedure (the “CrPC”) was reenacted in 1973, and several amendments have been made, most notably to Section 354(3): The verdict must include the reasons for the punishment imposed, including, in the instance of a death sentence, the particular reasons for such penalty, where the conviction relates to an offense punishable by death or, in the alternative, with life imprisonment or a term of years in prison.
This was a substantial change from the situation following the 1955 modification, which made the death penalty and the term of imprisonment equally applicable in capital cases and thus reversed the situation under the 1898 statute (in which the demise sentence become the norm and motives needed to be recorded if another punishment becomes imposed). Judges were now required to provide special justifications for their death sentence decisions. The Criminal Procedure Act’s Section 235(2) was revised to provide the option of a post-conviction hearing on the sentencing to the death penalty. If the accused is found guilty, the court must first hear what he has to say about the penalty before imposing a legal punishment.
THE DOCTRINE OF RAREST OF RARE CASES
The idea of the rarest circumstances serves as the foundation for capital punishment in India. This philosophy states that the crime check must be favorable and no longer favor the accused in any way to condemn someone for the loss of life. This philosophy is based on the idea that the court must take into account several factors, including those that society finds repugnant, the criminal’s personality, the reason and method for the crime’s punishment, intense outrage and hostility toward particular crimes, such as the rape of young women, among others. The court’s decision to impose a loss of life sentence shows the necessity of society since the situation calls for it as a constitutional need.
The seminal decision of Bachchan Singh v. the State of Punjab[3], (1980), in which the Constitutional Bench questioned the constitutionality of the death punishment for murder under section 302 of the Indian Penal Code, gave rise to the idea of the rarest of the unusual cases. Due to the facts of the case, the appellant was found guilty of three murders and received a death sentence from the Sessions Court following section 302 of the Indian Penal Code. The appellant’s appeal was denied by the High Court, which upheld his death sentence.The appellant appeared before the Supreme Court through Special Leave to Appeal to raise the question of whether the facts of his case were unique justifications for imposing the death penalty on him following section 354(3) of the Code of Criminal Procedure, 1973.
The Supreme Court ruled that the impugned provision of Section 302 of IPC, 1860 does not violate either the letter or the spirit of Article 19 of the Indian Constitution and that a real and ongoing challenge for the respect of human existence presupposes resistance to taking an existence through the instrumentality of legal rules. The Supreme Court dismissed the challenges regarding the constitutionality of Section 302 of IPC and Section 354(3) of CrPC in the current case. Except in the rarest of rare circumstances, that should not be done.The Court further stipulated the rules and guidelines to be followed and taken into account when imposing the death penalty, which is listed below[4]. A court may also impose the death penalty if the murder was committed as the result of strange plans and involves severe brutality, if the murder involves extreme depravity, or if the murder was committed by a person performing official duties. The death penalty cannot be justified in any circumstance anymore. Instead, it must concede that many situations may be at fault. Before imposing such a penalty, the circumstances surrounding the offender and the offense must be addressed.The penalty can only be approved if it is less severe than the offense the offender committed while serving their current sentence. Additional care must be given to both mitigating and demanding factors, and harmony between them must be maintained.
Given the extent of this doctrine, the Supreme Court further held that: the constitutional validity of this doctrine and the reason for this doctrine, is not a disincentive but a gesture on the part of society to disapprove of the crime, and that it would be riskier for society to abolish this doctrine or the death penalty. As a result, the idea of the rarest of exceptional situations is strictly followed in India, with a significant degree of attention being given to the imposition of the death sentence, even though the perpetrators do possess certain fundamental rights. The circumstances and the statistics are carefully considered before the sentence is given, and the crime may be quite serious, harming society’s ethics and serving as a role model to prevent others from engaging in and committing similar crimes in the future[5].
CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT IN INDIA
India is one of the countries that has neither entirely abolished the death penalty nor established legal regulations defining its legitimacy. The validity of the death penalty has been contested on several occasions since the Indian Constitution was established through Supreme Court petitions. The death penalty may be imposed on criminals for seven different offenses. These consist of;
1. Murder
2. Dacoity accompaniedby murder
3. Abetment of suicide of a minor or insane or intoxicated person.
In 1973, Jagmohan Singh v. State of Uttar Pradesh[6] presented the first defense of the death sentence. In this case, it was argued that judges had the arbitrary power to inflict the death sentence under Articles 14, 91, and 21, that the death penalty violated all fundamental rights under Article 19, and that there had never been a fair sentencing procedure for the death penalty. In this ruling, the Bench upheld the death sentence as being lawful and no longer violating any basic rights or freedoms.Maneka Gandhi v. Union of India, which guaranteed crucial protections, led to the future growth in death penalty legislation. First, it established that not all basic rights are incomparably superior to one another. A statute has to pass the combined test of Articles 14, 19, and 21 to be considered constitutional.
This ruling further said that any method established under Article 21 had to be equitable, reasonable, and fair; it was not permitted to be arbitrary, repressive, or fantastical. When Bachchan Singh v. the State of Punjab presented a historic challenge to the death penalty in 1980, the five-member bench considered it. Regarding the death penalty in India, there have been a variety of views expressed, with some supporting its continuation and others calling for its abolition.
METHODS OF GIVING CAPITAL PUNISHMENT
Current methods of administering the death penalty have been abandoned in favor of new ones that lessen the physical suffering that the criminal goes through while they die. The novel techniques used to administer the death penalty include:
- Hanging
- Beheading
- Stoning
- Lethal Injection
- Shooting
- Electrocution
- Shooting by fire squad
- Gas chamber
- Falling from an unknown height
SUGGESTIONS
Those who support the death penalty contend that it must be applied to even the most horrific and infrequent of crimes, such as the Delhi gang-rape case, when the death sentence was demanded by the perpetrators. People who oppose the death penalty argue on moral, ethical, and religious grounds that it is inhumane and a callous investment. Additionally, it is advised that lifestyle imprisonment or another alternative should be used in its stead. However, there are current justifications for and against the death penalty.
There are disagreements as to whether the death penalty may be carried out in a manner that is consistent with justice. Those who favor the death penalty believe that rules and procedures may be created to ensure that only those who are unquestionably deserving of death be put to death. Opponents, however, contend that any attempt to single out certain types of crimes as deserving of death will unavoidably be arbitrary and discriminatory because of the previous use of the death penalty. They also highlight other factors that, in their view, rule out the likelihood of the death penalty being implemented properly, stating that the poor and members of ethnic and religious minorities frequently lack access to competent legal counsel, which exacerbates racial prejudice[7]. Finally, they contend that because the appeals process for death sentences is drawn out, those who are sentenced to death are sometimes brutally made to endure extended periods of uncertainty about their destiny.
CONCLUSION
Many countries have abolished the death penalty or capital punishment because it violates individuals’ rights to life and liberty and is cruel and brutal in nature. However, if a valid viewpoint were to be adopted, it would be accurate to state that the death penalty, despite its brutality, has some success in lowering criminal acts and deterring criminals. Furthermore, if we were to discuss the proper existence, it would be accurate to state that the Indian Constitution gives criminals enough defenses and remedies, as well as the required legal assistance, the right to treatment, etc. Additionally, a convicted criminal who was accused of committing a few horrendous crimes against a person or the nation at large does not necessarily have the right to life. Therefore, I believe that the death penalty is constitutionally acceptable and justifiable if it is applied to crimes that are particularly serious and disproportionate. A guy or woman, in my opinion, who does not respect their existence or the integrity of their country should no longer be regarded with empathy. Even while it might be challenging to put a monetary value on the crimes that call for the death sentence, heinous crimes like rape, terrorism, and murder should always result in the death penalty.
[1] INDIA CONST. art. 14
[2] A R Blackshield, Capital Punishment in India, 21 Journal of the Indian Law Institute137–226 (1979).
[3] bachchan Singh v. the State of Punjab, AIR 1980 SC 898
[4] Sameer Sharma, Capital punishment and criminal jurisprudence, Lawyersclubindia, (Aug 27, 2010, 6:45 PM), http://www.lawyersclubindia.com/articles/Capital-punishment-and-criminaljurisprudence-6774.asp
[5] Criminal Justice: Capital Punishment Focus, Criminal Justice Degree Schools, (Oct 14, 2020, 10:50 AM), https://www.criminaljusticedegreeschools.com/criminal-justice-resources/criminaljustice-capital-punishment-focus/
[6] Jagmohan Singh v. State of Uttar Pradesh AIR 1973 SCR (2) 541
[7] George H. Gadbois & Jr, The birth of India’s powerful Supreme Court, (July 19, 2013, 8:40 PM), https://www.livemint.com/Opinion/Sso9kkvJY2HDjqDVragv8K/The-birth-of-Indiaspowerful-Supreme-Court.html.