Abstract
This study analyzes the legal evolution and historical perspectives around the death sentence in India. It explores the development of the death penalty from customary practices to its current use, delving into both historical and contemporary legal systems. This article describes the legislative modifications, Supreme Court decisions, and constitutional disputes that have influenced India’s use of the death penalty. It also assesses the many execution strategies that have been used historically and today. Through the examination of academic literature, legal papers, and historical texts, this research offers a thorough grasp of the intricate and diverse matter of capital punishment in India.
Keywords
Death Penalty, Capital Punishment, India, Legal History, Punishment, Constitution
Introduction
Capital punishment, execution of an offender sentenced to death after conviction by a court of law of a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.[1]
Government has approved the practice of executing someone as a means of punishing them for a crime; this is known as the death penalty. 58 nations, including the United States, which is seen as the beacon of Western economic and human growth, continue to adhere to this perspective despite the fact that hundreds of books and articles have been written about it. Still, doing away with an investigation of this judicial issue appeared both intellectually and morally acceptable and beneficial.
Therefore, the lawful execution of the criminal for a crime or offense that is illegal can also be referred to as capital punishment. The “death sentence” is the punishment that sentences a guilty person to death, and the “execution” of the death penalty is the act of executing the death penalty.
The government or the local rulers enforce punishment as a means of preserving the land’s legitimacy, which supports the stable Morden society. In order to maintain society’s law and order, it is the responsibility of the government to punish offenders. Punishment may also mean forcing someone or something to do something against their will in an effort to deter future criminal activity or to stop society as a whole. Capital punishment, was once known as judicial homicide. Executing criminals by hanging is authorized under the death sentence. Since crime is really done to society and not to an individual.
Considering that it involves taking someone’s life, which is a very delicate affair, the death penalty appears to be a very serious topic. This is what gave rise to the inquiry.
“Why do criminals suffer the death penalty?” is a question that is raised in countries like India, the US, and some other states. However, when we concentrate on India, we find that punishment is dealt out in the rarest of circumstances; the majority of instances center around preventive and reformative punishment theories.
The death penalty may be applied to these prisoners in order to end their pain and allow them the chance to escape this miserable life. When a criminal commits a genuinely horrible act, it should be brought to justice as quickly as possible since their presence in the community not only puts society’s delicate balance in jeopardy but also encourages other criminals to do the same crime. By common usage in jurisprudence, criminology and penology, capital sentence means a sentence of death.[2]
For such offenses, there were no appropriate laws, rules, or regulations in the past, thus the king’s judgment was mostly used. Following the establishment of laws, the state was obligated in the majority of states to punish the offender and defend the rights of others.
There are multiple perspectives on the matter; some support the death penalty while others oppose it irrespective of the criminal, the accused, or the method of execution.
The primary goal of punishments is to make the wrongdoer pay for their actions. Punishing someone for their wrongdoing provides two main purposes: first, it makes the wrongdoer deserve to experience the consequences of his actions; second, it deters other potential offenders from committing the same crime. The same reason as other penalties is used to administer the death penalty.
Presently there are around 58 nations who have adopted Capital Punishment including India, China, U.S and Indonesia who also voted against the non-binding resolutions of the U.N adopted in the UN General Assembly for global moratorium on executions, but at the same time there are 96 other countries who have abolished Capital Punishment including opposition regarding the same from Human Rights Watch and Amnesty International.[3]
Evolution of Capital Punishment/ Death Penalty
India has a long tradition of socialism and culture, and the death penalty has been applied there for centuries. Historical accounts suggest that different types of execution were common in different parts of India. These traditions developed over time and were incorporated into laws by various kings and colonial power.
The death penalty is one of the worst ways to punish criminals. From the beginning of time, we have seen leaders put criminals to death whose deeds were unpleasant and went against the rules and laws put in place to maintain society’s order.
(A) Ancient legal system:
Since ancient times, Indian society has accepted the idea of punishment, including the death penalty. The Manusmriti and Arthashastra, among other ancient Indian writings, established various penalties for various crimes, including the death sentence for severe offenses. These penalties, however, were not always applied uniformly or systematically and were frequently determined by the concepts of dharma, or righteousness.
According to Hindu mythology we have seen the following in the most famous and followed Upanishad and purana. The most noteworthy punishment of capital punishment was recommended for specific offenses, in particular,
(1) demonstrations of undermining the state,
(2) Mahapatra – killing a Brahmana, drinking the alcohol called ‘sura’ by two times conceived (dwija), infidelity with master’s significant other, and abetment of these offenses (Manu IX 235 and XI 54).
Incendiaries, murder, burglary, harming, infidelity, abetment of the robbery by giving resource, instruments for house breaking or refuge, influencing break of bank, endeavour to kill, causing cutting short vide Kaut. P.259, Harita VIII 190- 202,220-221, Yaj. II 273, Manu IX 271, 279,371, and Gaut. XXIII 14, Kat.806 recommended capital punishment for a Brahmana on the off chance that he carried out burglary of gold, caused foetus removal or killed a lady (Stri-hatya). There were a few methods of causing capital punishment alluded to in old regulation texts, for example, by overseeing poison, by consuming or by wrecking him through wild creature.[4]
(B) Modern Legal System:
The Indian Constitution prioritizes preventative and reformative theory above death punishment and retributive measures. It is observed that the death penalty is rarely used in extremely rare situations.
India maintains the view that crimes and mistakes are committed by individuals, and that people make the decisions and cannot subject another person to an unfavourable punishment such as the death penalty.
Facts and statements on the death punishment are provided by the following sections of the Indian Constitution:
- The Indian Punitive Code, 1860 (IPC) included the death penalty as one of its punishments when India gained independence. Additionally supported in is the death penalty unconventional or local laws for certain offenses. Too far, the Indian Penal Code has stipulated the death penalty for many transgressions under its provisions, such as those under Area 121, Segment 132, Area 194, Area 195A, Segment 302 etc.
- The Indian Constitution states in Article 21 that “no individual shall be deprived of his life or his own freedom except in accordance with the methodology prescribed by regulation.”
Laws in India that govern criminal law have established protocols pertaining to the death penalty. - Acts pertaining to the armed forces: The Military Demonstration Act of 1950, the Aviation-Based Armed Forces Act, and other similar laws specifically allow the death penalty.
- The Naval Force Act of 1950, the Indo Tibetan Line Police Act of 1992, the Assam Rifles Act of 2006, the Line Security Power Act of 1968, the Shastra Seema Bal Act of 2007, the Guard and Inward Security Act of 1971, the Booked Standings and Planned Clans (Counteraction of Abominations) Act, 1989, the Hazardous Substances Act, 1908 as amended in 2001, the Maharashtra Control of Coordinated Wrongdoing Act, 1999, the Karnataka Control of Undertakings, and the Unlawful Exercises Counteraction Act, 1967, as amended in 2004.
- Concealment of Illegal Demonstrations against Security of Maritime Route and Fixed Stages on Mainland Rack Act, 2002, is another; the other two are the Coordinated Wrongdoing Act, 2000 and the Andhra Pradesh Control of Coordinated Wrongdoing Act, 2001. The passing penalty-imposing Arunachal Pradesh Control of Coordinated Wrongdoing Act, 2002, as well as other related laws, have been abolished.
The death penalty is cruel and misleads people’s perceptions of India’s constitution and current state of affairs in both the Indian and global communities.
The aforementioned Armed Forced Acts have eliminated the application of penalty.
History
In the Code of Criminal Procedure (CrPC), 1898 death was the default punishment for murder and required the concerned judges to give reasons in their judgment if they wanted to give life imprisonment instead.[5] There was no legislative preference between the two sentences, as evidenced by a 1955 change to the CrPC that did away with the requirement for written defences against the death sentence. Following additional amendments to the CrPC in 1973, life in prison became the standard and the death penalty was reserved for the most dire situations. These included cases where the offender was deemed too dangerous to even be “considered” for paroled release into society after 20 years (life imprisonment without parole does not exist in India because it is too expensive to feed and house dangerous criminals for the entirety of their lives and because removing the possibility of parole after a life sentence removes the positive and rehabilitative incentive to improve behavior; all criminals sentenced to life imprisonment in India are automatically eligible for parole after serving 20 years, as per IPC 57), and necessitated “special reasons. This significant modification suggested the desire to restrict the application of the death sentence in India. Additionally, a criminal trial was divided into two phases by the CrPC, 1973, with separate sessions for conviction and sentence.
Constitutionality of capital punishment
Prior to the examination of Supreme Court of India, the abolition of the death sentence in India was examined by the 35th Law Commission report in response to a resolution moved by Raghunath Singh, Member of Lok Sabha.[6]
The Law Commission of India ruled that the death sentence should be kept in place, citing reasons why the situation in India necessitate a different stance from the one advocating for the “abolition of the death penalty.” According to the report, India is prevented from adopting a favourable stance to abolish the death penalty due to a number of fundamental factors and issues, including the country’s diverse population, varying upbringings, differences in morality and education levels, and the critical need to uphold law and order. But as a result of several significant rulings rendered by the Indian Supreme Court, the body of law pertaining to the death penalty has drastically evolved.
Techniques for carrying Out the Death Penalty in India
Now that the meaning and evolution of the death penalty have been recognized, it is necessary to comprehend the means by which it is carried out. The death sentence can be applied in a variety of methods, and we shall explore them below, as well as those used in other nations and in India.
- Hanging: In India, hanging is the ultimate method of execution. Nathuram Godse, the professional assassin of Mahatma Gandhi, was swiftly hanged in independent India in 1949. The Indian Supreme Court has ruled that the death penalty should only be applied in the “most uncommon interesting cases.” On November 21, 2012, Ajmal Kasab, the man who created a fright following the 2008 attacks in Mumbai, was put to death. His request for mercy had just been denied by the Indian High Court, and the Leader of India had also rejected it. Seven days afterward, he was hung. On February 9, 2013, Afzal Master, an oppressor motivated by terror and suspected of planning the attack on the Indian parliament in December 2001, was hung in Delhi’s Tihar prison. Even in the most unlikely of situations, the code ought to give a detailed explanation before directing someone to the structure.
- Decapitation: Another brutal method of execution is chopping off a person’s head from their body. This type of retribution, in which the monarch would toss the enemy’s head away from the body, was applied in historical battles. These kinds of sanctions are still in use in several Middle Eastern nations.
- Gas chambers: Gas chambers are small, tightly contained spaces where people are compelled to remain without even airflow. This technique is used on individuals or groups of people. Destructive chemicals, such as nitrogen oxide, are emitted from infested regions, creating a structure like to a shower. There is a risk of mortality and serious health effects from these gasses for humans. This type of penalty was generally used in the past. in the Nazi regime in Germany, particularly. Although it’s not used anymore, it is still used in some states, such California, Arizona, Oklahoma, and others, as a backup punishment to the death sentence.
- Shooting: In compliance with the Military Demonstration and Flying Corps Act, the passing sentence may also be executed. The offenses specified in Sections 34(a) through (o) of The Flying Corps Act of 1950 are covered by Section 46 of The Aviation Based Armed Forces Act of 1950, which gives the court the authority to order prison terms. “After imposing a death sentence, a court of war will, in its sole watchfulness, determine that the guilty party will be slain by the neck, will be hanged until he is dead, or will be executed by being shot,” says Section 163 of the Constitution.
- Stoning: When an offender is delivered to a community or group of people, it is a kind of punishment known as stoning. A group of people gathers close and starts throwing stones at the offender. Severe injuries and finally death result from the relentless stoning. Everywhere in the earth, people routinely followed the custom. In the beginning, nighttime played a significant role in India, especially throughout the Islamic era in the Middle Ages. The Gulf nations, which include Saudi Arabia, Qatar, Iran, Yemen, Sudan, and the United Arab Emirates, still practice it; India has stopped doing so.
- Lethal injection: A method for overdosing a criminal with drugs is called lethal injection. The misuse of drugs ultimately leads to the perpetrator’s demise. It’s an old custom that was followed in the past, but at the moment it’s largely seen in the US and other parts of the world, where some people notice it and others don’t since there’s not enough information available.
These are the most commonly utilized penalties that have been in place both historically and now. The two ways that the death penalty is carried out in India are by hanging and by firing. The execution method that was previously employed was hanging, however it was gradually replaced by gunshot.
Research Methodology
This paper is of qualitative research methodology, the research is based on secondary sources for the deep analysis of the death penalty in India. Secondary sources of information like newspapers, journals, websites and research papers are used for the research.
Review of Literature
After the UN started addressing the death sentence in 1957, Article 6 of the UN Convention on Civil and Political Rights (ICCPR) was included. India joined the ICCPR in 1979. This article permits the death sentence with very specific legal restrictions for the most serious crimes. In its 35th, 187th, and 262nd reports, among other reviews, the Law Commission of India examined the death sentence on a regular basis. Its most recent review, published in 2015, called for its elimination with the exception of crimes involving terrorism. Various authors, including N.V. Paranjape, K.I. Vibhute, Dr. Krishna Pal Malik, and J.P.S. The necessity for a fair and prudent implementation of the death penalty has been emphasized in our discussion of the constitutional and practical dimensions of the penalty, Sirohi. Serious crimes such as treason, murder, and kidnapping for ransom have resulted in public support for the death sentence, which is indicative of public opinion, particularly following high-profile rape cases.
Suggestions
Examine all of the laws and court procedures that are currently in place regarding the death sentence, making sure that the “rarest of rare” standards are always followed. By bolstering rehabilitation programs and crime prevention, place a greater emphasis on preventative and reformative measures than retributive punishment. Ensure that the legal system complies with international human rights norms and take into consideration signing treaties that promote the eradication of capital punishment. Educate and raise public knowledge of the advantages of alternate penalties as well as their ethical ramifications. To guarantee consistency and well-informed decision-making, improve judicial training. Promote studies on the effectiveness of the death sentence as a deterrent to crime.
Conclusion
India continues to have strong historical ties to the death penalty and developing legislative frameworks, making it a divisive topic. The use of this law nonetheless raises ethical, moral, and human rights considerations in spite of the constitutional protections and judicial review. The findings of this study highlight the necessity of a sophisticated strategy that strikes a balance between justice, deterrence, and change. India’s criminal justice system may become more just and compassionate by upholding international human rights norms, improving judicial uniformity, and raising public awareness. To guarantee that justice is carried out without jeopardizing essential human rights, the future course ultimately entails ongoing assessment and adjustment.
NAME: Mahee Parikh
COLLEGE NAME: Pravin Gandhi College of Law, Mumbai
[1] Hood, Roger. “Capital punishment”. Encyclopaedia Britannica, 7 Jun. 2024, https://www.britannica.com/topic/capital-punishment. Accessed 10 June 2024.
[2] Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
[3] law column notes: Capital Punishment in India: An Overview, chapter 1
[4] 2023 IJCRT Journal: vol. 11, page 1908
[5] Lethal Lottery: The Death Penalty in India. Amnesty International India and People’s Union for Civil Liberties (Tamil Nadu & Puducherry). 2008.
[6] Law Commission of India- Thirty-Fifth Report: Capital Punishment, Vol. II, page 22