Introduction:
Capital punishment is the highest sort of punishment that may be awarded to somebody under any law in force around the world. So it has been a matter of dialogue for years with some being in favour of its retention whereas others being in favour of its abolition. India is one of the many countries that have retained death penalty on the ground that it will be awarded solely in the ‘rarest of rare cases’ however what constitutes ‘rarest of rare’ is left for the interpretations by the courts.
As per Criminal Procedure Code death sentence in India is carried out by hanging of the person till death, however, the Army’s Act 1950 list each hanging and shooting as the official methods in the military court-martial system. Additionally, different ways prevailing in different parts of the world include shooting, lethal injection, electrocution, gas inhalation, and beheading.
Despite its rare nature according to the study by National Law University, Delhi, 755 people have been hanged in independent India up to now calling for reconsideration of its merits and demerits.
According to the Indian Penal Code along with other acts eleven offences committed within the territory of India are punishable by death:[i]
| Section under IPC or any other act | Offence |
| 120B | Being a party to a criminal conspiracy to commit a capital offence |
| 121 | Waging or making an attempt to wage war, or abetting waging of war, against the government of India |
| 132 | Abetting a mutiny in the armed forces (if the mutiny happens as a result), participating in the mutiny |
| 194 | Giving or fabricating false proof with intent to obtain a conviction of a capital offence |
| 302,303 | Murder |
| 305 | Abetting the suicide of a minor |
| 364A | Kidnapping, in course of which the victim was held for ransom or other coercive purposes |
| Section 376A, Criminal Law Amendment Act,2013 | Rape if the wrongdoer inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender |
| 396 | Banditry with murder – in cases wherever a group of five or more persons commit banditry and one of them commits murder within the course of that crime, all members of the group are responsible for the death penalty. |
| Part ll, section 4 of Prevention of Sati Act | Aiding or abetting an act of sati |
| Section 31A of Narcotic Drugs and Psychotropic Substances Act | Drug trafficking in cases of repeated offences |
The constitutional validity of the death penalty has been challenged from time to time in various cases.
In Jagmohan Singh vs. State of Uttar Pradesh[ii] case, the constitutional validity of death penalty was challenged on the ground that it has been violative of Articles 19 and 21 as it does not provide of any procedure. It was contended that the procedure prescribed in Cr.P.C was confined solely to findings of guilt and not awarding death penalty. It was held by the Supreme Court that the judge makes the choice between death sentence or imprisonment of life on the basis of facts and circumstances of a selected case and the choice of death sentence is done in accordance with the procedure established by law.
In another case Rajendra Prasad vs. State of Punjab[iii] Justice Krishna Iyer said that to impose death penalty two conditions must be satisfied:
- Special reason ought to be recorded for imposing capital punishment in a case.
- Capital punishment should be obligatory only in extraordinary circumstances.
The question was once more considered in Bachan Singh vs. State of Punjab[iv] in which the principle of awarding capital punishment in ‘rarest of rare cases’ was enunciated.
Further, the Supreme Court in Machhi Singh vs. State of Punjab[v] set down circumstances in which capital punishment should be obligatory.
a. When the murder is committed in any extraordinarily brutal manner.
b. When the murder is committed for a motive that evinces total
depratity and meanness.
c. Delinquent or socially offensive nature of the crime.
d. Crimes of enormous proportion, like multiple murders.
e. The personality of a victim of murder eg. an innocent child or a helpless woman.[vi]
In Sher Singh vs. State of Punjab[vii], SC held that death penalty has to be accepted as the law of the land and it is constitutionally valid and permissible within the constraints of the rule in Bachan Singh.
Arguments: In Favour of the Death Penalty
- It is contended that real justice requires people to suffer for his or her wrongdoing and in the case of a murder, criminal deserves death.
- Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing folks.
- It is commonly argued that capital punishment provides closure to victims’ families.
Arguments: Against the Death Penalty
- The statistical evidence doesn’t confirm that deterrence actually works. Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC), still, rapes still happen and in reality, the brutality of rapes has enhanced manifold.
- People who oppose Capital punishment are of the view that retribution is immoral, and it is just a sanitised form of vengeance.
- Death has been abolished as a form of punishment in most of the developed countries.
- Capital punishment doesn’t rehabilitate the prisoner and return them to society.
Mercy Plea
For a mercy petition, the death sentence should first be confirmed by the High Court. There is an option available in law to appeal to the supreme court. If the supreme court either refuses or upholds the death sentence, then the convict or his relatives will submit a mercy petition to the President of India (article 72) or the governor of the state (article 161). Grounds to seek mercy petition range from age, physical fitness, the law being too harsh or convict being the sole bread earner for the family.
Former President Pranab Mukherjee had rejected 24 mercy pleas throughout his tenure, whereas his predecessor Pratibha Patil, granted a record of 30 pardons. President Ram Nath Kovind, until date had rejected at least two mercy petitions including 2012 gang-rape convict Akshay.
Conclusion
With every passing conviction, the controversy concerning capital punishment intensifies. It is criticised mainly on three accounts- arbitrariness, irreversibility, and human right. It goes against our very basic human right that is right to life. It has not served as a deterrent to regulate crime. Moreover, as it is irreversible, an innocent person can also be wrongly prosecuted.
References:
[i] Ss. 120(b), 121, 132, 194, 302, 303, 305, 364(a), 376(a), 396, The Indian Penal Code, 1860. S. 4 The Commission Of Sati(Prevention) Act, 1987. S.31(a) The Narcotic Drugs And Psychotropic Substances Act, 1985.
[ii] Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947.
[iii] Rajendra Prasad vs. State of Punjab, A.I.R. 1979, S.C.p.916.
[iv] Bachan Singh vs. State of Punjab, A.I.R. 1980, S.C. 898.
[v] Machhi Singh vs. State of Punjab, A.I.R. 1983, S.C. 957.
[vi] Death Sentence : A Critical Analysis
https://shodhganga.inflibnet.ac.in/bitstream/10603/12841/10/10_chapter%204.pdf
[vii] Sher Singh vs. State of Punjab, A.I.R. 1983 , S.C. 365
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