India is one of the biggest countries in the world which also has so many crimes and culprits and to deal with them we have really strong laws in India. Discipline is given to the wrongdoer for every offense. One of the corrections includes capital punishment or the death penalty, which is rarely applied in India.
Capital punishment is a court ordered statutory death sentence against the person for committing the most serious and heinous crimes. Prosecutions are carried out by hanging. Although in India it occurs only in the rarest of rare cases. Capital punishment is described in the Indian Penal Code and the Criminal Procedure Code. Capital punishment has existed in India since the beginning and over time its use has been limited. It is truly limited that after independence no female criminal has received capital punishment in India.
Capital punishment, therefore, can also be said as the legal death of the wrongdoer for a crime/ delicit prohibited by law.
The sentence that sentences the convicted defendant to death is called the “death sentence” and the process of carrying out the death penalty is known as the “Execution” of the death penalty.
Currently, there are about 58 nations that have adopted capital punishment, including India, China, the US, and Indonesia, which also voted against non-binding UN resolutions adopted in the UN General Assembly for moratorium of executions, but at the same time there are 96 other countries that have abolished the death penalty, including opposition from Human Rights Watch and Amnesty International.
Meaning of Capital Punishment
Capital punishment is the execution of the offender's declaration of death after conviction for a criminal offense by a court of law.
It is different from other extrajudicial executions that are carried out without due process of law. The death penalty is confused with capital punishment, but the death penalty is not always followed by execution because there is still the possibility of commutation to life imprisonment.
Capital punishment is one of the severe forms of punishment and can only be awarded in cases that are very heinous and against humanity. The definition of the same varies from country to country.
Historical Background
Capital punishment has prevailed since ancient times and, in reality, there can be no country that could have escaped it. Capital punishment also existed in Ancient Greece under the Draco laws for various crimes.
Furthermore, the Romans used it for a wide range of crimes but citizens were exempt from them for a short time during the Republic.
One of the earliest composite records where a portion of the death penalty can be seen was Hammurabi's code, which was composed on the stone table around 1760 BC that contained around 282 laws gathered by Babylonian King Hammurabi and also included the hypothesis of “tit for tat”.
Previously, Capital Punishment was meted out in very agonizing and excruciating ways, like being crushed by an elephant. Later, when a social order began to be formulated, these forms were found to be ruthless and inhumane, and thus during the 18th and 19th centuries they were replaced by less excruciating forms such as the death penalty by hanging and the guillotine.
Constitutionality of Capital Punishment in India
Article 21 of the Indian Constitution says that no person shall be deprived of the "Right to Life" that is promised to all citizens of India. The President has the power to grant clemency in the event of the death penalty.
Article 72 of the Constitution of India empowers the President to pardon, suspend, suspend or reduce the sentence of anyone who has been sentenced to death. Once a convict has been sentenced to death in a case by the Court of Sessions, it must be confirmed by the High Court, then if the convict's appeal to the High Court fails, only he can file a 'Petition for Mercy' to the President of India. States must follow detailed instructions for dealing with clemency petitions from or on behalf of those on death row. The Ministry of the Interior establishes the appeals to the Supreme Court and the applications for special leave sent to that court by such convicts.
According to Article 161, the governor also has the discretionary power of the president, but it must be ensured that it is not based on any race, caste, religion, political opinion, etc.
Regarding Article 72 and Article 161, the Judicial Authorities do not really have much to say about it, although they should make sure that all the papers and documents are on the table of the President/Governor before such a decision is made.
Offences Punishable by Death
Crimes/Offences punishable by death in India are as follows-
• Aggravated Murder:
“Under Section 302 of the Indian Penal Code, 1860, aggravated murder is punishable by death.”
• Treason:
The death penalty is given to a person who wages/attempts to wage war against the government or assists members of the armed forces in waging a revolt.
• Kidnapping not resulting in death:
“Section 364A of the Indian Penal Code, 1860, states that kidnapping not resulting in death is also punishable by death”. If a person detains/threatens to kill/harm someone during which the abductor actually performs an act that results in the death of the victim, such act is punishable by death.
• Terrorism related offenses not resulting in death:
Use of Explosives that can cause explosion and endanger life/property damage .For example, Muhammad Afzal[1] was executed by hanging on February 9, 2013 for attacking the Indian Parliament in December 2001, resulting in the death of nine men by five men carrying various explosives.
• Rape Not Resulting in Death:
A person who inflicts injury during a sexual assault that results in the death of the victim is punishable by death under the Criminal Law Act 2013. Gang rapes are also punishable by the death penalty, such changes came after the occurrence of the Delhi gang rape case[2]. Under the Criminal Law Ordinance 2018, a person who rapes a girl under the age of 12 can be sentenced to death or imprisoned for 20 years along with a fine, the same changes were introduced in the system after the rape and murder of an eight-year-old girl in Jammu and Kashmir[3].
• Drug trafficking not resulting in death:
A person convicted of committing or attempting to commit/inciting/criminal conspiracy to commit drug trafficking/financing such substances may be sentenced to death.
• Military Offenses Not Resulting in Death:
Complicity in the assault/attempt to seduce an airman, soldier, or sailor from duty is punishable by death if committed by a member of the armed forces.
• Other crimes that do not result in death:
Crimes that are punishable by death include the following:
If a person is a member of a criminal conspiracy to commit a capital offense.
If a person knowingly provides false evidence that could lead to the conviction of an SC/ST person of committing a capital offense and results in the conviction of an innocent person.
If a person attempts to kill someone who is serving a life sentence and the victim is harmed due to such an act.
• Other crimes resulting in death:
Under the Indian Penal Code, the death penalty applies to a person who commits murder during an armed robbery, kidnapping the victim for money is punishable by death if the victim dies and participates in organized crime if it leads to death.
Offenders excluded from Capital Punishment
Offenders that are excluded from the Capital Punishment are as follows-
• Minor:
Indian law says that a person who is under the age of 18 at the time of committing a crime cannot be sentenced to death.
• Mentally Disabled Person:
According to the Indian Penal Code, a person who committed a heinous crime was mentally or rationally ill or unable to understand that the nature of the act performed by him is risky or dangerous so he cannot be punished with capital punishment.
• Pregnant woman:
Under the 2009 Amendment, leniency must be granted to a pregnant woman sentenced to death. For example, Nalini[4] , who played a major role in the assassination of Rajiv Gandhi, was sentenced to death, but this was commuted to life imprisonment as she was pregnant.
Execution of Capital Punishment in India
• Shooting:
The Air Force Law, the Navy Law and the Army Law also provide for execution of the death penalty. The execution of the sentence of death in accordance with Section 34 of the Air Force Act of 1950, can be carried out by shooting or hanging the wrongdoer.
The Army Act of 1950 and the Navy Act of 1957 also provide provisions similar to those of the Air Force Act of 1950.
• Hanging:
Hanging as a form of Capital Punishment is established in Section 354(5) of the Code of Criminal Procedure of 1973. The method illustrated therein was developed by William Marwood in Great Britain.8 men have been hanged so far on the 21st, most recently in 2020, including the Nirbhaya[5] convicts who were hanged to death on March 20,2020.
Case Laws
In the case, Jagmohan Singh VS State of Uttar Pradesh[6] ,the Supreme Court rejected the argument that it violated Article 19 of the Indian Constitution which guarantees the “Right to Life”.
Rajendra Prasad VS State of U.P[7] :- Judge Krishna Iyer emphatically emphasized that the death penalty violates Articles 14, 19 and 21.
Bachan Singh VS State of Punjab[8] : This was a landmark case, one year after the case of Rajendra Prasad VS State of U.P.[9] with a 4:1 majority (dissenting for Justice Bhagwati), the Supreme Court overturned the decision in the earlier case.It cannot be said that the death penalty as a punishment for Murder is unreasonable even if it violates Articles 14, 19 and 21, but it was argued that the term “Public Order” contemplated in Article 19 (2) to Article 19 (4) is different from “Law and Order” and also introduced the principle of awarding the death penalty in “the Rarest of the Rare cases”.
The Supreme Court recognized Article 21 as the right of the State to deprive a person of her life.The same could also be seen in the Delhi gang rape case, which demanded the death penalty for the accused. Fire has broken out in the Nation and finally the 4 of the accused were hanged on March 20, 2020 after 8 years of waiting.
Macchi Singh VS State of Punjab[10] (1983 AIR 957, 1983 SCR (3) 413): The Supreme Court established guidelines on when the death penalty can be imposed, including the motive, the social/anti-social nature of the crime, the manner in which the murder is committed, the nature/personality of the victim and magnitude of the crime.
Conclusion
It is difficult to say whether it is fair to impose Capital Punishment on someone in the name of morality, since if one looks from a moral perspective, then it is wrong to take someone's life in the name of justice and at the same time it can lead to execution of an innocent person, but if one looks through the social perspective, then if a wrongdoer is not punished for the heinous crimes committed by him, then he would not only be dangerous to the various potential victims, but also to the other potential victims. Wrongdoer might not understand the consequences of his bad deeds.
With the same thing, the important thing is that there must be a control over the power of the President to pardon the person executed by sentence of death.
Also, it is not that the justice system has not considered other ways to punish the wrongdoer, but there are certain cases that call for capital punishment as punishment, such as in the case of the ''Delhi gang rape". Also as stated in "Bachan Singh VS State of Punjab[11]", the death penalty will be awarded in "the rarest of rare cases".
It is no longer the Legality or Constitutionality of the death penalty that is in question, it is the moral and social aspects that are in question. There may be an error in the judgment thus made since he is also human, but at the same time one must understand that this can be dangerous if the wrongdoer is given a second chance, as it is very similar to giving a bullet again in the hands of a person who has already lost it once.
-- [1] State vs Mohd. Afzal And Ors. 2003 VIIAD Delhi 1, 107 (2003) DLT 385, 2003 (71) DRJ 178, 2003 (3) JCC 1669 [2] Mukesh & Anr vs State For Nct Of Delhi & Ors on 5 May, 2017 [3] https://en.wikipedia.org/wiki/Kathua_rape_case [4] State Of Tamil Nadu Through ... vs Nalini And 25 Others on 11 May, 1999 [5] https://www.business-standard.com/article/current-affairs/nirbhaya-finally-gets-justice-rapists-hanged-after-seven-years-here-s-a-timeline-of-events-120032000162_1.html [6] , Jagmohan Singh VS State of Uttar Pradesh ,1973 AIR 947, 1973 SCR (2) 541 [7] Rajendra Prasad VS State of U.P ,1979 SCC(3)646. [8] Bachan Singh VS State of Punjab (AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145) [9] Rajendra Prasad VS State of U.P , 1979 SCC(3)646 [10] Macchi Singh VS State of Punjab (1983 AIR 957, 1983 SCR (3) 413) [11] https://indiankanoon.org/doc/307021/
This article is written by Divya Sharma of Jayoti Vidhyapeeth Women's University, Jaipur.