INTRODUCTION
Capital punishment or death penalty has been one of the mode of punishment given to offenders of henious crime . The punishment for an offender can be extended upto death subject to offence committed by him. India follows the combination of deterrent and reformation theory of punishment. The punishment are imposed to deter the offenders from wrong doing, also opportunities is given to offenders to reform. The main motive for awarding capital punishment by the courts of India is that the offender should suffer the harm and injury that he casted on victim , and the another motive is to discourage other person for commitment of crime.
DOCTRINE OF RAREST OF RARE CASE
India follows the doctrine of rarest of rare cases while deciding capital punishment. The doctrine of rarest of rare cases established in Bachan Singh v. State of Punjab[1]. The Supreme Court laid down that life imprisonment is the rule and death sentence is an exception. Death penalty should be imposed on rarest of rare cases and after examining every side of case. The Court provided the guidelines and principles to be kept in mind and considered while imposing death penalty to a person, which are listed below;
● If the murder has been committed after planning and extreme brutality involves in such murder.
● If the homicide implies exceptional depravity or the homicide of a person has been committed in public service.
● In every case, Capital punishment should not be given. Instead it should be given on the basis of the culpability of various cases. The circumstances of the offender and the crime must be kept in mind before granting such punishment.
● The punishment can only be imposed when the life sentence does not reach the crime committed by the offender.
● Aggravating and mitigating factors must also be taken into account and a balance must be maintained between them.
The doctrine of rarest of rare cases is strictly followed by Indian courts. The accused have guaranteed certain fundamental rights under the Indian constitution but this doesn't mean that they should be released so easily. All the facts and circumstances should be examined with due care , then after punishment should be awarded.
CONSTITUTIONALITY OF CAPITAL PUNISHMENT
India is amongst those countries that has neither abolished the provision of capital punishment nor created any laws specifying its validity and legality . There are number of cases arisen before Supreme Court of India regarding constitutionality of capital punishment.
The first challenge to the death penalty came in case of Jagmohan Singh vs State of Uttar Pradesh[2]. In this case, it was claimed, under Articles 14, 91, and 21 of Indian Constitution, that judges possessed the arbitrary power to impose the death penalty;that the death penalty nullified all fundamental freedoms under article 19; and that there was no fair sentencing procedure with respect to the death penalty. The Bench in this judgement upheld that the death penalty did'nt violate any fundamental rights or freedoms of offender.
In Maneka Gandhi vs Union of India[3], it was held that it ensured two essential safeguards: first, that not all fundamental rights are distinct from one-another. In order to be considered constitutional, a law needed to pass the test of Articles 14, 19, and 21 of Indian Constitution collectively.
Further, it was asserted that any procedure established under Article 21 needed to be fair, just and reasonable and couldn't be oppressive, and arbitrary.
What are Death Penalty Crimes?
● Aggravated Homicide
It is punishable by death under Section 302 of the Indian Penal Code of 1860. In Bachan Singh v. State of Punjab[4], the Court of India held that the death penalty is constitutional only when applied as an exceptional penalty in “the rarest of the rare cases”.
● Other crimes resulting in death
In the Indian Penal Code, the death penalty is applied to a person who commits murder during an armed robbery. The kidnapping of the victim for money is punishable by death if the victim dies. Participation in organized crime, if it leads to death, is punishable by death. Committing or helping another person to commit Sati is also punishable by death.
Terrorism-related crimes not resulting in death
The use of any special category of explosive to cause an explosion that is likely to endanger life or cause serious damage to property is punishable by death.
● Non-fatal rape
A person who causes injury in a sexual assault resulting in death or being left in a “persistent vegetative state” is punishable by death under the Criminal Law Act 2013.Gang rapes carry the death penalty. These changes were imposed after the 2012 gang rape [5].
According to the Criminal Law Ordinance 2018, a person responsible for raping a girl under the age of 12 can be sentenced to death or imprisoned for 20 years along with a fine. The 2018 amendment also specifies the death penalty or life imprisonment for the gang rape of a girl under the age of 12.
● Kidnapping without resulting in death
According to Section 364A of the Indian Penal Code, 1860, kidnapping without resulting in death is an offense punishable by death. If any person detains someone and threatens to kill or harm them during which the abductor's act actually resulted in the victim's death, they will be liable under this section.
● Drug trafficking without fatal outcome
If a person is convicted of committing or attempting to commit, instigating or conspiring to commit any of the various crimes of drug trafficking or financing of certain types and amounts of narcotic drugs and psychotropic substances, they can be sentenced to death.
● Treason
The death penalty applies to anyone who is waging or trying to wage war against the government and assisting officers, soldiers, or members of the Navy, Army, or Air Force to commit mutiny.
● Military crimes without resulting in death
Complicity in assault, mutiny, or attempt to entice an airman, soldier, sailor from duty, and various other crimes are punishable by death if committed by a member of the Army, Navy, or Air Force.
● Other crimes without resulting in death
⮚ If a person is part of a criminal conspiracy to commit a capital offense, it is punishable by death.
⮚ Attempts to kill lifers are punishable by death if the victim is harmed by the attempt.
⮚ If a person provides false evidence knowing that it may lead to the conviction of a person belonging to a Scheduled Caste or Scheduled Tribe for committing a capital offense on the basis of such evidence, he shall be punished by death if it results in sentence. and execution of an innocent person.
Procedure When Death Penalty is Impose
The court has to record special reasons for imposing a death sentence in writing.
Confirmation by High Court
Court of session after imposing death penalty shall submit the proceedings to the High Court, and the sentence shall be executed only after receivingconfirmationfrom High Court.
Further inquiry and Additional evidence
The High Court while dealing with confirmation may order for further inquiry to be made , or additional evidence taken upon, upon the guilt or innocence of the convicted person.
No confirmation
No order for confirmation shall be made until the period for preferring an appeal has expired, or if any appeal is presented within such period, until such appeal is disposed of completely.
In every case submitted to the High Court for confirmation of the sentence, or any new sentence or order passed by the High Court, shall be signed by at least two of judges, when there are three judges Bench.
Offenders Excluded from Death Sentence
There are certain offenders which are being excluded from death sentence which are mentioned below-
● Minor
A minor who is under the age of 18 at the time of committing a crime is not executed according to Indian laws.
● Pregnant Women
Death sentences can not be awarded to pregnant Women. It can be imposed on her after giving birth to a child.
● Disabled person
A person while committing a crime who was mentally sick or is not able to understand the nature of the act, then that person cannot be held liable under the law and can not be punished with the death penalty.
Conclusion
The death penalty is cruel, inhuman and degrading punishment. The death penalty is a symptom of a culture of violence, not a solution to it. There are also other execution methods in place of capital punishment such as beheading, electrocution, hanging, lethal injection, shooting.
-- [1] Bachan Singh v. State of Punjab AIR 1980 SC 898. [2] Jagmohan Singh vs State of Uttar Pradesh 1973 1 SCC 20. [3] Maneka Gandhi vs Union of India 1978 AIR 597, 1978 SCR (2) 621. [4] Bachan Singh v. State of Punjab AIR 1980 SC 898. [5] Mukesh and Anrs. Vs NCT Delhi (2017) 6 SCC 1.
This article is written by Nikita Sharma of Jayoti Vidhyapeeth Women's University.