Death Penalty in India: Constitutional Validity and Global Trends

Abstract

The Death Penalty is the most common punishment for committing any heinous crime or serious offence. The death penalty is also known as capital punishment. It has a long history from ancient times. It has different types of history in Hindu law, as well as Muslim Law and the Mughal Empire. For granting the death penalty, it has to follow a proper procedure; otherwise, it will be rejected by the Superior Court. The death penalty is given in various offences which have been discussed under the IPC, NDPS Act, the ST & SC (Preventive Atrocities Act), etc. But for this topic also arises the question of the validity of this in India. But by discussing case laws, it has been proven that the death penalty is constitutionally valid. In several countries, the death penalty was abolished, and some followed this process. But the death penalty is no longer a deterrent measure for reducing crime in the country.

Introduction

The term ‘death penalty’ refers to punishing a person with death. It is also known as ‘capital punishment’. It is the highest grade of punishment under the Judicial system. Punishment is one of the primary pillars of civilisation, maintaining law and order. The Death Penalty is generally given in the rarest of cases to a person for committing a heinous crime like terrorism, murder, rape, etc. It is given to a person to create a new history in the country and prevent others from committing the same offences. The Death Penalty is killing a person, but it is as per the law. It punishes the offenders to protect society from crime and criminals. 

What is the Death Penalty / Capital Punishment

The word ‘capital’ has been derived from a Latin term “capitalis” which describes concerning the head. Thus, the death penalty means to lose one’s head. 

The term death penalty also refers to the word ‘capital punishment’, which is the execution of a criminal, which is passed by the state as a means of justice for a crime that he has committed. It is the most severe punishment. It has been passed for the most heinous crime as per the law. It depends on the stage of the crime.

According to Encyclopedia Britannica, the death penalty means the execution of an offender by the court of law for committing an offence after being found guilty of that crime.

The death penalty is mainly given for the following reasons—

1. If it is found that a person has committed a heinous crime and proven guilt, by giving him the death penalty, he is prevented from committing any other offences.
2. It will cause fear in the minds of other persons who have any criminal tendency.

History of the Death Penalty

The history behind the death penalty is classified into four topics, which are as follows:-

• Death Penalty under Hindu Law: From ancient times, punishment was an integral part of society. The death penalty was given for eradicating antisocial activists from society. It was an old custom in the Hindu community. It is also mentioned in scriptures and books. And it had not been seen as barbaric in the Hindu legal system.

The theory of the death penalty was made by Kalidas. Even though it is mentioned in the Mahabharata and Ramayana. And it is given to the wrongdoer to save society from any kind of threats. And Katayana and Brahaspati supported the death penalty.

• Death Penalty Under Muslim Law: Islam is maintained by Sharia law and developed from the Qur’an, Sunnah (Hadith), Ijma, and Qiyas. In verse of 2:30 of the Quran said that, “Your Lord said to the angels, I am appointing a vicegerent on earth”, and also provides that “Your Lord said to the angels, I am about to create a human being out of clay; when I have fashioned him and breathed of My spirit into him, kneel before him in prostration”.

Thus, the Quran does not support the death penalty because it goes against humanity. But, after a time, the Quran allowed taking life by giving the death penalty by law and order to provide justice to the people.

• Death Penalty under the Mughal Empire:

The medieval history of India was created by the Mughal Empire. They followed the Quranic administration regarding the death penalty. The Mughal empire made a decision on the basis of the Quran when any dispute arose.

Akbar said that the death penalty is given only after consideration and in the most heinous offences. And he also believed that the death penalty must not follow any cruelty. Jahangir and Aurangzeb followed the same laws.

• Death Penalty in Pre and Post Independence era: The matter of the death penalty was not discussed in the Legislative Assembly in India until 1931. After that, the Home Minister discussed it. Before independence, he made it clear that there is no condition to repeal the death penalty. And after Independence, the Indian government adopted various laws, including the Indian Penal Code, 1860 & the Code of Criminal Procedure, 1898.

Procedure of the Death Penalty

• Trial Court: A Court of Session has the power to pass a sentence of death penalty in the rarest cases, but after taking reference from the High Court under Section 366(1), Cr.PC. [480 of BNSS]
• High Court: The High Court may pass a death sentence to a wrongdoer in the following stages—

1. If the High Court certifies that the case is fit for appeal under Article 132 or 134A of the Constitution.
2. Mandatory Appeal to the Supreme Court under Article 134, Constitution of India.
3. Special Leave Appeal to the Supreme Court under Article 136 of the Constitution.

• Supreme Court: The Hon’ble Supreme Court may pass a sentence of death when there is sufficient evidence by the Public Prosecutor to believe that the crime has been committed by the person.
• Review Petition in the Supreme Court: When the Supreme Court passes a sentence of death against a criminal, a review petition has been filed under Article 137 to ensure that the case is fit for the death penalty or not.

Crimes Punishable by the Death Penalty

In India, there are several laws that include the death penalty for committing crimes. Thus, the following laws say which crimes are punished with the death penalty.

• Indian Penal Code, 1860: IPC includes several types of crimes that involve the death penalty. These are as follows—

1. The crimes of waging war or abetting the waging of war against the government of India are punished with the death penalty. Section 121, IPC, deals with the matter of waging war.
2. Section 132, IPC provides that the abetment of muting, specially punishing those who instigate an officer, soldier, sailor, airmen of Indian armed forces to mutiny and that mutiny occurs as a result. And for those offences, a wrongdoer is punished with the death penalty.
3. If a person gives any false evidence against a prisoner for his capital punishment, and he is convicted due to such false evidence, the person will be penalised with death for giving false evidence, as provided in Section 194, IPC.
4. When a person committed a murder of another person, he is convicted of the death penalty after proving his guilt under section 302, IPC.
5. The abetment of suicide by a minor, insane, or intoxicated person, section 305 provides the punishment of the death penalty.
6. Section 364A deals with the offences of kidnapping. If a kidnapper threatens the life of a victim for claiming ransom or causes hurt or death to compel someone to do or abstain from doing an act or pay a ransom. The accused will be punished with the death penalty, but it is necessary to prove the act of abduction by the victim.
7. When a person commits an offence of rape which results in the death of the victim or a persistent vegetative state of the victim, the accused is punished with death under section 376, IPC.
8. Section 376E said that an accused will be sentenced to death because he has committed several sexual offences, such as rape, committed for the second time.
9. Section 396 defines the offence of dacoity with murder. It says that if five or more persons jointly commit dacoity and one of them commits murder, all are liable for murder and punished with the death penalty.

• The Commission of Sati (Prevention) Act, 1987: If a person is involved in the commission of sati, they are punished with the death penalty under this act.
• Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985: Section 31A, NDPS Act provides that if any person is involved or helps financially in the production or sale of narcotic or psychotropic substances, they will be punished with the death penalty.
• The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,1989: A false evidence provided against an innocent person belonging to SC or ST, and convicted for an offence punishable with death under this Act.
• Army Act, 1950; Air Force Act, 1950; and Navy Act, 1957: Any serious offence committed by the military forces under several military laws they are punishable with death.

Offenders Excluded from the Death Penalty

There are some persons who will not be punishable with the death penalty even after committing a heinous crime, which are—

• Minors: According to Indian laws, if a person committed an offence during their minority, below the age of 18, they are exempted from the death penalty. The law believes that the person who has not attained adulthood learns from this mistake and improves himself in a proper environment and education. There is a law for minors known as the Juvenile Justice Act, 2015.
• Pregnant Woman: Pregnant women are exempt from the death penalty. If the High Court finds out that a woman penalised with the death penalty and she is pregnant, her punishment will be postponed or commuted to life imprisonment. It believes that the death penalty for a pregnant woman means killing both the woman and the child in the womb. It is unfair to the child, as he is not a wrongdoer, which is why pregnant women are excluded from the death penalty. 
• The disabled person is also exempted from the death penalty ruled by the Supreme Court of India.

Constitutional Validity of the Death Penalty in India

Article 21 of the Constitution, which provides a fundamental right to life, is the death penalty absolute? The death penalty is not absolute against Article 21, but the judges have the power to maintain this Article by law & order. If the Judges have to choose between the death penalty and life imprisonment, they choose the second one because the death penalty is a default punishment under the Cr.PC. 1898. But, in the Amendment of 1973, it stated that the death sentence is an exception.

The constitutional validity of the death penalty in India was challenged in the case of Jagmohan Singh vs. State of UP. In this case, the first question raised was whether the death penalty violated Article 21 of the Constitution. The five judges of the bench of the Supreme Court observed that it does not violate any Article and is constitutionally valid, and the punishment between the death penalty & life imprisonment, the judges choose any of the punishments after considering facts and the nature of the crime.

In Bacchan Singh vs. State of Punjab, in this case, a doctrine was introduced that is the “rarest of rare” doctrine. This case made the death penalty mandatory. It is upheld by the majority of 4:1 of the Supreme Court judges that the death penalty is constitutionally valid, but it is only given in extreme cases. The Supreme Court does not give any definition or restriction on the doctrine of rarest of rare cases.

In Mukesh And Anr. Vs. State of NCT of Delhi, the Supreme Court held in the case that the court punished four prisoners with the death penalty and set this case as horrifying in terms of humanity. Later, they requested the Supreme Court to review the judgment, but the Court rejected it.

Analysis of the Death Penalty in Global Trends

The use of the Death Penalty is not consistent with the right to life or the right to live freely, free from any torture or cruelty. The death penalty has been abolished in many countries, including 170 countries, but it continues in some countries. Even some country permits the use of the death penalty in extreme crimes because it deters crime. When the death penalty was abolished, human dignity and rights increased.

In the early 1960s, though the majority of countries used the death penalty, the International Covenant on Civil & Political Rights had already started to abolish the death penalty in International Law. Thus, Article 6 of ICCPR permits the use of the death penalty in limited circumstances and provides that “nothing in this Article shall be invoked to delay or to prevent the abolition of capital punishment by any state party to the present covenant”.

Conclusion

The death penalty is also known as capital punishment and has been used in India since ancient times. It is the most common punishment in India for crimes which violate the law. There was no concept of a grievous, serious offence previously for granting the death penalty. However, now there arises the doctrine of the rarest of rare cases, as well as the consideration of grievousness, etc., for granting the punishment. And also, the death penalty is given because it would be considered a deterrent, a preventive measure. But the death penalty is no longer a deterrent method to reduce crime in the country. 

References

• (1973) 1 SCC 20 (https://indiankanoon.org)
• (1982) 3 SCC 24 (ibid)
• AIR 2017 (6) SCC 1 (https://indiankanoon.org)