CAPITAL PUNISHMENT: A CONTEMPORARY LEGAL ISSUE IN INDIA

I. Abstract

This Article attempts to point out the relevance of capital punishment. Capital punishment is Death penalty given for heinous and grievous crimes. The goal of this Article is to examine the implication, pros and cons and the procedures and any legitimate laws regarding the capital punishment. The Article further analysis legislation relating to capital punishment under Indian Penal code and criminal procedural code. This Article to an extent would also look into the instances of past execution and recent case laws. 

Key Words: Capital Punishment, Death Penalty, Deterrent, Capital Crimes, Execution.

II. Introduction

As per the world population review, In India the crime rate is very high and continuously increasing. So, for maintaining or keeping peace in the society and security of the people we must take certain steps to control the crime rate. To deter and prevent crime we must put into effect legislative laws and punishments for any criminal act immediately. To maintain law and order in the society, the state must punish the offenders. For reducing crime level in India and for violating criminal law, there are several punishments like fine, imprisonment to death, life imprisonment etc. The capital punishment is a legal infliction of death as penalty which is the most severe and harshest punishment of the present time. There are several Process for execution of a death penalty. In history, there are different methods of execution which is totally up to the king of the state and now there are several theories has emerged on punishment and the state has the total control over that. This punishment (death penalty) is applicable in rarest of the rare cases. Cases those have the ability to terrorise the whole society like murder, rape, rape with murder, gang rape etc. at present, the capital punishment is the most controversial penal practice in the world. 

III. Definition

The terms ‘Capital’ is derived from the Latin word ‘Capitalis’ which means regarding the Head. So, the capital punishment means to lose one’s head. It serves as punishment for the most heinous, grievous, abhorrent crime against humanity. So, the death penalty is the execution of a person who has been given death sentence after finding him guilty of a crime by the competent court. About 90 nations have abolished the death penalty and stop the execution of prisoners and substitute this by imprisonment to death as the most severe punishment of all criminal penalties.

And almost same number of countries especially the developing countries have retained it. The United States is the most important example of this. Majority of US states have allowed the death penalty. And average 75 executions made every year among the US States.

IV. History and Evaluation

Since the dawn of humanity, punishment has been an essential part of the society for maintaining peace and order. During Ancient time also, the capital punishment is an important penal process. In Hindu law, Ramayana and Mahabharata the two mythological epics have mentioned the need of death penalty for assuring the priority of the king to keep society’s safe from all types of threats. The 7Buddha, Ashoka, Manu, Kautilya many respected persons of our traditions had upheld the need for death penalty. Under Muslim law, for the maintenance of Law and Order, QUR’AN permits execution by authorities other than Allah. During India’s

Mediaeval Period, in Mughal empire also, The Akbar had believed that death penalty should be imposed after thorough consideration and only applied to serious sedition offences.  After World War II, in western Europe the abolition of the capital punishment started after the defeat of the Axis Powers. After that, many countries had abolished the death penalty just like Italy in 1947 and federal Republic of Germany in 1949 and the British government in 1965. Though until 1931 in the legislative assembly of British India the issue of death penalty was not discussed. And the government doesn’t believe that it is prudent to repeal the death penalty for any crime for which it is authorised. So, after independence India adopted various laws like Indian Penal Code, 1860 and the code of criminal procedure, 1898. By the early 21^st century we can observe that most of the world’s nations had abolished the death penalty. As of 2007 Reports, 133 nations had abolished the capital punishment and only 64 nations retained the capital punishment and continued to execute. So, at present in India the death penalty continues to execute under the IPC for violent crimes however Article 21 of the Constitution ensures due process.

V. Objectives

Objects refers to the primary goals or purposes it aims to achieve within a legal and Justice framework. The key objects are – 

1. Deterrence of Crime – It is a core principle of criminal justice involving measures which is designed to discourage criminal acts by increasing the perceived risk of punishment. There are two types of deterrence, one is general deterrence and the other is specific deterrence. General deterrence means which uses punishment to warn the broader public and the specific deterrence aims to prevent an individual offender from re-offending. For the effective deterrence there must be certainty, swiftness and severity^[1]. Some important examples of deterrent measures are mandatory minimum sentences, “three strikes” laws and increased police presence^[2]. A capital punishment is certainly a more feared penalty and more severe than other penalties so, it is reasonable to assume that it will lead at least some potential murderers to decide against risking execution.
2. Retributive Justice – It is based on the principle of “an eye for an eye”. And punishment serves proportionate to the gravity of the crime and especially in cases like murder or terrorism. Key principles of retributive justice are, there must be proportionality in the severity of the punishment and the crime, the punishment should only be given to those who are guilty and legally responsible for their actions, the offender must deserve the punishment, it must reaffirm societal norms and acknowledge the offenders action were wrong, and the punishment must be seen as the offender paying their debt for the damage they have created in the society^[3].
3. Incapacitation of dangerous criminals – It means the state permanently restricting or removing the possibility of the dangerous criminals to commit any further crimes by executing them. It ensures public safety especially when the criminal is a continuous threat to society. The goals of incapacitation are public protection and crime prevention. So, the death penalty is a way or method of incapacitation^[4].
4. Restoring Public Confidence – If the state imposes the death penalty for heinous crimes, then it can reinforce public trust in the justice system. It creates a strong image of the state that the state will not tolerate any extreme violence or gross violations of law.
5. Providing closure to Victim’s families – It means after the severe loss and damages faced by the victim and the victim’s family, when the punishment is executed, it is believed to offer a sense of justice and closure to the families of victims and it affirms that legal system acknowledges the severity of their loss.

VI. Crimes punishable by death penalty 

Crimes which are Punishable by the death penalty also called Capital Crimes. Capital Crimes vary from jurisdiction to jurisdiction. It generally include serious offences like murder, rape, kidnapping, war, Etc. So, some common capital crimes are Crimes against persons like murder, assassination, terrorism, rape, kidnapping Etc; Crimes against the state like treason, espionage, sedition, and attempts to overthrow the government; and drug related crimes like Drug trafficking and drug dealing. This capital crimes may differ Significantly from country to country, as some countries have avoided capital punishment for most crimes while others retain it.

• Indian Penal Code, 1860

1. Section 121 – waging war against India.
2. Section 132 – Abatement of armed rebellion by an officer or member of the army, Navy or Air Force.
3. Section 194 – Fabricating evidence.
4. Section 302 – Murder.
5. Section 305 – Assisting or supporting a minor’s suicide.
6. Section 364 – Kidnapping.
7. Section 376 – Rape.  
8. Section 396 – dacoity with murder.

• The Commission of Sati Act 1987.
• Section 31A of NDPS Act.
• The scheduled caste and scheduled tribe act 1989.
• Army Act 1950; Air Force Act 1950 and Navy Act 1957, in these statutes also capital punishment for certain offences involved.

VII. Category of offenders exempted from capital punishment

In Bachan Singh case the Supreme Court itself has been established the rarest of rare doctrine which indicates that the death penalty is an exception not the rule so it should only be imposed in extreme cases. The court may consider several mitigating factors like offenders age, educational status, family background, income and their potential for rehabilitation and reform. So, the court must balance aggravating and mitigating circumstances; if the factors are significant the death sentence may not be imposed^[5]. The offenders typically exempted from capital punishments under Indian law includes – 

1. Minors – A offender who is still a minor that is he didn’t even attend the age of 18 cannot be executed. In India, our laws provide a separate law known as the Juvenile Justice Act 2015 that is only implemented in situations involving minors, because it gives criminals a chance to improve who hasn’t reached adulthood and has room for improvement and might be able to learn from his mistakes by being given the right environment and education.
2. Intellectually disabled – The offenders who is intellectually disabled or challenged may fall under the category of offenders who are exempted from the dead penalty When a person committing a serious crime but he is unable to comprehend the nature and consequences of their actions this is sometimes referred as he is having an intellectual disability.
3. Pregnant woman – The offenders who is pregnant is not totally exempted from the capital punishment. According to section 416 of the CrPC,1973 if the high court finds out that the women who has been regarded as guilty and awarded death sentence is pregnant then such sentence can be postponed or commuted to life imprisonment. Because hanging a pregnant woman kills both the pregnant woman and the child inside her womb. And child in the women’s womb has not committed any wrongdoing and doesn’t deserve to die. That’s why Pregnant woman fall under the category of criminals who are excluded from the dead penalty.

VIII. Procedure after Imposition of Death Penalty

After the imposition of death penalty in India the death sentence must be confirmed by the High Court followed by an appeal to the Supreme Court if needed. The convicted person may also file a mercy petition with the president or governor and if they reject it then the execution is carried out. 

1. Confirmation by High Court – court of session after imposing the death penalty must submit the case proceedings to the High Court for confirmation and The High Court have the power either to confirm it or pass any other sentence.
2. Appeal to Supreme Court – After the High Court’s order if the convict was not satisfied then he may appeal to the Supreme Court. Sometimes the Supreme Court may also grant a SLP which is Special Leave Petition under article 136 of the Constitution.
3. Mercy Petition – After all the judicial remedies if the convict was still unsatisfied then he can approach the president or the governor for clemency under Article 72 of the constitution. If there is any delay in the rejection of a mercy petition by the President, this can be a ground or lead to commute the death sentence^[6].
4. Execution – After all of these process if the High Court confirmed the death sentence and it warrant the Court of Session to execute then there will be a rope testing process where the ropes are tested by attaching a sack of sand or clay one and a half times of the prisoner’s weight to ensure they can withstand the drop^[7].

IX. Modes of Execution in India     

In India there are two modes of execution. The primary method is hanging and the alternative method is shooting. Under section 354(5) of the Code of Criminal Procedure 1973 states about hanging which means hang by the neck until dead. This process involves suspending the convict person with a noose causing death by strangulation and a broken neck. This method has been used for over a century in India. While the shooting method is reserved for individuals convicted under military laws like the Air Force Act, Army Act and Navy Act not for any civilian offences.

X. Constitutional Validation 

Capital punishment is constitutionally valid in India but with significant Safeguards only under the rarest of rare doctrine which limits it only to the most heinous crimes. As many arguments arises that capital punishment is not aligning with the Article 21 of the Constitution, we all know Article 21 of the Constitution guarantees the fundamental right to life and personal liberty, though as long as the procedure established by law is followed means if there are fair trials and have special reasons to imposing the death penalty with further safeguards then it will be valid. 

XI. Law Commission Report  

In India for a long time there has been much discussion or arguments regarding whether to retain the death penalty or not. For the first time in India Law Commission present its 35^th report, 1967, this report studied capital punishment extensively but given that India’s vastness, diversity and the need for maintaining law and order India could not risk abolishing the death penalty. The Law Commission of India again presented its 187^th report in 2003, This report covered only incidental matters and the method of execution of death sentences it did not concern about the cruciality of the constitutionality of the death penalty. The most prominent Law Commission report on capital punishment is the 262^nd Law commission Report 2015 it recommends the abolition of the death penalty for all crimes except those related to terrorism it also shows the lack of deterrence power, Systematic arbitrariness, failure of judicial oversight, ignores restorative justice. The 262^nd report was the peak of large-scale study, public consultation and deliberations on the death penalty. while the majority of the Commission reports supported abolition except for terrorism three members dissented taking a retention stance. 

XII. Instances of Past Execution

In India the execution of death penalty is very low. There are many Deaths penalty verdict issued but there are executed in very few cases. From 2004 to 2015 approximately 1500 capital punishment verdicts were issued but only four convicts were hanged. Since 2000 there have only been eight executions, on 20^th March 2020 Mukesh Singh, Vinay Sharma, Pawan Gupta and Akshay Kumar were the four convicts who were hanged together for the Nirbhaya gang rape and murder case.

• Dhananjay Chatterjee VS State of West Bengal (2004) – In this case Dhananjay Chatterjee was found guilty of rape, murder and theft by the Alipore Session Court in 1991, the Calcutta High Court and the Supreme Court both upheld his judgment, Then he submitted Mercy petitions to both President APJ Abdul Kalam and the governor of the West Bengal but both were denied, So on August 14 2004 Dhananjay was executed at 4:30 AM in Kolkata’s Alipore Central Jail.
• Mohammad Ajmal Amir Kasab VS State of Maharashtra 2012 – In this case Kasab was found guilty for killing people, committing terrorist attack and guilty of waging war against the state. He appealed in the Supreme Court stating that he may be guilty of killing people and committing a terrorist act but he is not guilty of waging war against the state, the Supreme Court rejected the appeal made by the convict and upheld the trials court’s decision to execute him. The mercy petition he had submitted was also denied by the President Pranab Kumar Mukherjee then Ajmal Kasab was put to death by hanging on November 21 2012 in Pune’s jail.

XIII. Arguments in Favor

The main reasons in Favouring capital punishments are its deterrence power, retribution and justice and preventing recidivism which advocates that executing a criminal removes the possibility of them offending again thereby protecting society from further damage from same person.

XIV. Arguments Against 

The first and foremost reason for being against the capital punishment is if there is any miscarriage of justice any innocent individuals could be wrongly convicted and executed and the irreversible nature of the death penalty makes this risk especially troubling. And ethical and human rights concerns, many considers it’s a violation of the fundamental human right to life and belief that society should not be in the business of killing. Third reason, we should not believe in the death penalty for the crime prevention in the society apart from that we also have socioeconomic conditions, education, law enforcement, this can play a more significant role in c prevention of crime.

XV. Contemporary discourse and challenges

At present the global trend has been moving towards the abolition of the capital punishment. where an increasing number of countries abolishing it’s use in India the death penalty continues to be applied. Though, there is a growing public debate about its effectiveness and fairness, many activists, scholars and legal experts are considering this issue and advocating Fair and transparent trial process and broader discussion about the overall effectiveness of the capital punishment. With the increase in population the crime rate is also increasing but for Crime prevention the death penalty likely to lost its deterrent power. So, we must take some other steps like public awareness, law enforcement and education etc. instead of capital punishment.

XVI. Case laws 

Some recent cases based on capital punishments are – 

1. The Greeshma and Sharon Raj murder case 2024 -2025 – In this case the death penalty was imposed on Greeshma for the brutal and premeditated murder of Sharon Raj. The brutal nature of the crime and the lack of provocation has led to this decision.
2. Manoj vs state of Madhya Pradesh 2022 – The judgement laid down in Bachan Singh’s case were re-asserted by the Supreme Court in the recent leading case Manoj vs state of Madhya Pradesh. A court ruled that death penalty only applies when the alternative opinion is questionably forfeited and that the Bachchan Singh principles must be applied to each specific case in light of its circumstances. The court in this case listed various guidelines for a better assessment of the parameters and scope of rehabilitation – Such as mitigating factors in the case must be considered at the trial stage; Additional data such as age, family background, past and present circumstances, education, criminal history, income, type of employment etc. should be gathered by the state; Illness or unstable behaviour must be taken into account; Behaviour inside the jail and work that is done, their involvement, these reports from the authorities should be taken. After all of that if there is something actually unusual and uncommon about the crime and in the behaviour of the prisoner, then only capital punishment can be imposed.
3. Manoj Pratap Singh vs State of Rajasthan 2022 – In this case the death penalty was imposed on a 37- year- old man for the rape and killing of an autistic Girl aged 7 ½ by the Supreme Court The court even stated that that the convict was a danger to the maintenance of order in the society after considering his criminal records and his behaviour.

XVII. Conclusion 

The death penalty has been used in India since time immemorial. It is the most common punishment in India for crime and offences that essentially violate the law. It is the present era that here the concepts like rarest of rare cases; special reasons; grievous crime; serious offences etc are taken into account before imposing the death penalty. Time has changed and the way Giving penalty has also changed. As the death penalty have been abolished by many countries but in India it is still been in use, but there are provisions laid by the SC and HC for giving Death penalty.

XVIII. References

• Statutes 

1. Indian Penal Code, 1860
2. Code of Criminal Procedure, 1973

• Online Articles 

1. Death Penalty: Contemporary Issues by Somya Deshwal. https://www.indianbarassociation.org/death–penalty–contemporary–issues/
2. Capital Punishment in India by Naveen Talawar. https://blog.ipleaders.in/capital–punishment–in–india–2/

• Others  

1. https://lawcommissionofindia.nic.in/reports/
2. https://share.google/CCcTI9Kc37gTqZRO9

[1] https://share.google/NU7su7JUfWLA890zo

[2] https://share.google/cH85i9aiXk8t4qACU

[3] https://share.google/CJUPE7pJ1i7Wx9YLE

[4] https://share.google/eIaYC7t0dYVBON7vY

[5] https://share.google/M44sOuyDULBaAlQnq

[6] https://law.unimelb.edu.au/__data/assets/pdf_file/0010/3604969/Bedi_Shruti.pdf

[7] https://indiankanoon.org/doc/128042387/