Death penalty in India and Judicial trends

Abstract

Death penalty is been a mode of punishment which is practiced in various nations which have been established to achieve certain public welfare maintenance goes but however there is always been a sets of controversies regarding this penalty as it has the caliber to terminate an individual’s life. There are various studies being conducted across several decades to simply emphasize the idea of deterrence came out of the Capital punishment as it works as a weightage that whethera there is a need of applicability of such brutal punishment in contemporary society. 

The  Conceptualization of Death Penalty

The concept of capital punishment had its significance in different civilizations and various settlements. During 14^th century death penalty was an engraved punishment in The Code of Hittite. Similarly by the time of 18^th Century, The Code of Hammurabi of Babylon set the punishment of Death sentence for 25 specified crimes turning out to be the one of the first vested death penalty provisions. As the methodology of executing these death penalties in these periods varies from burning the person alive, drowning, crucifixion and the punishment of impalement had its own deterrence frequency. After 10^th century[1], The Great Britain opted the mode of hanging for the execution of death sentence the most suitable one and has been relied to it till this date.

Advancement of Capital Punishment in India

In Ancient and Medieval India, the concept of death penalty was mainly based on the idea of repentance and was focused on the retributive terminology of the punishment as it goes for an eye for an eye. It was regarded as the most grievous form of punishment as it was given only to a person who has done severe offenses, such as rape, murder, treason adultery and etc. During the era of Delhi Sultanate and Mughal Empire, there were several mode of death sentence. Such as, to crush the head of criminals under the feet of an Elephant or to throw the offenders in a pit of hundreds of snakes or to skinned them alive.[2]

After the growth of British colonialism in India, the government passed the Indian Criminal Code in the year 1861 which had the provisions for punishment of death sentence against the offence of murder however it was later ratified as a mode of punishment after the independence of India in 1947 which is in the existence till this date.[3] According to Project 39-A[4] on Capital Punishment at National Law University, New Delhi, till the year 2020 there were 404 inmates liable to death sentence and 488 inmates till the year 2021. The report also collated that there are total 752 prisoners who have been executed from 1947 to 2020. Till  this date there are 78 countries who have retained the death penalty as means of punishment only in the case of the ‘rarest of the rare cases’ and  for any ‘alternate reasons’ which is not opined by both the Parliament and the Judiciary.

Death penalty is a major aspect of human solicitude which has already given an everlasting confrontation and debate and till this date such debates has not winded up any conclusive and methodical terminologies which could have fulfilled any potent effect  on the both of sides of the debate.as the main conflict is about its validity in consonance with the Parent Act and Public Moral interests in different countries across the globe. The arguments against death penalty was triggered in England and Europe because of the several works of utilitarians such as Jeremy Bentham and Cesare Beccaria who termed death punishment is in itself is an evil which is adequate to repress the peril of the crime and no imprudent punishment is needed.[5]

Overview of Death Penalty in India

As if we take a look in the Indian legal system, the conflict in regards to the validity of the death sentence as a punishment has been going for a while. In the year 1956, A Bill was introduced by Shri Mukund lal for the Abolition of Death Penalty as a mode of punishment but after a long debate in the houses it was later withdrawn. After this in the year 1967, the Law Commission of India published the 35^th report known as “Capital Punishment” which was chaired by Justice J.L Kapur in which various consequences were enshrined as in the case of abolition of death penalty due to which the report concluded that in the absence of Death sentence the deterrent essence of the punishment would be vanished as it could result in the form of deterioration of law and order.[6]

Judicial Scrutinization of Death Penalty in India

In in the case of Jagmohan Singh v State of Uttar Pradesh,[7] the constitutionality of Death Penalty was confronted before the Supreme Court of India as . It was contended in the court that “right to live” is an inherent right given under Article 19(1) (a) to (g) of the Indian constitution and the procedure of Capital punishment lacks legislative standards and has an essence of excessive delegation as well as it lacks in procedure established by law due to which it hampers the life of a mortal and violates Article 21 of Indian Constitution.[8] The five Judges bench rejected the plea and held that the death penalty is not unreasonable and is in the consonance with the Article 19 and Article 21 as it consist the essence of public interest.

After this again in the case of Bachan singh v State of Punjab[9], the question regarding the validity of death sentence arose before the Supreme court as three major arguments was laid before the court. The first contention stated that death penalty violates Article 19 of constitution as it bars the right to life and degenerate the dignity of an individual. The second contention prescribed a substituted form of punishment under Section 302 of Indian Penal Code,1860[10] as it contravene Article 21 of constitution as policy laid down in Section 354(3) of Code of Criminal Procedure ,1973[11] provides an uneven discretion to judiciary without any requisite legislative directions. And the third contention was that India as a member of Stockholm Declaration of 1977[12] is under the obligation to abolish the Death Penalty. The four judges bench endorsed the recommendations from 35^th report of law commission and negated all the contentions made against the death penalty. As the court held that the discretion granted under section 354(3) of Code of Criminal Procedure,1973 has to be within the judicial limits in regards of several factors due to this it was never been tried to achieved by the Government and could not be even expected from the courts. Hence it was declared that Section 302 of Indian Penal Code 1860 and Section 354 of Code of Criminal Procedure, 1973 does not violate Article 21 and it even does not contravene the terms of Stockholm Declaration of 1977 as the instrument stands against the arbitrary usage of the Capital Punishment and not regarding the Abolition of Death Penalty as the terms suggests that the capital punishment must be executed in the case of severe and heinous crimes.

In the case of Macchi Singh v. State of Punjab[13], The Apex court held major guidelines for the classification to ascertain the requisite which enable a case to be regarded as ‘the rarest of rare case’. Which are as follows :

1. The nature of accomplishment of murder help to achieve clarity be analysing the gore and severe state of murder.
2. The intention and motive behind the murder plays an important role by measuring any brutal and cruel reasons behind such offence.
3. The consequences of such murder will also be taken in the record to consider the damages occurred due to such commission.
4. The appearance of the victim will be recorded to analyse his/her vulnerability during the commission of crime.

Yet another desperate attempt was executed in the case of Shashi Nayar Nagar v. Union of India[14] to turn out death penalty constitutionally invalid. However the court held that, the capital punishment has an deterrent efficiency in it as it thrive to serve for public welfare and as per the condition of law and order in the state which is in a deteriorated condition is getting corroded day by day due to which the existence of Capital punishment is highly necessary.

Conclusion

The number of never ending debates, arguments, and conflicts in the Indian legal system is bind up with full of complexities and inevitable turmoil has to be analysed by taking several factors in the mind. As the Criminal justice procedure needs to be developed as soon as possible to determine the situation and necessity in accordance with the welfare of societal interests. Even though the imprudent mode of punishment should also be taken into consideration by the means comparative study of constitutional law between various different developed nations as it helps to promulgate statutes which will alternatively be effective. As it is been said for ages that Prevention is better than cure and it is very much needed to prioritize the efficiency of the administrative and legal machinery at its fullest. At last, It must be always kept in mind that no one has the right to take another’s life until or unless it is under the compulsion of law as death sentence occurs only if there is a case of lacking in legal machinery but even though it is going to take several years to come to a situation where there are chances for the abolition of capital punishment from Indian penology but till then the government could not jeopardize the lives of  thousands of people against the life of a perpetrator who is incompetent to be in an organised civil society because of which the death penalty is needed to be in existence of Indian judicial system.  

References

[1] Tymya Bullard, History and Experience of Th Death Penalty: Is It a Violation of Human Rights?, SSRN (2021).

[2] Dr. Shaikh Musak Rajjak, Justice and Punishment during Mughal Empire (Based on Foreign Travelogues), 3 International Journal of Science and Research (IJSR) (2014).

[3] Ayushi Aggarwal & Taboprata Pakrashi, Judicial Hanging in India: A Rational and Humane Mode of Execution, ILI Law Review (2022).

[4] Project 39A, (Dec. 18, 2021), https://www.project39a.com/.

[5] Ahmed Siddique & Lotika Sarkar, Criminology Penology and Victimology (8th ed. 2017).

[6] Law Commission of India, 35th Report: Capital Punishment (1967)

[7] Jagmohan Singh v. Uttar Pradesh, SCC (Supreme Ct. India 1972).

[8] INDIA CONST. art. 19 and art. 21

[9] Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684 (India)

[10] Indian Penal Code, § 302, No. 45 of 1860 (India)

[11] Code of Criminal Procedure, § 354(3), No. 2 of 1974, § 354(3) (India)

[12] Declaration of the United Nations Conference on the Human Environment, June 16, 1972, U.N. Doc. A/CONF.48/14/Rev.1

[13] Macchi Singh v. State of Punjab, SCC (Supreme Ct. India 1983)

[14] Shashi Nayar Nagar v. Union of India, (1992) 1 SCC. 96 (India)