Published on 3rd March 2025
Authored By: Jay laxmi Shukla
United University
Abstract
The death penalty is like no other punishment. Its continued existence in many countries of the world creates political tensions within these countries and between governments of retentions and abolitionist countries .Death is inescapable as well as reality life. The death sentence or death penalty is common throughout India. The prime hangings were those of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on November 15, 1949. India has been opposing the United Nations Resolution for an absolute worldwide moratorium on death penalty for its practice in November 2016 though in changing international situation towards abolition of death penalty as a me deterrent is termed as myth.
Definition and History of Death Penalty
Ancient and Medieval Period
Manuscript and Dharmashastras: Ancient Hindu texts like Manuscript prescribed the death penalty for particular heinous crimes considering it a method of justice and deterrent.
Islamic Law: During medieval times, under the Delhi Sultanate and Mughal reign, the death penalty was awarded for rebellion, murder, and treason on Islamic grounds.
Colony-Age
Thereby, the British colonialist formalized the death penalty in India.
The [1]Indian Penal Code, 1860 as framed and incorporated by the British imparted death penalty for a variety of crimes: murder (Section 302) and waging war against the state (Section 121).
Death sentences performed were only by hanging-an act which has continued over free India.
Post-Independence Era
Constitutional Provisions: Through independence in 1947, India retained the IPC, including provisions on the death penalty.
The[2] Constitution of India, in 1950, does not abolish but guarantees fundamental rights-including the right to life (Article 21)-implying that procedure established by law can deprive the right to life.
Debate Surrounding Death Penalty in India
Gopal Krishna Gandhi terms death penalty as a “macabre folly” in failing to persist with which there is “not just unimaginably evil but sovereignly stupid” act in his latest composition on capital punishment. Abolition, according to Gandhi, is about taking away “the most sullied symbol of a sullied system” that “mimics and perpetuates” medieval blood sports in crime and punishment. In “Abolishing the Death Penalty: Why India Should Say No”, he takes note of the increasing proportion of people calling for “collective retribution”. Still, the society of India, being one of the oldest civilizations in the world, does owe it to itself to keep the agony, at the point of execution, as low as possible. This applies especially to judicially sanctioned executions.
The [3]35th Report of Law Commission of India (1962), which was presented in 1967, recommends continuous existence of death penalty in Indian Judicial System. Maintenance of law and order: It meant that India is hardly in a position to risk the experiment of abolition of capital punishment with reference to maintaining law and order, no empirical research or such other factors. Preventive Action: A punishment would act as a deterrent and besides should also recognize and respond to society’s call for appropriate punishment in appropriate cases.
Arguments Against Death Penalty-
Risk of miscarriage of justice– Critics point out that mistakes in court decisions have led to an innocent condemnation of death.
Ineffectiveness of Deterrence: Studies have shown that even with the death penalty, crime rates do not appear to drop significantly.
Human Rights Violations: According to opponents, it violates right to life and dignity as provided in Constitution and international conventions. Statistics show that death penalty affects unequally on marginalized societies.
Moral and Ethical Dilemma: Many believe that capital punishment is essentially wrong, if not in principle then in practice.
[4]Cesare Beccaria, a utilitarian philosopher and reformer, was against death penalty because he considered it neither necessary nor excessive and pointless. He also believed that state has no right to take lives.The objections to the death penalty in India consist of: Danger of Wrongful Executions: Deficiencies in the legal system increase the chance that innocent people could be mistakenly put to death. Ineffectiveness as a Deterrent: Studies indicate that capital punishment fails to effectively discourage violent crime, with murder rates staying the same. Human Rights Violations: The capital punishment is seen as an infringement on the essential human right to live and is frequently regarded as a cruel and atypical form of punishment. Significant Expenses: Cases involving capital punishment require more taxpayer funds than those involving life sentences. Opposing the Worldwide trend
As per the Amnesty Report, by the conclusion of 2021, more than two-thirds of nations globally had eliminated the death penalty either legally or in practice. The Poor Suffer the Most: In India, the consequences of the death penalty primarily impact the impoverished. The quantity of uneducated and illiterate people facing the death penalty greatly surpasses that of their educated peers. It is observed that 74.1% of individuals on death row in India originate from economically underprivileged backgrounds. Enforcement of the Death Penalty: Statistics indicate that the Supreme Court has confirmed the death penalty in merely 7 instances during the last 6 years. The enforcement of this punishment not only induces pain and trauma, but the extended delay in reaching a verdict on the sentence considerably worsens the suffering.
Judicial Patterns in Capital Punishment Cases.
The Supreme Court of India, being the top court in the nation, has issued important rulings concerning the death penalty. Throughout the years, the Court has examined the constitutionality of the death penalty procedure and associated matters, leading to numerous significant decisions. For the last 50-60 years, the constitutionality of the death penalty has been a persistent issue discussed in the Supreme Court, with claims indicating it goes against the
, with arguments suggesting it contradicts the provisions of the Indian Constitution. A life sentence is deemed invalid and infringes upon Articles 14 and 21 of the Constitution due to the lack of clear legal guidance on when to impose a life sentence versus a death penalty.
Since the 35th Law Commission of India report in 1967, which supported the retention of the death penalty, there have been significant changes. The Law Commission’s report, however, recommended abolishing the death penalty for all crimes except those related to terrorism and waging war. This recommendation followed a reference from the Supreme Court in the cases of Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra and Shankar Kisanrao Khade vs. State of Maharashtra, aimed at fostering a contemporary and informed discussion on the death penalty in India.
Higher courts are increasingly overturning death and murder convictions. Appeals to higher courts are leading to the reversal of death sentences and life terms imposed by trial courts in murder cases, often due to errors, subjectivity, or emotional considerations. These courts are leaning towards a ‘reformative theory’ of punishment, which posits that punishment should be more about rehabilitation than deterrence. This theory likens crime to a disease that cannot be eradicated through execution; rather, it should be treated and rehabilitated.
Landmark Supreme Court Judgments
The Supreme Court of India, as the highest judicial authority, has made significant rulings regarding the legal, procedural, and constitutional aspects of the death penalty over the last 50-60 years. The constitutionality of the death penalty has often been contested, mainly on the basis that it infringes upon provisions of the Indian Constitution, especially Articles 14 and 21. Nevertheless, the Court has consistently upheld its legitimacy, asserting that the imposition of the death penalty does not conflict with the Constitution. Justice Bhagwati, however, expressed dissent, arguing that Section 302 of the Indian Penal Code, which permits the death penalty as an alternative to life imprisonment, is unconstitutional due to the lack of legislative guidelines, thus violating Articles 14 and 21.
Constitutionality of Death Penalty
In Jagmohan Singh v. Uttar Pradesh, the validity of the death sentence was challenged for the first time on the grounds that it violated Articles 19 and 21 because it did not provide any procedural safeguards. It was argued that the procedures outlined in the Criminal Procedure Code were limited to determining guilt and did not extend to the imposition of the death penalty. The Supreme Court ruled that the decision to impose a death sentence is made in accordance with the procedure established by law, concluding that capital punishment did not violate Articles [5]14, 19, and 21, and was therefore constitutionally valid. Following this ruling, the constitutional validity of the death sentence was generally accepted.
Rajender Prasad v. State of Punjab,
Justice Krishna Iyer stated that capital punishment could not be justified unless it was demonstrated that the offender posed a danger to society. He argued that granting judges the discretion to choose between a death sentence and life imprisonment based on “special reasons” under Section 354(3) of the Cr.P.C. would violate Article 14, which prohibits arbitrariness.
Bachan Singh v State of Punjab
The Supreme Court, by a 4:1 majority, has overruled Rajender Prasad’s decision and held that the provision of the death penalty under Section 302 of the IPC, as an alternative punishment for murder, does not violate Article 21. Article 21 of the Constitution recognizes the right of the State to deprive a person of life or personal liberty in accordance with a fair, just, and reasonable procedure established by valid law.
Rarest of Rare Cases
As previously mentioned, following the Cr.P.C. of 1973, the death sentence is considered an exception, while life imprisonment is the norm. Therefore, according to Section 354(3) of the Cr.P.C., it can be stated that the death sentence should only be imposed in special cases. The apex court modified this terminology in the Buchan Singh case and observed: “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” The determination of whether a case falls under the category of rarest of rare cases is left entirely to the court’s discretion. However, the apex court has established several principles to consider when deciding on the question of sentencing. One crucial principle pertains to aggravating and mitigating circumstances. The court has maintained that, in deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case must be drawn. Full weight should be given to the mitigating circumstances, and if, after considering these, the court believes that justice would not be served by any punishment less than the death sentence, it may proceed accordingly.
Machhi Singh and Others vs. State of Punjab
on July 20, 1983, the court reiterated: “In order to apply these guidelines, inter alia, the following questions may be asked and answered: (a) Is there something uncommon about the crime that renders a sentence of imprisonment for life .
Conclusion
The delay in carrying out a death sentence after it has been finalized at the end of the judicial process is entirely unconstitutional, as it amounts to torture and unlawful detention, violating Article 21 of the Constitution of India. On the other hand, factors such as the severity of the crime, the extreme cruelty involved, or the severe consequences for society resulting from the offense are not pertinent after the Constitution Bench’s ruling in Buchan Singh vs. State of Punjab (1980) 2 SCC 684, which stated that the death penalty should only be applied in the rarest of rare cases. This implies that all death sentences are inherently the most heinous and exceptional. The legal implications of the extreme depravity of the crime are fulfilled once the court imposes a death sentence for that crime. The law does not mandate an additional period of imprisonment for any exceptional depravity associated with the offense. Therefore, the facts and circumstances of the case must be approached with great care. Retribution holds no constitutional value in our nation. The accused is covered de facto by the Constitution and it is the duty of the court to that ensure this protection is not violated. Hence when the judiciary intervenes in such cases, it does so to ensure that the de facto protection of the Constitution is not violated even to the convict facing the death sentence.
References
[1] Indian penal code section 302,121.
[2] Indian Constitution, section 21.
35th law commission report of India
[4] Cesare Beccaria philosophy.
[5] Indian constitution, section ,14,19,21
[i] Organization, https://reprieve.org, 10 January,,2025
Organization, https://en.wikipedia.org, 10 January t,2025
Commercial, https://www.drishtiias.com, 10, January,2025
(Santosh India: Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498)
(Jagmohan Singh) ,V. (State of UP), (1973)
(Rajendra Singh) ,V. (State of UP),(1979)
(Bachan Singh), Vs (State of Punjab), (1980)2 SCC 684
(Machhi Singh) , V. (State of Punjab), (1983) SCC 470
(Shankar Kisanrao Khade) vs (State Of Maharashtra )on 25 April, 2013.
https://blog.ipleaders.in 10 January,2025
