Death penalty in India: Debates and judicial trends

INTRODUCTION TO THE DEATH PENALTY

The most severe punishment in the legal system is the death penalty, also referred to as the capital punishment. It is awarded to the most heinous, grievous and diabolical crimes against society or humankind. It is the process where the perpetrator is put to death by the state as punishment for his crime. The world is divided into two regarding this punishment and so is India. This is a highly debated and contentious topic in the country because of its grim nature and violation of the fundamental and civil rights of a citizen.

HISTORIC CONTEXT

The concept of the death penalty is as old as civilization. In ancient Greece, Protagoras criticised the principle of revenge and therefore wasn’t in favour of the death penalty whereas according to Aristotle those whose rehabilitation is not possible, the death penalty is necessary. Ancient Rome and China too had capital punishment and so did India. Artha Shastra of Kautilya and Manu Smriti talk about crime which deserves this punishment. According to Arthashastra different crimes that conveyed death offences were kidnapping, assault, danger to kill, improper restriction and trespass on spots of public retreat among many others. Even epics like Ramayana and Mahabharata also talk about punishment by death as “Vadhadanda”.

The Indian penal code came into existence on 6 October 1862 under the chairmanship of Lord Macaulay. There are many provisions under the Indian penal code which prescribe the death penalty as a punishment; some provisions are punishment for murder, waging war against the government, abetment to insane and child, abetting mutiny, dacoity with murder etc. but the main goal of this punishment is to deter people from repeating those crimes and to remove crime against humankind and to provide justice to those who were wronged.

Every coin has two sides similarly this topic is also broadly divided into two arguments, those who are in favour of the death penalty because they think that gruesome crimes need equally gruesome punishment and then some who are against the death penalty because they are in favour of retention and rehabilitation, but there are many more reasons so let us take a look.

PROS AND CONS OF THE DEATH PENALTY

Pro

• It deters people from doing the same crime
• It helps in giving closure to the victim’s family
• It avoids heinous crimes in society.

Cons

• It violates the rights of people
• It is against humanity
• It is against the right to life and liberty under Article 21 of the Indian constitution
• Innocent people get incriminated many times on false pretences

LEGAL FRAMEWORK

The legislative trend in India shows that from the pre- to post-independence nothing much has changed regarding the death penalty as a crime. Substantial and procedural laws are well-equipped with capital punishment in India. Death penalty under the Indian Penal Code (IPC), 1860.

1)Murder

Sec. 302 set under chapter XVI talks about offences influencing the human body. This is the clearest notice for the death penalty in IPC as it states “Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine”[1].  So generally, whoever commits a crime against another human body will be awarded a life sentence or death penalty but it’s always case-specific.

2) Section 194

“Whoever gives or fabricates false evidence, intending thereby cause, any person to be convicted of an offence which is capital by the law for the time being in force in India shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. And if an innocent person is convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished with either death or the punishment hereinbefore described.”[2]

3) Waging war

Sec. 121 of IPC, 1860 addresses the offence of waging war against the government of India and attempts or acts of abetment related to such activities. The term “waging war” refers to any act of armed rebellion or insurrection against the government’s authority, which includes organising, arming, or leading an armed group against the state. When it comes to the security of the country, it becomes a very serious topic so its punishment is also on a serious level. The punishment for this serious offence is either the death penalty or life imprisonment, and it may also include a fine, reflecting the gravity with which the Indian legal system treats acts of rebellion or insurrection against the government.

4) Section 132

This is regarding army, navy and air force abetment, if anyone abets the committing of mutiny by a soldier or officer from the forces then they would be punished by death or life imprisonment and/or fine.

Some other criminal statutes that provide for the death penalty as a form of punishment are:

• Rape of a minor under the age of 12 or gang rape of a woman under the age of 18
• Kidnapping not resulting in death
• Unlawful Activities (Prevention) Act, 1967

JUDICIAL PARADIGM

The judicial stance on the death penalty has consistently been uncertain. However, it is important to note that the Hon’ble Supreme Court of India has periodically shaped the law and jurisprudence concerning capital punishment in the country.

Jagmohan Singh v. State of UP (1973)

In 1973, the Supreme Court of India heard the first case contesting the validity of the death penalty in India: Jagmohan v. Union of India. The death sentence does not contravene Articles 14, 19, or 21 of the Indian Constitution, according to the Supreme Court, which upheld the death penalty’s validity. Similarly, the Supreme Court in Deena vs. Union of India. The Hon’ble Supreme Court has upheld the constitutionality of the ‘Hanging’ as a method of execution in India.

Rajendra Prasad v. State of UP (1979)

The Rajendra Prasad v. State of Uttar Pradesh judgment contributed to the evolving discourse on the death penalty in India by emphasizing the need for a balanced approach, taking into account the gravity of the offence, the circumstances of the convict, and the principles of justice, equity, and good conscience. It played a crucial role in shaping the “rarest of rare” doctrine, which became a guiding principle in subsequent cases involving the death penalty.

Bachan Singh v. State of Punjab (1980)

It’s a landmark case in Indian jurisprudence that significantly shaped the Indian legal framework concerning the death penalty. The Supreme Court, in a 4-1 majority decision, upheld the constitutional validity of the death penalty. The Court held that the death penalty is not unconstitutional per se as it is a permissible form of punishment under the Indian legal system, as long as it is imposed in accordance with the “procedure established by law” as required under Article 21 of the Constitution. The court ruled that the death penalty should only be used in the “rarest of rare” cases. Courts must consider several factors before deciding whether to impose the death penalty, including the nature and gravity of the offence, circumstances of the crime, personality and background of the offender and last but not least the possibility of reform and rehabilitation of the offender.

EXECUTION OF THE DEATH SENTENCE

In India, the method of the death penalty is very old and prescribes the process of ending the life of a convict in any heinous crime, the modes of execution of death sentences are governed by the Code of Criminal Procedure (CrPC), 1973, and relevant prison manuals. There are two main types of death penalty. These are :

A) Hanging

Death by hanging is as old as Indian society. From the ancient period, criminals were punished by hanging. In those times kings used to order the execution by hanging who committed crimes in his state. Later, Britishers also used to use the same form to create deterrence and when India became independent she too took the same mode of execution. The most recent execution by this mode was of the convicts of the 2012 Delhi gang rape and murder.

B) Shooting

Another mode of execution is shooting. It is also very popular and criminals in India are also put to death by shooting and this method has been prevailing ever since the British period. So these were the two modes of execution in India but there are a lot more modes that are being used all over the world. These are:

• Lethal injection
• Beheading
• Shooting by fire squad
• Stoning
• Electrocution

C) Delays in the execution

Article 72 of the Indian constitution grants the president of India the power to grant pardons, reprieves, respite, or remissions of punishment or to suspend, remit, or commute the sentence of any person convicted of an offence. This article provides the President with the authority to exercise mercy in specific situations. Most of the time convicts keep on filing petitions under this article until years have passed and their death sentence is basically changed into a life sentence. This much delay is justice is quite literally justice denied so it’s a total waste of time and other resources of the state.

CONCLUSION

Crime by men is an extremely old event, it has solid roots in the general public and is advancing alongside the advances in society and technology. When a crime is committed, it always occurs if the perpetrators should be given a chance to redeem themselves or if should we focus on the closure of the victim and not consider the perpetrator at all because, after all, they are the ones who committed the offence. So the nature and degree of punishment for any and every crime is and could be debated. At least 752 individuals have been executed till 2015 while close to 561 inmates are on death row as of Feb 2024 so it is visible that death sentences are given to rare cases and not just every case but statistical data shows that it’s not enough for deterrence that’s because Deterrence is most effective when the punishment happens soon after the crime. The punishment’s effectiveness as a deterrence is likely to decrease with the degree to which the legal process separates it from the offence, either in terms of time or certainty. The Supreme Court of India has adequately laid out guidelines to make sure there is no confusion while giving capital punishment when someone has done a grievous crime then they have to cut what they reap and then they can’t argue that their rights under Articles 14,19 and 21 are getting violated. In India, where the hardware of the police in much the same way as the magistracy isn’t adequate to control the issues of offence conveniently, the continuation of capital discipline is unavoidable and the present judicious strides for the life and opportunity of everybody are more than agreeable.

BIBLIOGRAPHY

1. http://mlcjournal.org/wp-content/uploads/2021/04/2016-17-Vol2-Issue2-_7.pdf
2. https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/CAPITAL_PUNISHMENT_IN_INDIA.pdf
3. https://fastercapital.com/content/Capital-Punishment–Capital-Punishment-Debate-and-Arguments-for-and-Against-the-Death-Penalty.html
4. https://blog.ipleaders.in/debate-death-penalty/

[1] Sec. 302 of Indian Penal Code (IPC), 1860

[2] Sec. 194 of Indian Penal Code (IPC), 1860