Published On: 14th December, 2024
Authored By: Parvika
Symbiosis Law School, Noida
Introduction
Capital punishment is a hot topic of debate in India all day, any day. The abolitionists and the anti-abolitionists follow two very different perspectives, concisely what they term as human empathy and a sense of justice. The same arguments had, no doubt, reached the prosecution and defense of Indian Courtrooms. As a result, they were also subjected to the judicial authority’s scrutiny and the verdict on the same reflected what was held to be correct by the Indian judiciary. This involved both, the judges siding with what was the legally “correct” view of the two, as well as striking a balance between the two factions through interpretation and innovation.
This paper aims to trace scrutinize the same, the evolution of judicial trends with regard to the jurisprudential debates on the death penalty that infiltrated the courtroom.
Analysis
Pre – Independence India
Taking a look from ancient to medieval India, it can be seen that the death sentence has been an acceptable form of punishment consistently throughout, whether it was in the Hindu smritis or the Islamic sharia. However, a debate with regards to its legitimacy was not known to be raised until rather recently, i.e. India right before Independence.
The private member’s bill was proposed by Shri Gaya Prasad Singh for scrapping the death penalty for offenses against the Indian Penal Code (IPC). His effort, however, did not sail through as he had opposition in the House from the then Home Minister. The British government is believed to have been against the move of scrapping capital punishment, due to the fact that it maintained that capital punishment should remain for a particular range of crimes. As noted by Debra Morris, Sir John Thorne Home Minister-additionally posited that it was unwise to abolish it for offences where it was currently in use[1].
The IPC that had been enacted in 1860 and the Code of Criminal Procedure, 1898 were both in place as of the time of India’s independence. Section 367(5) of the CrPC stipulated that even if the offense was such that there could be a sentence of death, courts must write alongside the judgment the explanation as to why capital punishment was not preferred[2].
It is very indicative of the fact that, for the offenses punishable with death, such a sentence was the norm whereas any lesser sentence was a deviation from what the makers of the code envisioned. A look at the present scenario indicates that the stance of the Indian judiciary has evolved from this.
Post-Independence India: Several key changes
Abolition of previous provision and re-enactment of CrPC
Post-Independence India saw many great turns taken by the judiciary and legislature, which began by the reversal of the previous equation on capital sentencing as early as 1955. This happened in two parts[3]:
- The abolition of section 367 (5) in 1955, freed the judiciary from the burden of explaining their reason for letting the convict live.
- Re-enactment of CrPC in 1973, with section 354(3) now requiring the judges to verbalize in their judgments awarding capital punishment, the exceptional reasons for preferring it to life imprisonment.
Not only is this a complete inversion of the original code maker’s view, with life being the norm and death an exception, but the idea of explicitly providing reasoning that makes the case “exceptional” enough to warrant a death sentence shows that such deviation can only be resorted to in cases which cannot be fairly judged by a jail term.
The re-enactment also added the possibility of post-conviction hearing for the convict, safeguarding his life further.
Debates on Constitutional Validity: Jagmohan Prasad Case
A common tactic of the abolitionists is the constitutionality of capital punishment, which has been put to litmus tests in the form of fundamental rights in Articles 14, 19, and 21. Article 21 is specifically held to be violated as the right to life is and personal liberty is grossly violated and the very purpose of articles 21 and 14 defeated when it can be taken away arbitrarily by the judges[4]
This argument is countered by the fact that absolutely no fundamental right is especially including article 21, absolute; that the state can take away one’s life, given a fair, just, and reasonable procedure established by law, the anti-abolition faction argues, has been conveyed by the article itself[5]since its very conception: there was never a right article 21 given without a reasonable procedure to rescind the same.
For a restriction of Article 21 to be imposed within the “procedure established by the law” which the Supreme Court formulated in K.S. Puttaswamy[6], it has to fulfill three criteria:
- The restriction should be for a legitimate state interest,
- Be proportionate, and
- Be the least invasive.
This test, if applied is capable of turning the tide either way. A case can be made that while it serves a legitimate state goal, it is not the least invasive practice as the concept of “whole life” imprisonment is an alternative[7]. It can be further argued that the state goal of “deterrence” is not met if the fear of death is not there, which makes “whole life” an unqualified practice and so on.
The first serious challenge to the death penalty was in the case of Jagmohan Singh v. State of Uttar Pradesh (1973[8]), where it was urged that capital punishment violated Articles 19 and 21, as it was admittedly not a part of a proper legal procedure. Nevertheless, the Supreme Court declared capital punishment valid and held that judges, in their discretion, on the basis of the facts and circumstances of each case, decide in the trial between life imprisonment and sentence to death as envisaged by the procedure provided by law[9].
Then there was the case of Rajendra Prasad v. The State of U.P. (1979)[10], where Justice Krishna Iyer had pleaded for the abrogation of 302 IPC based on the fact that giving a judge arbitrary power over life and death was violative of article 14 and 21, and held that it should only be awarded lest the criminal is a “danger to the society”.
A Re-examination of this view occurred in Bachan Singh v. State of Punjab(1980)[11], which held that death can be awarded in exceptional cases wherein life imprisonment would be grossly inadequate, and hence unjust on its own. The Court held that the death sentence imposed under Section 302, the Indian Penal Code does not infringe Article 21 if it is the result of a fair, just, and reasonable procedure, reiterating the judgment of Jagmohan Singh.
However, the fact that the death sentence was held valid does not mean that the same was true for all its components. In the case of Mithu v. State of Punjab (1983)[12] it was held Section 303 of the IPC was unconstitutional because it mandates imposing capital punishment upon the convicts, who had been sentenced under any law for life imprisonment, which abrogated judicial discretion. Instead, it affirmed that it was arbitrary and violative of Article 14 and Article 21 to make some laws providing capital punishment without considering the personal case[13].
Taking due care in awarding the sentence: Doctrine of Rarest of Rare
Another dig is taken at the court’s power to award death sentences by the abolitionists by questioning its lack of clear specification as to when such can be awarded. They argue that this gives the court arbitrary power to provide a death sentence to someone who may have committed the crime under certain circumstances, say murdering someone while in self-defense, or someone who is capable of reform[14], for example, a wayward youth, or just out of pure discrimination[15]. Not providing a second chance to such people is a waste of human life, cruel, and unjust, they point out.
This risk to human life is pacified by the court by application of the doctrine of rarest of rare, which demands concrete evidence before awarding the sentence.
The landmark case by the Supreme Court of India, Bachan Singh vs. State of Punjab (1980)[16], identified the foundational principles that governed the determination of the application of the death penalty, setting up a framework that followed its constitutionality and necessity in specific circumstances.
This doctrine prescribed broad criteria for determining when capital punishment would be appropriate, thus balancing the severity of the offense with the possibility of rehabilitation[17].
The Court began using the concept of weighing aggravating (nature of the crime, such as its cruelty or viciousness, the use of arms causing death, and intents) and mitigating circumstances (background and the characteristics of the offender, such as being under duress, provoked, or personal deprivations.)[18] before pronouncing a sentence. It held that death should be awarded only when there is no scope for rehabilitation.
Further, in Macchi Singh vs. the State of Punjab[19], the doctrine was concerned with the principle of fairness, where capital punishment should be reserved for a crime so grave and the acts of the offender so reprehensible that nothing else would be adequate.
There is an excellent example of Kehar Singh vs. Union of India[20]. The court commuted the death penalty on Kehar Singh for his complicity in the assassination of then the Prime Minister of India and ruled that the crime “squarely fell within the “rarest of rare” doctrine. The killing of a high-ranking public figure, perpetrated in a conspiratorial manner by more than one actor, was considered by the Court as not being an ordinary crime but rather something that infringed on the body of national security and social order.
Debate on Deterrence of Criminals
An anti-abolitionist argument is that capital punishment is very crucial in offering justice to the victim’s family[21]. Though death cannot be reversed once it has occurred, the effectiveness of capital punishment may indeed close the case with some semblance of mental peace and consolation to the aggrieved family.
However, It must be duly noted that while repudiation was a valid form of punishment in medieval India, the present Indian legal system has denounced the practice of vengeance. Here, the penalties are meted out on the principles of deterrence, and not revenge.
While vengeance tends to try to seek retribution for the sake of personal revenge, the death penalty, on the other hand, serves a greater goal-it tries to scare others off from committing crimes as egregious as those committed, that they run the risk of their own lives and can be put to death for the same.
The Death penalty has been justified by the judiciary in the same view, that it is done for deterrence.
The court had held in Bachan Singh[22] that this penalty serves the purpose of curbing people, protecting society from those who are beyond reforming, and preventing similar crimes from occurring in the future.
Further, in Shabnam vs. State of Uttar Pradesh (2015)[23], where a woman was convicted for conspiring to murder seven members of her family, the Court reiterated again the deterrence factor, as capital punishment also acted as a necessary warning to the society in case of gruesome crimes.
The Abolitionist critique for this is the failure of the death penalty to prove to be any more efficient in causing deterrence than a life sentence[24]. There has been no proof found that the death penalty serves this purpose in multiple studies. Since no overall conclusive proof nor disproof was found in this regard, this leaves the efficiency of the penalty in ambiguity.
Risk to innocent accused Inadequacy of other sentences and Concept of “whole life”
Another common argument by the abolitionists is that the risk of awarding a death sentence is that a case can be reopened and a judgment overruled, say by the discovery of new evidence that proves the convict’s innocence. In the case of capital punishment, the risk would mean the death of an innocent person, which is an injustice of the most grave and irreversible kind. They have instead advocated that life sentences are just useful in confining the convict[25].
Now, one issue with a life sentence in India is it is susceptible to be reduced to a 14-year prison term, which shall be highly inadequate for a person convicted of any gruesome crimes[26], the anti-abolitionists rejoin. Shall the person actually be guilty of a gruesome crime, a 14-year sentence will do little in confining him, and release after that time is a risk that cannot be taken for the safety of society.
The Supreme Court responded to this concern over death sentences by introducing the option of “whole life” imprisonment or even a fixed-term life sentence in the case of Swamy Shraddhanand[27]. It recognized a gap between the two extremes which is a death sentence and life imprisonment that typically lasts for about 14 years with remission. In cases falling short of “rarest of rare,” a life sentence would appear scanty while the death penalty is perhaps too draconian. The Court thus proposed as a possible alternative a life sentence without remission or for some years. This gives a better option, allowing severe punishment without giving the death penalty in borderline cases.
The abolitionist faction, taking note of this, further argues that while the death sentence is a feasible form of punishment in contrast to this, there is no 100% guarantee that an innocent man will not be hanged.
A point that can be used against it is that the prudent sense in which the court awards the death sentence, alongside the practice of commuting the sentence to imprisonment in appeal, and the provision of pardon by the president, has provided a safeguard to innocent men, not in theory but in practicality.
So while there are cases in the U.S. where an accused was exonerated after their deaths, or horrifying incidents where those of unsound mind or even minors were executed, India is yet to see any such cases, due to the precaution taken by the judiciary against it. While as of October 2024, more than 500 persons are on death row, India so far has only seen 57 death sentences being carried out since 1947[28], the latest being the hanging of the infamous Nirbhaya[29] case convicts four years ago, who were all hanged on bases of concrete and irrefutable evidence.
Conclusion
While the abolitionist concerns are legitimate, there has been no real harm caused by capital punishment. The judiciary has been careful about awarding capital punishment with the adoption of doctrines like “the rarest of rare” and giving weight to mitigating factors. In addition, presidential pardons and post-conviction hearings lower the risk of innocent persons being executed to the point no hue and cry has been raised over any unfair execution since the Indian Republic’s birth. Hence, the judiciary’s careful application of the death penalty demonstrates its departure from the notion that is always considered a detriment-it was also necessary for certain instances, such as for safeguarding society from a person who is a danger to be let live, say a terrorist or a cold-blooded killer. No one’s life should be risked to live a dangerous element, which makes controlled measures of capital punishment necessary.
Reference(s):
[1] Varun Agarwal, Gayatri Srivastava, Ishika Jain & Vikram Singh, ‘A Debate on Ethical and Moral Aspects Surrounding Capital Punishment’ (2022) 5 Int’l JL Mgmt & Human 1531
[2] Ravina Kumari, ‘Capital Punishment in India’ (2021) 2 Law Essentials J 324
[3] Ravina Kumari, ‘Capital Punishment in India’ (2021) 2 Law Essentials J 324
[4] Varun Agarwal, Gayatri Srivastava, Ishika Jain & Vikram Singh, ‘A Debate on Ethical
and Moral Aspects Surrounding Capital Punishment (2022) 5 Int’l JL Mgmt & Human 1531
[5] Sakshi Pandey, ‘Capital Punishment in India: Constitutional Validity of Capital Punishment’ (2021) 2 Law Essentials J 169
[6] K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
[7] Varun Agarwal, Gayatri Srivastava, Ishika Jain & Vikram Singh, ‘A Debate on Ethical
and Moral Aspects Surrounding Capital Punishment (2022) 5 Int’l JL Mgmt & Human 1531
[8] (1973) 1 SCC 20
[9]Nafiz Nasrin, ‘Capital Punishment in India: Constitutional Validity’ (2023) 6 Int’l JL Mgmt & Human 3120
[10] (1979) 3 SCC 646
[11] (1980) 2 SCC 684
[12] (1983) 2 SCC 277
[13] Sakshi Pandey, ‘Capital Punishment in India: Constitutional Validity of Capital Punishment’ (2021) 2 Law Essentials J 169
[14]Sakshi Pandey, ‘Capital Punishment in India: Constitutional Validity of Capital Punishment’ (2021) 2 Law Essentials J 169
[15] Varun Agarwal, Gayatri Srivastava, Ishika Jain & Vikram Singh, ‘A Debate on Ethical
and Moral Aspects Surrounding Capital Punishment (2022) 5 Int’l JL Mgmt & Human 1531
[16] (1980) 2 SCC 684
[17] Ravina Kumari, ‘Capital Punishment in India’ (2021) 2 Law Essentials J 324
[18] Ravina Kumari, ‘Capital Punishment in India’ (2021) 2 Law Essentials J 324
[19] (1983) 3 SCC 470
[20] (1988) 3 SCC 609
[21] Varun Agarwal, Gayatri Srivastava, Ishika Jain & Vikram Singh, ‘A Debate on Ethical
and Moral Aspects Surrounding Capital Punishment (2022) 5 Int’l JL Mgmt & Human 1531
[22] (1980) 2 SCC 684
[23] (2015) 6 SCC 632
[24] Varun Agarwal, Gayatri Srivastava, Ishika Jain & Vikram Singh, ‘A Debate on Ethical
and Moral Aspects Surrounding Capital Punishment’ (2022) 5 Int’l JL Mgmt & Human 1531
[25] Sakshi Pandey, ‘Capital Punishment in India: Constitutional Validity of Capital Punishment’ (2021) 2 Law Essentials J 169
[26] Ravina Kumari, ‘Capital Punishment in India’ (2021) 2 Law Essentials J 324
[27] Swamy Shraddananda v. State of Karnataka (2008) 13 SCC 767
[28] Mehul P. Barot, Meet D. Lukka & Keyur V. Golani, ‘Capital Punishment in India’ (2020) 11 Indian JL & Just 260
[29] Mukesh & Anr. v. State (NCT of Delhi) (2017) 6 SCC 1
