Death Penalty in India: Debates and Judicial Trends

INTRODUCTION:

Over the centuries, many dynasties have risen and fallen, but one constant has been the use of the death penalty as a method of administering justice. Capital punishment, or the death penalty, continues to raise complex concerns, particularly regarding its effectiveness in eradicating crime and criminals from society. While there has been a global movement toward the abolition of the death penalty, India has yet to align with this trend. Consequently, the irreversible nature of such punishment becomes a serious concern—once an error is made, it cannot be undone. Many critics argue that the death penalty is inhumane, ineffective, and essentially amounts to a public execution. Michigan was the first state to abolish the death penalty in 1846, followed by Portugal and Venezuela in 1867. The United Nations also supported the global abolition of capital punishment during the drafting of the Universal Declaration of Human Rights in 1948.

HISTORY OF CAPITAL PUNISHMENT IN INDIA:

The British colonization of India significantly transformed the legal system, introducing elements of English common law. The Indian Penal Code (IPC), enacted in 1860 under British rule, became the foundation of India’s criminal justice framework and remains largely in effect today.

During colonial rule, capital punishment was widely utilized as a tool to suppress dissent and maintain control. Many Indian freedom fighters, including iconic figures such as Bhagat Singh, Rajguru, and Sukhdev, were executed by the British authorities for their involvement in the independence movement.

Crimes Punishable by Death in Modern India

The Indian Penal Code still prescribes the death penalty for specific grave offences, including:

• Murder (Section 302): The most frequent offence for which the death penalty is awarded.

• Terrorism-related offences: These include crimes such as waging war against the government (Section 121) and acts of terrorism under special laws like the Unlawful Activities (Prevention) Act.

• Rape leading to death: Following the 2013 Delhi gang rape incident, amendments to the IPC now allow for the death penalty in cases where sexual assault results in the victim’s death or where the offender is a repeat offender.

• Kidnapping and ransom: Section 364A permits capital punishment when kidnapping for ransom results in harm or death.

• Drug trafficking: Under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, repeat offenders involved in significant drug trafficking activities can face the death penalty.

Other legislations, such as the Army Act, 1950, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, also contain provisions for the death penalty in specific situations.

Recent Trends and Cases on Capital Punishment

In recent times, several high-profile cases have reignited discussions around the death penalty in India. The execution of Yakub Memon in 2015, due to his role in the 1993 Mumbai bombings, brought capital punishment back into public discourse. Similarly, the Nirbhaya gang rape and murder case led to the execution of four convicts in 2020, with the majority of public sentiment supporting the death penalty for such horrific crimes.

As of the end of 2023, Indian trial courts handed down 120 death sentences, and a total of 561 individuals remained on death row.

OPINION ON DEATH PENALTY:

Public opinion on the death penalty is generally divided. One group believes that individuals who commit heinous crimes deserve capital punishment, while the other advocates for rehabilitation and believes that taking a life should never be within human jurisdiction. The most common justification for retaining the death penalty is its supposed deterrent effect—that it helps prevent murder by instilling fear. As a developing nation grappling with increasing crime rates, India finds itself at the crossroads of moral and practical considerations in this debate.

LANDMARK JUDGEMENTS and “Rarest of Rare” Doctrine

Numerous legal scholars argue that retaining the death penalty in Indian criminal law infringes upon the Right to Life guaranteed under Article 21 of the Constitution.

Same day Sentencing in death penalty cases:

Santa Singh v. State of Punjab

In the 1976 case of Santa Singh v. State of Punjab, the appellant was convicted of murdering his mother and second wife. The trial court found him guilty under Section 302 of the Indian Penal Code and sentenced him to death on the same day. Unfortunately, the appellant’s legal counsel was absent during the sentencing, and the court failed to provide the mandatory opportunity for the accused to be heard regarding the sentence, as required under Section 235(2) of the Code of Criminal Procedure, 1973. The appellant himself did not raise this issue, nor was it addressed in the High Court.

Observations:

Section 235(1) mandates that a court must first determine the guilt or innocence of the accused. If the accused is found guilty, they must then be given an opportunity to present factors relevant to the sentencing. Only after hearing the accused can the court impose a sentence.

The phrase “hear the accused” in Section 235(2) implies that the accused should be allowed to present all relevant mitigating circumstances. This right is not limited to an oral submission but may also require time to gather evidence. It was emphasized that failure to comply with this requirement is not a mere procedural irregularity under Section 465 but a substantial lapse affecting the fairness of the trial.

In his concurring opinion, Justice Fazl Ali stated that allowing the accused time to present evidence related to sentencing may necessitate an adjournment, ideally not exceeding 14 days. The case was ultimately remanded to the trial court to allow the appellant a fair opportunity to address the sentencing phase.

CONCLUSION:

The central issue in the debate surrounding the death penalty in India is not merely whether the criminal should be eliminated but whether the crime itself can be effectively addressed. The overarching aim of criminal law is to create a peaceful and orderly society, and it remains debatable whether this objective is best served through capital punishment.

This complex and sensitive issue warrants continued dialogue and thoughtful consideration. A thorough examination of alternatives is essential to identify a solution that suits India’s socio-cultural landscape while respecting constitutional values and the lessons of historical jurisprudence.

References-

Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1.

Mukesh v. State (NCT of Delhi) case. The horrific gang rape and killing of a 23-year-old woman, known as “Nirbhaya.”

All About Death Penalty in India, Vajiram and Ravi (last visited Jan 10, 2025)

History of Capital Punishment in India, LawBhoomi (last visited Jan 08, 2025)

Santa Singh vs the State Of Punjab | LawFoyer (Last Visited Jan 08, 2025)

An overview of Capital Punishment in India, Volume 3 Issue 2, ISSN: 2583-0538; Ngamjai Wangsacha & Bellen Camdir, LLM (Criminal), Amity Institute of Advanced Legal Studies, Noida.

Landmark cases on death penalty in India – iPleaders, (Last Visited Jan 12, 2025)