by: Sneha Sharma
B.A.LLb ; LLM; (Judiciary Aspirant @ZJ)
INTRODUCTION: Death sentence being one of the harshest punishment known to man has taken a gradual humanized change over the years .Being a mode of punishment prominently followed in most parts of the world, it has now been abolished in many countries because of a wave of abolition initiated a few decades back.
India seems to be struck between the global trend to end death penalty and the nations that still follows it.
It has taken a very safe ground by giving a minimal provision and leaving it to the discretion of the judiciary to award the punishment in special circumstances.
Historical Consideration: Capital punishment for murder, treason, rape was widely employed in ancient Greece under laws of Draco. The romans also used it for a wide range of offences through citizen were exempted for a short time during the Republic .It has been sanctioned at one time or another by most of the world‘s major religion.
However during the medieval times the capital punishment was healthier was rather sensitive .The Punishment which was given to the accused couldn’t b e compared to the act which had been done by accused .One of the oldest methods of practicing capital punishment was hanging .This method originated from Persia and was restricted only male criminals .
In the earlier times death penalty laws could be found in the court of king Hammaurabi of Babylon in which death penalty was given different crimes .
But in the Draconian code of Athens times where every crime was punishable by death and was the extreme capital punishment was the extreme capital system in ancient times.
Later on under Roman law in the 5th century Person could even be sentenced to death for simply writing an insulting song.
Definition of Capital Punishment: Capital punishment is the practice of executing someone a punishable for a specific crime after death time after a proper legal trial .It is usually only used as a punishment for particularly serious type of offences like murder but in some countries . In India the traditional way of awarding the punishment is “hanging by the neck “ till the death of criminal as enumerated under section 354(5) criminal procedure code
Among all the Punishment the death sentence or capital punishment is the most deterrent and horrible .It can be said to be a murder under the sanction of the law or according to procedure established by the law.
Offences in which Death or capital punishment can be awarded:
Murder, waging war against government, Dacoity with murder, NDPS Act, other provision where death penalty as a form of punishment can be given are:
- The Indian Penal Code prescribes ‘Death’ for offences such as:
- Waging War against Government of India (Section 121)
- Abetting military actually committed (Section 132)
- Giving or fabricating evidence upon which an innocent person suffers death (Section 194)
- Murder (Section 302)
- Other Criminal Statues that provide for death penalty as a form of punishment
- Direct or indirect abetment of State is punishable with death punishment, under the commission of State (Prevention) Act, 1987.
- Under Scheduled Caste and Schedules Tribe (Prevention of atrocities Act) 1989 giving false evidence leading to execution of an innocent member belonging to Scheduled Caste or Scheduled Tribe would attract death penalty.
- Rape of minor below 12 years of age is punishable with death under Protection of Children from sexual offence (POSCO) Act 2012.
- Unlawful Activities (Prevention) Act, 1967.
- Army and Navy and Airforce Act also provide the death penalty fro certain specified offences.
Death Penalty in Indian Context
No issue was raised about capital punishment in Indian legislative Assembly until 1931, when one of the member from Bihar ‘Shri Gaya Prasad Singh’ sought to introduce a Bill to abolish the Punishment of death for the offences under the Indian Penal Code. However, the motion was negative after the Home Minister replied to the Motion.
Prior to the Criminal Procedure (Amendment) Act of 1955 the death penalty was the rule and life imprisonment an exception in India. Further the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences.
After the amendment of 1955 courts were at literally to grant either death or life imprisonment:
- As per Section 354(3) of the Criminal Procedure Code, 1973 the courts are required to state reason in writing for awarding the maximum penalty.
- The Situation has been reversed and a life sentence in the rule and death penalty an exception in capital offences. Moreover despite a Global Moratorium against the death penalty by the UN, India retains the death penalty.
- India is of view that allowing criminals guilty of having committed Intentional, cold blooded, deliberately and brutal murders to escape with a lesser Punishment will deprive the law of its effectiveness and result in travesty of Justice.
In concurrence of this a proposal for the scrapping of the death penalty was rejected by the law commission in its 35th report 1967. In India as per official statistics 720 execution have been executed since Independence of India.
Supreme Court on Death Penalty
- Jagmohan Singh v State of Uttar Pradesh 1973
The Supreme Court held that according to Article 21 deprivation of life is constitutionality punishable if that is done according to the Procedure establish by law. Thus the death sentence imposed after a trial in accordance with legally established procedure under criminal procedure code and the Indian Evidence Act is not unconstitutional to Article 21.
- Rajendra Prasad v State of Uttar Pradesh
The Supreme Court held that if the murderous operation of a criminal jeopardizes social security in a persistent, planned and perilous fashion then the enjoyment of the fundamental rights may be rightly annihilated.
- Bachan Singh v State of Punjab
A constitutional bench of the Supreme Court propounded the dictum of Rraest of Rare cases according to which death is not to be awarded except in the rarest of rare cases when the alternative option is unquestionable foreclosed.
- Machi Singh v State of Punjab
The Supreme Court laid down certain consideration for determining whether a case falls under the category of rarest of rare cases or not.
Rarest of Rare Cases:
- When the Murder is committed in an extremely brutal, ridiculous, revolving manner so as to awaken intense and the extreme indication of the community.
- Shatrughan Chauhan and Anr v Union of India
Supreme Court stated that the undue delay by President in rejecting mercy to a death row convicts amount to torture. Such inordinate and unexplained delay by the President is sufficient in itself to entitle the convict a commutation. The crime in question is irrelevant while deciding the effects of keeping a death row prisoner waiting for decision on his or her mercy petition.
Is capital punishment justified in contemporary society
Regarding the question whether capital punishment should be awarded or not, there are mix views for the same. Certain class of people consider it unjust and on the other side people consider it the correct method.
In the same different justices have different take onto whether capital punishment should be given or not.
Justices J. Bhagwati in Bachan Singh v State of Punjab look a dissenting opinion and held that capital sentence was unconstitutional and violation of Articles 14 and 21 of the Constitution of India. Laws which are to be used avoid and prevent people from committing such offence and not take the life of a person using the same law. The state has no right to take the life of a person. India should abolish death sentence.
Conclusion: Death Penalty is very harsh punishment provided, which involves the judicial killing or taking of life of accused as a form of Punishment. After analysing the ‘for and against’ we can rationally conclude that Capital Punishment should not be abolished.
The law commission of India in its 35th report also opined that at present India should not take risk to abolish death sentence.
In India law of the land is that death sentence can be only imposed in Rearest of Rare cases where action of the criminals are so much brutal. Society is not inclined tot ake risk to give a chance to reform the criminals.
