Capital punishment in India

Capital punishment, also called the death penalty, is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence. It is the highest penalty awardable to an accused. Generally, it is awarded in extremely severe cases of murder, rapes, treason etc. The Indian Penal Code prescribes ‘death’ for offences such as

• Waging war against the Government of India. (Sec. 121);
• Abetting mutiny actually committed (Sec. 132);
• Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194);
• Murder (Sec. 302);

Some other criminal statutes provide for the death penalty as a form of punishment.

• Direct or indirect abetment of sati is punishable with the Death penalty under the Commission of Sati (Prevention) Act, 1987.
• Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty.
• Besides these, rape of a minor below 12 years of age is punishable with death under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
• Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for repeat offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
• Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide the death penalty for certain specified offenses committed by members of the armed forces.

Also Read: Law of Arrest in India

Arguments for Capital Punishment

• Retribution - Supporters believe people who commit murder, have taken the life of another,  have forfeited their own right to life. Furthermore, capital punishment is a just form of retribution, expressing and reinforcing the moral indignation of citizens.
• Drain on public finances - Maintaining a secure prison system for high-risk, violent offenders acts as a drain on government resources.
• Deterrence Effect – It is claimed that it has a deterrent effect on potentially violent offenders for whom the threat of imprisonment is insufficient restraint.
• Will of the citizens - In many countries with capital punishment, a vast majority of citizens are in favor of retaining capital punishment. A survey held after the Delhi rape incident of Dec 2012, found that nearly 70% of Indians favored the continuance of capital punishment.

Arguments against Capital Punishment

• Value of human life/Right to life- Everyone has an inalienable human right to life as life is valuable, even for those who commit murder.
• Execution of the innocent - Innocent people gets killed, because of mistakes or flaws in the justice system. There is evidence that such mistakes are possible: In the US, 130 people sentenced to death have been found innocent since 1973 and released from death row. In 2012, 14 former judges of various High Courts and the Supreme Court of India signed an appeal to the President to pardon 13 convicts who had been erroneously sentenced to death (according to the Supreme Court’s own admission) and were facing the threat of imminent execution.
• Retribution is wrong - Many people believe that retribution is morally flawed and problematic in concept and practice as it is just a sanitized form of vengeance. Retribution via capital punishment legitimizes the very behavior that the law seeks to repress - killing. Hence, capital punishment is counterproductive in the moral message it conveys. Others argue that the retribution argument is flawed because the death penalty delivers a 'double punishment'; that of the execution and the preceding wait, and this is a mismatch to the crime. The death penalty is inappropriate for a modern civilised society to respond to even the most dreadful crimes.
• Failure to deter - The death penalty doesn't seem to deter people from committing serious violent crimes. The death penalty in India has little in relation to deterring or combating violent crime. As per the Home Ministry’s statistics, there has been no visible increase in the levels of ordinary crime and violence despite the reduction of executions in India. A survey conducted by the UN concluded: “research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment..The key to real and true deterrence is to increase the likelihood of detection, arrest, and conviction.” 
• Expensive - In countries with costly and lengthy appeals procedures like India, capital punishment becomes a more expensive option than long-term imprisonment. 
• Applied unfairly - Even in India, the application of the Bachan Singh guidelines has been arbitrary and as a whole, the application of the death penalty by individual judges remains fraught with arbitrariness, discrimination, caprice, and mistake.  Racial, ethnic, and social class bias – It is argued that it is used more often against perpetrators from racial and ethnic minorities and from lower socioeconomic backgrounds, than those coming from a privileged background.
• Lawyers - There's also a concern that the legal system doesn't always provide poor accused people with good and gentle lawyers.

Methods of giving capital punishment

At present, the ancient methods have been abolished for providing capital punishment and new techniques are being adopted in order to reduce the physical pain experienced by the offender while dying. The new methods adopted for providing capital punishment include :

• Hanging.
• Beheading.
• Stoning.
• Lethal Injection.
• Shooting by fire squad.
• Shooting.
• Electrocution.
• Gas chamber.
• Falling from an unknown height.

Also Read: Alimony in Divorce: Right Of Women

The constitutional validity of Capital Punishment

India is one of the countries that has neither completely abolished the provision of capital punishment nor has created laws specifying its legality and validity. Since the establishment of the Indian Constitution, a number of challenges to the constitutionality of the death sentence have arisen through Supreme Court petitions. The issue of the death penalty has been debated, discussed, studied for a prolonged time but till now no conclusion can be drawn about the retention or abolishment of the provision. The death penalty has been a mode of punishment from time immemorial which is practiced for the elimination of criminals and is used as the punishment for the heinous crimes. Various countries have different outlooks towards crime in different ways. In Arab countries they choose the retributive punishment of “an eye for an eye”; others have deterrent punishment. Of late there has been a shift towards restorative and reformist approaches to punishment, including in India. India is one of the 78 retentionist countries which have retained death penalty on the ground that it will be awarded only in the “rarest in the rare cases” and so far “special reasons”. Though what constitutes a rarest of the rare case or special reason has not been answered either by the legislature or by the Supreme Court.

The constitutional validity of death penalty was challenged from time to time in numerous cases starting from JAGMOHAN SINGH VS STATE OF U.P where the Supreme Court rejected the argument that the death penalty is a violation of the “right to life” which is guaranteed under article 19 of the Indian constitution. In another case, Rajendra Prasad vs State of U.P., Justice Krishna Iyer has empathetically stressed that death penalty is violative of articles 14, 19 and 21, But year a later in the landmark case of Bachan Singh vs State of Punjab, by a majority of 4 to 1 (Bhagwati J. dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence violative of articles 14,19, and 21, of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the “rarest of rare cases”. The Supreme Court in Machhi Singh vs State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed. Similarly in various other cases Supreme Court has given its views on death penalty and on its constitutional validity. But the punishment of death penalty is used in India, some time back the death penalty was given to Mohammed Ajmal Kasab. The Pakistani gunman convicted in the 2008 Mumbai attacks was sentenced to death by hanging and after a long discussion, politics and debate were finally hanged on 21 November 2012. Next in the row is Afzal Guru, convicted in 2001 Parliamentary attacks was also hanged after a huge political discussion on 9 February 2013. 

The next convict in the death rows is Devendra Pal Singh Bhullar, convict of the 1993 car bombing will be hanged in the coming days as the Supreme Court rejected his mercy petition by holding that in some terror crime cases pleas of delay in execution of death sentence cannot be a mitigating factor. There has been a diverse opinion regarding the death penalty in India as some are in the favor of the retention of the punishment while others are in the favor of its abolishment. Those who are in the favor of death penalty argue that it should be given in the most heinous and rarest of the rare crimes as for example Delhi gang-rape case the demand for the death penalty for the accused was raised. But the people who are against the capital punishment argue on the religious, moral and ethical grounds and declare it an inhuman and callous investment by an unsure and unkempt society. It is also suggested that it should be replaced with life imprisonment or any substitute must be brought out.

Supreme Court's important cases on the Death Penalty in brief judgments

Jagmohan Singh v. State of UP 1973 case: The Supreme Court held that according to Article 21 deprivation of life is constitutionally permissible if that is done according to the procedure established by law. Thus the death sentence imposed after a trial in accordance with legally established procedures under Cr.PC and the Indian Evidence Act is not unconstitutional under Art. 21.

Rajendra Prasad v. State of UP 1979 case: The Supreme Court held that, if the murderous operation of a criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.

Bachan Singh v. the State of Punjab 1980 case: A Constitution Bench of the Supreme Court propounded the dictum of ‘rarest of rare cases’ according to which death penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed.

Machhi Singh v. State of Punjab 1983 case: The Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not.

Many countries have abolished the death penalty or capital punishment by providing justification that it is barbaric and inhumane in nature and violates the right to life and liberty given to the citizens of the countries. However, if a valid opinion is to be taken, it would be right to say that capital punishment even in its brutal nature is effective in reducing criminal offenses and discouraging offenders to some extent. Moreover, if we are to talk about the right to life, it would be correct to stipulate that the Constitution of India provides enough remedies and defences to the person of offenders such as the right to legal aid, right to treatment etc. And the right to life is not an absolute right in the case of a convicted felon who was charged for some heinous crime against an individual or the country at large. Therefore, in my opinion, capital punishment is constitutionally valid and reasonable provided it is given in cases of grievous and extreme nature. Furthermore, in my opinion, a person, who neither values the life of others nor values the integrity of his/her own nation, should not be treated with empathy. Even though it is hard to quantify the crimes in terms of which crime deserves capital punishment, still, crimes of grievous nature like rape, terrorism and murder should always be awarded capital punishment or the death penalty. But the coin have two sides; Law Commission in its 262nd report submitted recently recommended the abolition of capital punishment for all crimes in India, except the crime of waging war against the nation or for terrorism-related offenses. It cited several factors to justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and flawed application, and its lack of any proven deterring effect on criminals. Internationally this practice has been discarded by the majority of the nations today. As a leader of human rights and emerging nations, it does not set the right example. India has been criticized internationally for handling its insurgency in the Northeast and Kashmir. Abolishing capital punishment will augur well for us internationally. However, as the Law Commission said that it is not the right time for the abolition experiment, the issue needs to be debated and researched in more detail. But, capital punishment should not become a pent-up of society’s misplaced anger and sense of judgment. It is also against the reformative purpose of the Criminal Justice System and In my opinion, “Each of the godly men has a history and each of the wrongdoers has a later.”