Introduction
Death penalty is also known as capital punishment. There has been difference in opinion regarding the death penalty in India. It is one of the most controversial and sensitive aspects of India’s justice system. Some are in favour of preservation of the death penalty while others are in favour of its dissolution. Punishment is imposed to create discouragement among offenders; however, offenders are also to be given an opportunity for improvement. The constitutional validity of the death penalty in India has been debated and discussed extensively.
Historical Background
Death penalty has been used as a punishment for thousands of years, since ancient times. The Indian Penal Code (IPC) consolidated the death penalty for heinous offences like murder and launching war against the Indian government. During post-independence, the death penalty was the default punishment for murder under Section 302 of the Indian Penal Code (IPC). However, the judiciary eventually evolved to limit its scope by attaching the doctrine of “rarest of rare cases” to it in 1980. Though what constitutes a ‘rarest of rare case’ has not been clearly answered either by the legislature or the judiciary.
Legal Provisions
Here are the corresponding sections in the Bharatiya Nyaya Sanhita (BNS) for the given Indian Penal Code (IPC) sections:
| IPC Section | Description | Corresponding BNS Section |
|---|---|---|
| 121 | Waging or attempting to wage war against the Government of India | 147 |
| 132 | Abetment of mutiny, if mutiny is committed in consequence thereof | 160 |
| 194 | Giving or fabricating false evidence with intent to procure conviction of capital offence | 230 |
| 302 | Punishment for murder | 103 |
| 305 | Abetment of suicide of child or insane person | 107 (or 105 for mental illness cases) |
| 364A | Kidnapping for ransom, etc. | 140(2) |
| 376A | Punishment for causing death or resulting in persistent vegetative state of victim | 66 |
| 376E | Punishment for repeat offenders | 71 |
| 396 | Dacoity with murder | 310(3) |
Special Legislation
- The Commission of Sati (Prevention) Act, 1987: Commission of sati directly or indirectly.
- Narcotic Drugs and Psychotropic Substances Act, 1985: Section 31A providing punishment for involvement in the production or sale of narcotics or psychotropic substances.
- The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: Forging evidence that leads to the conviction and execution of an innocent member of a scheduled caste or tribe is punishable by death.
- The Protection of Children from Sexual Offences (POCSO) Act, 2012.
- The Unlawful Activities (Prevention) Act, 1967.
- Anti-Hijacking Act, 2016.
The Procedural Framework
Here are the corresponding sections in the Bharatiya Nagarik Suraksha Sanhita (BNSS) for the given Code of Criminal Procedure (CrPC) sections:
| CrPC Section | Description | Corresponding BNSS Section |
|---|---|---|
| 354(3) | Special reasons to be recorded in certain cases | 392(3) |
| 366 | Sentence of death to be submitted by Court of Session for confirmation | 419 |
| 413 | Execution of warrant of death | 466 |
| 432 | Power to suspend or remit sentences | 485 |
The Constitutional Validity of the Death Penalty in India
The Supreme Court of India has played a crucial role in shaping the country’s legal framework regarding the death penalty. Over the years, the apex court has delivered several landmark judgments clarifying the constitutional validity and procedural aspects of capital punishment.
Key Points
- The Supreme Court has consistently upheld the constitutional validity of the death penalty, rejecting arguments that it violates Articles 14, 19, and 21 of the Indian Constitution.
- In the Bachan Singh case, the court established that the death penalty should be imposed only in the “rarest of rare cases” when the alternative option is unquestionably foreclosed.
- The court has specified guidelines to restrict the arbitrary use of the death penalty, ensuring that it is imposed only in exceptional circumstances.
- The court has the discretion to decide whether to impose the death penalty or not, refined over time through judicial pronouncements.
- The Supreme Court has defined the scope of executive clemency under Articles 72 and 161 of the Constitution, making it subject to judicial review.
Landmark Cases
Jagmohan Singh vs State of Uttar Pradesh (1973)
This was the first case where the constitutional validity of the death penalty was challenged. The Supreme Court upheld its validity, ruling that the death penalty does not violate Articles 14, 19, and 21. Judges make this decision based on the facts and circumstances of each case, exercising judicial discretion.
Rajendra Prasad vs State of Uttar Pradesh (1979)
Justice Krishna Iyer argued that the death penalty violates Articles 14, 19, and 21. He emphasized two essential conditions:
- Special reasons: Specific reasons for imposing the death penalty must be recorded.
- Extraordinary circumstances: The death penalty should only be applied in exceptional cases.
Bachan Singh vs State of Punjab (1980)
The Supreme Court upheld the constitutional validity of the death penalty by a 4:1 majority. It established the “rarest of rare” doctrine, stating that life imprisonment is the rule and death penalty is the exception. Justice Bhagwati dissented, declaring the death penalty unconstitutional due to arbitrariness and violation of the right to life.
Machhi Singh vs State of Punjab (1983)
Justice Thakkar outlined five categories of cases that may qualify as “rarest of rare” deserving the death penalty:
- Manner of commission of murder: When committed in an extremely brutal or depraved manner.
- Motive: When committed for a depraved or selfish motive.
- Anti-social nature: When the crime shocks social conscience, such as dowry deaths.
- Magnitude: When the crime involves multiple murders.
- Personality of victim: When the victim is an innocent child, helpless woman, or elderly person.
The judgment reaffirmed that the death penalty can only be awarded in the rarest of rare cases when the community’s collective conscience demands it.
Conclusion
Overall, the Supreme Court’s judgments have shaped the legal framework surrounding the death penalty in India, emphasizing caution, restraint, and transparency in its application.
Arguments In Favour Of The Death Penalty
| # | Argument |
|---|---|
| 1 | Deterrence |
| 2 | Retributive Justice |
| 3 | Eliminating Criminals |
| 4 | Cost Savings |
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Deterrence
The death penalty is believed to deter potential criminals from committing heinous crimes, such as murder or terrorism, due to the fear of execution. Proponents argue that the threat of death serves as a powerful deterrent, maintaining law and order in society.
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Retributive Justice
The death penalty is seen as a form of retributive justice, providing justice to victims and their families by ensuring that the punishment fits the crime. This approach emphasizes that certain crimes, such as murder, deserve the ultimate punishment.
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Eliminating Criminals
Capital punishment permanently removes dangerous offenders from society, preventing them from committing further crimes. This argument suggests that executing criminals ensures public safety and prevents potential future harm.
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Cost Savings
Executing criminals instead of imprisoning them for life can save the state significant costs associated with lifelong imprisonment, including food, housing, and healthcare. Proponents argue that these resources can be better allocated to support victims’ families or other public services.
These arguments highlight the perceived benefits of the death penalty in maintaining public safety, providing justice, and protecting society. However, it’s essential to consider the complexities and controversies surrounding the death penalty, including concerns about wrongful convictions, arbitrariness, and human rights.
Arguments Against The Death Penalty
| # | Argument |
|---|---|
| 1 | Deterrent Effect |
| 2 | Fundamental Rights |
| 3 | Execution On Innocent |
| 4 | Inconsistent Application |
-
Deterrent Effect
Research suggests that the death penalty’s deterrent effect on crime is not conclusively established, with many studies finding no significant difference in deterrence compared to long-term imprisonment. Some research even indicates that the death penalty may increase crime rates by brutalizing society. The United Nations and law enforcement experts increasingly question the effectiveness of capital punishment in preventing crime, citing a lack of solid proof supporting its deterrent value.
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Fundamental Rights
Many argue that the death penalty violates the fundamental right to life and constitutes cruel punishment. They believe that every individual is entitled to this right, and it’s the responsibility of each person to protect the rights of others. The right to life is a universal human right, and taking it away diminishes human dignity, an inalienable right. Article 21 of the Indian Constitution guarantees the right to life and personal liberty. Abolitionists contend that capital punishment contradicts this fundamental right and should be abolished, emphasizing the importance of upholding human dignity and the right to life.
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Execution On Innocent
The death penalty’s application is criticized for being arbitrary and biased, disproportionately affecting vulnerable groups like the poor, minorities, Dalits, and OBCs. Socio-economic factors influence outcomes, and there’s a lack of consistency in sentencing, with some receiving death penalties for similar crimes while others get lesser punishments. This raises concerns about fairness and equality in the legal system.
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Inconsistent Application
The death penalty carries the risk of irreversible mistakes, potentially executing innocent individuals due to flaws in the justice system. Wrongful convictions can and do occur, leading to unjust outcomes. The application of the death penalty also raises concerns about fairness and equality, as it disproportionately affects vulnerable groups, including the poor, mentally ill, and racial and ethnic minorities. Studies have consistently shown that socioeconomic status and marginalized backgrounds increase the likelihood of receiving a death sentence, highlighting serious issues with the fairness and impartiality of the legal system.
Current Status of Death Penalty in India
India’s death penalty laws and practices have been a subject of concern and debate. The country stands poised between the global trend to end the death penalty and those nations that continue to execute. While the Indian judiciary has ruled that the death penalty for murder must be restricted to the rarest of rare cases, the legislature has increased the number of offenses punishable by death, contradicting this instruction.
Arbitrariness and Discrimination
There are grave concerns about arbitrariness and discrimination in the processes that lead to people being sentenced to death. Death sentences have been imposed on:
- People who may have been children at the time of the crime
- Individuals suffering from mental illness
These factors render India’s use of the death penalty potentially in violation of international laws and standards.
Recommendations for Reform
To address these concerns, it is recommended that India review its death penalty laws to ensure they align with international human rights standards. The law should:
- Provide for fair trial rights
- Prohibit the use of the death penalty against juvenile offenders
- Prohibit execution of people with mental disabilities
- Improve legal aid services to ensure competent and effective representation
Systemic Criminal Justice Reform
India should take steps to address systemic issues in its criminal justice system that contribute to wrongful convictions and unfair trials. This includes:
- Holding police accountable for fabricating evidence
- Training judges to identify and reject coerced confessions
- Increasing transparency by publishing statistics on:
- The number of people on death row
- The number of executions carried out
Need for Public Debate
A public debate on the use of the death penalty in India would allow for a constructive dialogue on the issue and could lead to the development of more effective and humane policies. As a global and regional power, India has an opportunity to exercise leadership by reconsidering its stance on the death penalty and upholding human rights standards.
Conclusion
The death penalty in India is a complex and contentious issue, existing at the intersection of legal tradition, constitutional principles, and evolving societal standards. Historically, capital punishment has been used in India since ancient times, with no distinction between serious and minor crimes. However, in the present era, the concept of “rarest of rare” cases, special reasons, grievous crimes, and serious offenses are considered before imposing the death penalty.
Judicial Approach and Principles
The Supreme Court of India has repeatedly asserted that the death penalty should be imposed only in the rarest of rare cases, emphasizing procedural fairness, proportionality, and human dignity. This doctrine continues to guide India’s approach, creating a system where the death penalty remains legal but is imposed and executed only in exceptional circumstances.
Ongoing Debate and Diverging Views
The debate surrounding the death penalty in India is ongoing:
| Proponents’ View | Opponents’ View |
|---|---|
| It acts as an effective deterrent for heinous crimes. | It violates fundamental human rights. |
| Necessary for ensuring justice in monstrous crimes. | Has not proven to be an effective deterrent. |
Law Commission and Legislative Outlook
The Law Commission of India has recommended the abolition of the death penalty except for acts of terrorism. Many nations worldwide have already abolished it, reflecting a growing global consensus toward its elimination.
Judicial Review and Clemency
In India, death warrants are issued only in the rarest of rare cases, and the Court retains the power of judicial review over the President’s pardoning authority. The use of capital punishment is viewed as a deterrent and a form of retributive and preventive punishment, yet many argue that it is ineffective and violates fundamental rights.
Future Outlook
Ultimately, the death penalty in India reflects a balance between traditional notions of justice and contemporary human rights principles. As global trends increasingly favor abolition and domestic discourse continues to challenge its morality and utility, India faces the ongoing challenge of refining its position on this ultimate penalty.
The debate is likely to intensify in the coming years, potentially leading to further reforms that may result in either complete abolition or stricter limitations on its application.
References and Case Laws
- Bachan Singh v. State of Punjab, (1980) 2 SCC 684
- Macchi Singh v. State of Punjab, (1983) 3 SCC 470
- Rajendra Prasad v. State of Punjab
- Jagmohan Singh v. State of U.P.
- Law Commission of India, 262nd Report on “The Death Penalty” (2015)
- Articles 14, 19, and 21 of The Constitution of India
Online References
- https://lawblend.com/articles/death-penalty-in-india/
- https://www.indianbarassociation.org/constitutionality-of-death-penalt/
- https://blog.ipleader.in/capital-punishment-in-india-2/
- https://forumias.com/blog/execution-of-death-penalty-in-india/
- https://www.scribd.com/document/544262887/Death-Penalty-in-India-a-critical-analysis
- https://www.civilsdaily.com/death-penalty-un-india-a-necessary-deterrent-or-a-human-rights-concern/
