In today's world crimes are being committed daily, no country is crime free.
Criminals are committing crimes everywhere. To prevent crime, the government of
all countries have made strict laws, yet criminals commit crimes. A crime is a
breach of behavior's that is penalized by the state.
Crime is regarded as human activity but not all human behavior's can be called a
crime, only behavior's that are contrary to legal code or laws are regarded as
crime. Punishment is the legal action that is used to enforce the law of the
land. It is the responsibility of the State to punish the criminals to maintain
the peace and security of its citizens.
There are different types of crimes that are committed by the offenders, some
are severe in nature and some are less serious. But for every crime or bad deed
punishment is necessary. Whenever the court award the Punishment, it is based on
the theories or proposition on which the court passes its judgment.
It is generally of five types:
- Retributive theory
- Deterrent theory
- Preventive theory
- Expiation theory
- Reformative theory
Death penalty comes into the ambit of deterrent theory. The death penalty is
the maximum sentence that is used in punishing people who have committed serious
crimes like murder and rape, In India capital punishment or death penalty is
only given in the rarest of the rare case as per the Indian Penal Code 1860 and
Code of Criminal Procedure 1973.
It was recommended by the law commission report 2015 that the concept of death
penalty should be abolished in India for all the crimes except the offences
related to the terrorism to safeguard the security of the nation.
It is a most controversial penal practice debated highly all over the world and
the word Abolition of Death Penalty is one of the discussed topics in United
Nation where it is considered that Death Penalty is a violation of Human Rights.
United nation has given more emphasis on Reformative Theory rather than the
Deterrent Theory of Punishment.
What is capital punishment?
The word capital derived from the Latin word 'capitalis' which means concerning
head and subject to capital punishment it means to lose one's head. Capital
punishment is also known as Death penalty, it is a legal punitive measure in
which a person is sentenced to death by the state as retribution of their
Some of the certain offences under Indian Penal Code for which the offenders
are punished with capital punishment are:
- Murder (Sec- 302)
- Abatement of Mutiny (Sec-132)
- Criminal Conspiracy (Sec-120B)
- Dacoity with murder (Sec 396)
The traditional methods of death penalty involved torturous deaths of the
culprits through methods of boiling to death, burning alive, through garrots and
keelhauling but the modern methods of execution are painless, carried out
through lethal injection, shooting, hanging. In India only Hanging and shooting
process is used for giving capital punishment to the culprits.
The concept of death penalty recently came into the focus after hanging of four
persons convicted for the brutal rape and murder in 'Nirbhaya case'.
Some offenders are excluded from execution of death penalty. They are:
- Pregnant women
- Intellectually disabled person
Is Death Penalty a Deterrent?
Some supporters of the death penalty believed in 'Eye for an Eye' and 'life for
life' philosophy. The supporters of death penalty believed in retribution
theory; they stated that the punishment must be equivalent to the severity of
the crime. Each criminal should get what their crime deserves and in case of a
murderer what their crime deserves is death.
It is also believed that death penalty may provide closure and justice to the
victim's family and prevent from any danger of re-offending and it is cheaper
than life imprisonment as criminals will stay whole life in prison on tax
payers' money, while others believed that sanctioned death is wrong and stated
that killing someone is always inhuman and it is like murdering legally and
saving money can never be a justification for taking someone's life. They also
believed that there is a Possibility that innocent person might be punished.
According to the National Law University Delhi's Death Penalty India Report
2016, approximately 75% of all convicts sentenced to death in India are from
socio-economically underprivileged categories, such as Dalits, OBCs, and
religious minorities. According to Amnesty International as long as human
justice remains weak, the risk of executing the innocent can never be
Death penalty does not have rehabilitate effect as it takes the right from the
offenders to rehabilitate and serves for the society in a meaningful way. The
death penalty does not have the deterrent effect as its supporters claim it
Capital Punishment around the world
Most of the developed countries abolished the death penalty either in law or in
practice. Some of the countries like Japan, united states, Taiwan, Singapore and
South Korea still practicing the capital punishment in their states. Japan
became the first country to abolish the death penalty in 724AD however this
abolishment only lasted for few years after that it again came into practice.
After the II World War there has been a trend for abolishment of death penalty
from their countries. Currently 111 countries have abolished the death penalty
altogether. 53 countries still carried out death penalty and 7 countries
abolished the death penalties for ordinary offences but carried out death
penalty in special circumstances and 24 countries abolished it for practice
because they have not carried out death penalty from last 10 years and believed
to have a policy against the execution of death penalty. Additionally, death
penalty is also carried out in India but in rare cases, China and most Islamic
Laws of Capital Punishment in India
Capital punishment is legal in India. Exact number of Execution in India from
independence is unknown but from 1991 to 2020, total 30 execution have taken
place. Only a session court in India can grant death penalty with the
confirmation of the High Court.
For deciding the case of death penalty supreme court held in the case of
Bachan Singh v State of Punjab
, 1980 that death penalty can only be granted
to any convict in rarest of the rare case or else the convict shall be awarded
life imprisonment and along with it, In the case of Machhi Singh v State of
1983 the supreme court supported the doctrine of rarest of rare case
which was held in the judgement of Bachan Singh v state of Punjab
the guidelines for cases which may fall under this category, supreme court also
struck down section 303 of Indian penal code 1860 which provided mandatory death
penalty for convicts who commit murder and serves the sentence of Life
Under article 161 and 72 of Indian constitution empowers the governor of any
state and president of India respectively to award pardon, respites or remission
penalty or to suspend, reprieves, commute or remit the sentence of any accused
person convicted of any offense including death penalty. Such convicts can also
file application before supreme court under article 134 of Indian constitution
and special leave petition can also be filed under article 136 of Indian
Constitutional Validity of Death Penalty
In India, death penalty is awarded only in the rarest of the rare cases and for
special reasons though what constitute special reason and rarest of rare case
has not been decided by the legislature or by the supreme court. Article 21 of
Indian constitution guarantees fundamental right to life to every citizen
subject to its deprivation by the procedure established by law and it was argued
by the supporters of the abolishment of death penalty that death penalty
violates the right to life of the citizen while the others argued that even the
right to life is not absolute right and it should be given to offenders who is
convicted for heinous crimes.
The constitutional validity of capital punishment is challenged in several
cases from time to time and those cases are:
In the case of Rajendra Prasad V State Of Uttar Pradesh
, 1979 Justice
Krishna Iyer stated that death penalty is in violation of article 14, 19 and 21
of Indian constitution and he further said that for imposing death penalty two
thing must be required that special reason should be recorded and special
circumstances should be present in the cases.
In Mithu vs. State of Punjab
, 1983, Section 303 of the Indian penal code
was struck down as it is in violation of article 14 and 21 of the Indian
constitution as the offences under this section was only punishable with death
penalty and it does not give power to the judiciary to exercise its discretion
and this leads to an unfair and unjust procedure depriving someone's life.
In Sher Singh vs. State of Punjab,
1983 view of the three judges of the
supreme court held that death sentence is constitutionally valid and permissible
within the rule of the Bachan Singh case.
Punishment is necessary for every crime for not only eliminating criminal but
eliminate the crime itself but imposing death penalty to the accused is more
than the punishment because killing a person in the name of law and justice is
not just and moral for the society and opposing to death penalty does not mean
that someone is supporting crime or the criminal. Death penalty takes the right
from the offenders to rehabilitate or from improvement which may change the life
of the accused.
The concept of death penalty is more ancient and it should be abolished and the
state should focus on the reformative theory than the deterrent theory but in
rarest of the rare cases such as Nirbhaya case the death penalty can be imposed
to became an example for others so that no one can have the courage to do the
offence of such nature.
Written By Priyanka Kumari