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Constitutional Validity Of Death Penalty In India

In the words of Salmon law may be defined as ' the body of principles recognized and applied by the state in the administration of justice.' That means, to deliver justice to people law becomes a necessary part of the structure of a nation. According to the theory of justice which came into being in 1971 by an American political philosopher and moral, John Rawls, justice is defined as fairness. But to maintain this fairness, sometimes the law enforcers or the people who are to administer justice have to award some harsh sanctions. One of such sanctions is capital punishment or death penalty.

When we look at this word separately, 'capital' comes from a Latin word 'capitalis' which means 'relating to the head'; Its first known traces can be traced back in the early middle English. And punishment has roman backing which more or less talks about sanctions. In the early times, it was believed that giving punishment was 'doing god's work' and committing crime was synonymous to sinning.

Capital punishment, thus, is a punitive measure of awarding death to the convict of a heinous crime, taken by the state as a retribution of the crime. In India, This generally involves hanging or shooting by the fire squad till the convict dies. But does that mean every convict of a heinous crime will be awarded death penalty?

Absolutely not. In this regard, the international law does not support capital punishment. Article 5 of the universal declaration of human rights 1948 states that no one shall be subjected to torture or to cruel, degrading or inhumane treatment or punishment, Article 7 of the international covenant on civil and political rights (ICCPR) 1966 provides for the same thing. Also, Almost all the European nations felt that capital punishment is an inhumane and cruel way of retribution.

That is why, for the protection of convicts who are being awarded capital punishment, resolution no. 50 of economic and social council provided that the countries who are still practicing this punishment should award this only in case of extremely serious offences. India, being one of such nations, practice this punishment only in 'rarest of rare cases'.

In this regard, the doctrine of rarest of rare case evolved in 'Macchi Singh and Others v/s State Of Punjab' which resulted in setting a legal precedent for the application of death penalty, following the judicial precedent as laid down in 'bachan singh vs state of Punjab' where the death penalty was awarded as the correctional retribution in cases of extreme culpableness.

Constitutional validity:

Now, if we look at the constitutionality of this punishment, the stances are diversified. some people who believe in the reformative theory believe 'we cannot cure by killing'. They believe that it gives the arbitrariness in the hands of judiciary because with the vast scope of 'rarest of rare' doctrine, courts can award this punishment on their discretion which will be violative of Article 14 of the constitution of india by reason that similar offences might be settled with life imprisonment in other cases.

It is also violative of article 245 of the indian constitution since it gives extra and disproportionate delegation of legislative power to the judiciary as the matter of punishment is left open-ended to the legislative only and no criteria has been set for the judiciary to make such classification, but on the other hand there are many supporters of death penalty as well.

These people are the believers of preventive theory and support the idea of impairing the criminal before the crime is committed by him again and thus the judiciary has spared this punishment for extraordinary infringement of law.

The basic idea behind this is to act as a deterrent in case of inhumane and heinous crime and also to instill some fear in the minds of those who happen to be insensitive to the humanity and law. Supporting this argument justice J Anand and Justice NP Singh in one of the judgements, even stated:

"Imposition of appropriate punishment is the way by which one can respond to society's cry for justice against the criminals. Justice asks for imposing punishment and befitting crime, so, that it can contemplate hatred of the crime."

In a nation as democratic as India, the welfare and safety of the people is of paramount value but being a signatory of Universal declaration of human rights, India has to maintain her civility as well. For this, she settled for using this kind of harsh punishment in cases of extraordinary infringements of law only, or in 'rarest of rare' cases.

Capital punishment is extremely harsh and degrading punishment in the eyes of the world but even after that India maintains its stance on practicing it in rarest of the rare cases so as to make sure that we are maintaining law and order in the society by awarding proportionate punishment for the crime committed. India also complies with ICCPR rules and thus saves itself from infringing human rights.

In the end I'd just say that In my view, the prevalence of capital punishment in india is valid and appropriate for I believe that the innocents should get justice In crimes against humanity because if that will not be done, the entire concept of justice will fail. Written By: Samridhi Srivastava (LLB 2nd year, BBD University, Lucknow)

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