Death penalty is the most ancient forms of punishment in almost all the countries. The intend of this research project is to know all about capital punishment in India. The research also focuses on the constitutionality of Capital punishment in India. The first chapter includes the Introduction to capital punishment, its status around the globe and also various international views on the same. The second chapter includes all that one needs to know about Capital punishment in India further illustrated with various case laws, how is it executed in the country, people exempted from capital punishment and also for what offences the same is awarded. It is a doctrinal research. The research also focuses on the discretionary powers of the President and the Governor. In some parts it also discusses the pro-capital punishment and anti-capital punishment views.
CHAPTER-1 – Introduction
Capital Punishment is also known as Execution or Death Penalty. It is process where a person who has committed a grave or criminal offence is sent by the State to execution as a punishment. All the offenses aren’t punishable by death penalty.
In the ancient times there were no proper laws, rules and regulations for such crimes and mainly depended on the discretion of the king. Later, when the laws were codified, in most of the states it became the duty of the State to punish the wrongdoer and protect the rights of the other people.
Capital Punishment, therefore, can be also said as the legal killing of the wrongdoer for a crime/offence prohibited by the law.
The sentence that condemns the defendant convicted to death is called the “death sentence” and the process of carrying out the death sentence is known as “Execution” of the death sentence.
There have been two views regarding the same, some are pro-death penalty whereas others are anti-death penalty irrespective of the person committing the crime, accused, or the method used for execution.
Punishments are mainly given with an intention that there should be a penalty for the wrongdoing. There are two main reasons for giving a punishment, the first one being that a wrongdoer should be punished for his wrongdoing and suffer for the same and the second one is that punishing a wrongdoer discourages the other potential people from committing an offence. Capital Punishment is also given with same motive as other punishments.
Presently there are around 58 nations who have adopted Capital Punishment including India, China, U.S and Indonesia who also voted against the non-binding resolutions of the U.N adopted in the UN General Assembly for global moratorium on executions, but at the same time there are 96 other countries who have abolished Capital Punishment including opposition regarding the same from Human Rights Watch and Amnesty International.
CHAPTER-2 – Capital Punishment in India
Capital Punishment has been one of the most debatable topics in India but at the same point one should not forget that it is the integral part of the Indian criminal justice system. Increase in the Human Rights Movement in India has started questioning the immorality of the death punishment but it is somehow an odd argument as to keeping one person alive by keeping at stake the lives of various potential victims, which is morally wrong.
Meaning of Capital Punishment
Capital Punishment is the execution of the death statement of the offender after conviction for a criminal offence by a court of law. It is different from other extra-judicial executions which are carried out without due process of law. Death penalty is confused with Capital Punishment but death penalty is not always followed by execution because there is still a possibility of commutation to life imprisonment.
Capital Punishment is one of the severe forms of punishment and can be only awarded in the cases which are very heinous and against the humanity. The definition for the same varies country to country.
Capital punishment has been prevalent since ancient times and in reality, there can be no country which could have escaped the same. Capital punishment was also there in the Ancient Greece under the laws of Draco for various offences. Also, the Romans used it for a wide range of offences but the citizens were exempted from the same for a short period of time during the Republic.
One of the soonest composed archives where a part of death penalty can be seen was the code of Hammurabi, which was composed on the stone table around 1760 BC, that contained around 282 laws gathered by Babylonian King Hammurabi and also included the hypothesis of “tit for tat”.
Earlier, Capital punishment was awarded in very agonizing and unbearable ways like being squashed by an elephant. Later, when a social order started formulating, these ways were found to be merciless and inhuman and therefore during the 18th and the 19th century they were replaced by less excruciating ways like death penalty by hanging and guillotine.
Constitutionality of Capital Punishment in India
Capital Punishment has always been a debatable topic all over the world. It has been practiced from the time immemorial. In India, Capital Punishment is awarded for the most serious, heinous, grievous crimes like murder, war against government, etc according to the Indian Penal Code. Article-21 of the Indian Constitution says that no person shall be deprived of ‘right to life’ that is promised to every citizen in India. The president has the power to grant mercy in the case of death penalty.
Aricle-72 of the Indian Constitution empowers the President to pardon, respite, suspend or reduce the sentence who has been convicted of the death penalty. Once a convict has been sentenced to death in a case by the Sessions Court, it must be confirmed by the High Court, then if the appeal is made to the Supreme Court by the convict fails, then only he can submit a ‘mercy petition’ to the President of India. Detailed instructions are to be followed by States to deal with petitions for mercy from or on behalf of death-sentenced convicts. Appeals to the Supreme Court and requests for special leave petition is send to that court by such convicts is set out by the Ministry of Home Affairs.
Under Article-161, the Governor also has the discretionary power as that of the President but it is to be ensured that the same is not based on the basis of any race, caste, religion, political view, etc.
As for Article-72 and Article-161 the judicial authorities don’t really have much say on that, they should though ensure that all the papers and documents are on the table of the President/Governor before such decision is made.
- Jagmohan Singh VS State of Uttar Pradesh– In this case the Supreme Court rejected the argument that the same was in violation of Article-19 of the Constitution of India that guarantees the “right to life”.
- Rajendra Prasad VS State of U.P– Justice Krishna Iyer empathetically stressed on that the death penalty is violative of Article-14,19 and 21.
- Bachan Singh VS State of Punjab– The same was a landmark case, one year after the case of Rajendra Prasad VS State of U.P. With a majority of 4:1(Dissented by Justice Bhagwati), the Supreme Court overruled the decision of the above case. Death penalty as a punishment for murder cannot be said unreasonable though violative of article-14,19 and 21, but it was argued that the term “public order” contemplated in Article-19(2) to Article-19(4) is different from “law and order” and also introduced the principle of awarding the death penalty in “rarest of rare cases”. The Supreme Court recognized Article-21 as the State’s right to deprive a person of his life. The same could also be seen in the Delhi gangrape case which demanded the death penalty for the accused. It has raged fire in the Nation and finally the 4 of the accused were hanged on 20th March,2020 after 8 years of wait.
- Macchi Singh VS State of Punjab– The Supreme Court laid down outlines on when can the death sentence be imposed including motive, social/anti-social nature of crime, manner in which the murder is committed, nature/personality of the victim and magnitude of the crime.
Offences punishable by death
Crimes/Offences punishable by death in India are as follows-
- Aggravated murder– “Under Section-302 of the Indian Penal Code, 1860, aggravated murder is punishable with death.”
- Treason- Death penalty is awarded to a person who wages/tries to wage a war against the government or helps members of the armed forces to wage a revolt.
- Kidnapping that does not result to death– “Section-364A of the Indian Penal Code, 1860, states that kidnapping that does not results to death is also punishable by death”. If a person detains/threatens to kill/harm anyone during which the kidnapper actually does an act which results to death of the victim then such act is punishable with death penalty.
- Offences related to terrorism that don’t result to death– Use of explosives that might cause explosion and endanger life/cause damage to property. For example- Muhammad Afzal was executed by hanging on 9th February 2013, for attacking India’s parliament in December 2001, which resulted in the death of nine men by five men who carried various explosives.
- Rape that does not result to death– A person inflicting injury during a sexual assault which results in death of the victim can be punished with death under the Criminal Law Act, 2013. Gang rapes are also punishable with death penalties, such changes came after the occurrence of Delhi gangrape case. As per the 2018 Criminal Law Ordinance, a person raping a girl who is below the age of 12 years of age can be sentenced to death or be imprisoned for 20 years along with fine, the same changes were brought into the system after the rape and murder of a eight year old girl in Jammu and Kashmir.
- Drug trafficking that does not result to death– A person convicted for commission or attempt to commit/ abet/criminal conspiracy to commit drug trafficking/financing of such substances can be sentenced to death.
- Military offences that do not result to death– Abetment of assault/attempting to seduce an airman, soldier or sailor from his duty is punishable with death penalty if committed by a member of armed forces.
- Other offences that do not result in death– Offenses that are punishable by death are as follows-
- If a person is a member to a criminal conspiracy to commit a capital offence
- If a person provides false evidence knowing that it could lead to the conviction of a person belonging to SC/ST for committing a capital offence and it results in the conviction of an innocent person.
- If a person attempts to kill someone who is sentenced to life imprisonment and the victim is harmed due to such act.
- Other offences resulting in death– As per the Indian Penal Code, death penalty is given to a person committing murder during an armed robbery, abduction of the victim for the money is punishable with the death penalty if the victim gets killed and involvement in organized crime if it leads to death.
Execution of Capital Punishment in India
- Shooting– The Air Force Act, The Navy Act and The Army Act also provide for the execution of the death sentence. The execution of the death sentence according to Section-34 of the Air Force Act,1950, can either be done shooting or hanging the wrongdoer. The Army Act, 1950 and The Navy Act, 1957 also provide for the similar provisions as that of the Air Force Act, 1950.
- Hanging-Hanging as a form of Capital Punishment is given under Section-354(5) of The Code of Criminal Procedure,1973. The method illustrated in same was drawn up by William Marwood in Britain. 8 men have been hanged so far in the 21st, most recently in 2020 including the convicts of the Nirbhaya case who were hanged till death on 20th March 2020.
Offenders excluded from Capital Punishment
Offenders that are excluded from the Capital Punishment are as follows-
Minor– Indian law says that a person who is younger than 18 years of age at the time of commission of a crime cannot be awarded capital punishment.
Mentally Disabled person– According to the Indian Penal Code, a person while committing a heinous crime was mentally / rationally sick or cannot comprehend the nature of the act done by him is risky/dangerous, such cannot be punished by capital punishment.
Pregnant Woman– As per 2009 amendment, leniency must be given to a pregnant woman who is condemned to the death penalty. For example- Nalini who played an important role in the assassination of Rajiv Gandhi was sentenced to death penalty but the same was commuted into life imprisonment since she was pregnant.
It is difficult to say whether it is just to award capital punishment to someone on the name of morality, since if one sees from a moral perspective then it is wrong to take away life of someone on the name of justice and at the same time it may lead to the execution of an innocent person but if one sees through the social perspective then if a wrongdoer is not punished for the heinous crimes committed by him then it would not only be dangerous for the various potential victims out there but also the other potential wrongdoer might not understand the consequences of their wrongdoings.
With the same the important thing is that there should be a check on the President’s power to pardon the person executed for death sentence.
Also, it is not that the justice system would not have considered other ways for punishing the wrongdoer but there are certain cases that do demand Capital Punishment as a punishment like in the case of Delhi gangrape case. Also as stated in Bachan Singh VS State of Punjab, the death penalty is to be awarded in “rarest of rare cases”.
It is no more about the legality or constitutionality of death penalty that is being questioned, it is the moral and the social aspects that are being questioned. There might be error in the judgement so made as it is also human given but at the same time one should understand that this might be dangerous if the wrongdoer is given a second chance, as it is very much similar to giving a bullet again in the hands of a person who has already missed it once.
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- Akanksha Madaan, Capital punishment on rarest of rare case: Is it just and fair?, manupatra.com, http://docs.manupatra.in/newsline/articles/upload/dfa397d3-b539-419d-a79b-28d367cfee09.pdf
 Section-354 of the CrPC, 1973
Author: Shubhangi Sharma,
AMITY LAW SCHOOL, NOIDA AND 4TH YEAR/STUDENT