Authored By: Rohit Yadav
GNLU GANDHINAGAR
INTRODUCTION
In India death penalty still in practice but it is widely used only when the quantum of offence is much higher such as rape, brutal murder. The Supreme court of India held in Bachan Singh v. State of Punjab (1980[1]) that the death penalty must be sentenced in the most heinous crimes or in brutal murder where the doctrine of rarest of rare case apply but in a country which use to advocate for human rights how can it award capital punishment as it is violation of Article 21 itself. To determine whether the accused be liable for the death penalty depends on the quantum of offence and on the Rarest of rare doctrine.
Capital punishment is an ancient concept which is found almost in all cultures of society. In Previous times, humans being fought with each other for food, sex etc. Because of which they harm to humanity from eye for eye and tooth for tooth, or blood for blood was the common practice in ancient time to do justice. Gradually, the world changed with the thinking and customs of the society.
Further In this article we will examine the ancient law, current law and case laws on the death penalty to arrive at a conclusion whether this act of awarding death penalty is possible without encroaching the fundamentals rights or is it necessary to encroach the rights of the accused to provide justice to the victim.
ANCIENT LAWS :
Capital punishment often based on the principle of lex talionis “eye for an eye”, were prevalent across early civilizations including Babylon, Rome and India, to punish crimes like treason, theft, murder.
In India prevalent text related to capital punishment were rooted in religious texts and early legal treatises like Manu smriti and Kautilya’s Arthashastra primarily using capital punishment to maintain the social order, caste system. It was coercive authority to deter crime and give punishment according to the crime but it often varied sparing brahmins and women based on caste and gender dynamics.
Manu smriti prescribed the capital punishment for the crimes against the state and public at large and Maurya period Kautilya’s Arthashastra supported it for the offences such as murder, theft, treason. Underlining principle behind this was that punishment meant as deterrent to protect society rather than mere retribution. Methods of punishment harsh and designed to swift depending upon the crime and perpetrators status.
In which Exception and Discretion exists but only for the Higher caste where Brahmins were frequently exempt from death penalty, receiving lesser punishments like banishment or shaving head a practice that persisted in some areas until British rule. Also King had the absolute authority[2].
III. MODERN LAWS
In India for the first time in the chairmanship of Lord Macaulay, the India penal code has been made and came into existence on 6 October 1862[3]. Mostly death penalty given under the heinous crimes against the society an the moral norms and values. There are many provision under the Indian penal code prescribes death penalty as punishment ; some provisions are punishment for murder, waging war against the government, abetment to insane and child, abetting mutiny , dacoity with murder. There are many kind of punishments under Indian law like life imprisonment, rigorous imprisonment and death penalty which are most sever under the legal system. This aims to remove crimes against human beings and to provide justice to them. The death penalty is always in argument because of it endangers the human rights. It is always in news mainly by those who are in Favour of retention and in advocation for abolition of death penalty.
PROVISIONS OF INDIAN PENAL CODE (IPC)
This article examines the some provisions of the Indian penal code to understand on the basis of what provisions a person can be awarded Capital Punishment.
Section 147 of BNS (Section 121 of IPC)
This section comes under the Chapter VIII in which offences against the state are mentioned and their punishment. It clearly refers in it that now matter who the person is if he commits wage war against the Government of India or attempts wage war or abets such war, that person shall be punished with the death, or imprisonment for life and shall also be liable to fine. It meant that person will be punished for the that offence and also be liable to fine. It ensures that if any event arise likewise, the government will be able to punish them and maintain peace in the state but this article examines that in someway or other this “abets the waging of such war” wording in section might be misleading because suppose if a person watches the video of XYZ social activist gives a critical remark about the contemporary ruling government. There is a possibility of misuse.
Waging, or attempting to wage war, or abetting waging of war, against Government of India.
“Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine”.[4]
Section 152 of BNS (Section 124-A of IPC)
This section deals with sedition where it briefly covers almost every act which is possible to commit a sedition. The framing of section gives a wider acknowledgment of further possible acts which can be included in the section. The punishment in it is Imprisonment for life or imprisonment which may extend to seven years, shall also be liable to fine.
It states :-
“Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine”[5]
Section 160 of BNS (Section 132 of IPC)
This manages the offences connecting with Army, Navy and Air force where whoever abets committing of mutiny by an officer of these forces and this part of section forces capital punishment on that person or imprisonment of either description for a term which may extend to ten years, shall also be liable to fine. In it also a Possibility of misuse by the officer, by blaming other person by the distortion of fact.[6]
“Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, shall, if mutiny be committed in consequence of that abetment, be punished with death or with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.[7]
CASE LAWS
The death penalty is constitutional but restricted to the certain case and how it is decided is by the “rarest of rare doctrine”. It was held in Bachan Singh v. State of Punjab case ad supreme court established this doctrine to balance aggravating and mitigating circumstances by focusing on reformation of both crime and criminal’s potential.
Bachan Singh vs State of Punjab (1980)
In this case, Bachan Singh convicted for the brutal murder of three people where killed them, allegedly over domestic issues and housing arrangements with axe. He was arrested and charged under 302 of IPC for multiple murder. Trial court convicted him and imposed with the death penalty. This decision confirmed by High Court of Punjab and Haryana. Then, Bachan Singh appealed to the Supreme Court, challenging his conviction and the constitutionality of the death penalty[8]. In this case, court laid down the “rarest of rare” test as the binding standard for awarding death penalty. The Supreme Court found no mitigating factor strong enough to outweigh the aggravating ones[9]. Therefore, Court upheld the Death sentence. But P.N Bhagwati dissented from the majority because Death penalty is inhuman, arbitrary and this “ rarest of rare” test is too vague and subjective.
Machi Singh and others vs State of Punjab (1983)
In this case, Machi Singh was convicted because he orchestrated the killing of 17 people. The motive behind the violence was a long standing family dispute and took a brutal revenge from victim family member. He was convicted and awarded with death penalty, filed appeal before High Court of Punjab and Haryana but there appeals were rejected. Then appealed before Supreme court it also upheld the death penalty[10]. It was decided on the basis of rarest of rare doctrine where it examined the gravity of the offence, aggravating and mitigating circumstances. It reinforced the application of rarest of rare doctrine and provided a detailed framework for imposition of death penalty[11].
Kuljeet Singh vs Union of India
In this Supreme denied the special leave petition filed by the accuses Ranga and Billa. They were sentenced to death for the murder of teenage girl and younger brother. The Court examined that death of children’s was the result of well planned with a professional stamp. The death sentence upheld because both Ranga and Billa who are menaced to the society[12].
4.Vinay Sharma vs Union of India (2020)
This case also known as Nirbhaya gang-rape case, which had shocked the conscience of the human because the act which was done by the convicts was very inhuman, brutal and barbaric. This brutal incident occurred in Delhi on a bus. The victim was brutally rapes by the six accused which led to the death of the victim. They also inserted iron rode into her private parts and she was thrown naked to the road. When case brought before the court, out of six accused only four were sentenced to death and were also hanged in the year 2020. Other two accused one committed suicide and other one was juvenile as he was not sentenced to the death. This case shocked the everyone’s conscience and left numb because this kind of act is very cruel and inhuman. [13]
CONCLUSION
This article examined and analyzed the ancient laws to understand how the societies in ancient time dealt with the person , whoever commits the wrongful act. Then it article delves into the modern laws which are primarily used in contemporary time to deal with the person whoever commits the wrongful act. After proceeding further we discussed few provision in which death punishment has been mentioned but this will no be the only factor for awarding death sentence. Article also briefly discussed about the case laws in which there has been a “rarest of rare” doctrine established by the Supreme Court of India in the case of Bachan Singh vs Union of India. This doctrine established that death penalty can be given in “rarest of rare case”. A case which shocks the conscience of society and done brutally which is very uncommon in common society – for reference we have discussed in above case law named “Vinod Sharma vs Union of India” this case also known as Nirbhaya gang-rape case, which was the brutal and cruel wrong act done shocked the conscience of the society. After analyzing all these fact the article comes to its conclusion that if a death penalty given in rarest of rare case could be justified when the barbaric wrong acts done which is threat to the society. Awarding death penalty could be justified when it is given on the basis of Quantum of the act that was it uncommon act in the common society which puts people’s in danger, how the act was done and what was the motive behind the wrongful act. In end, this concludes that death penalty could be justified when decided under “rarest of rare” doctrine but this doctrine is very subjective could lead to irreversible error.
REFERENCE(S):
[1] Bachan Singh vs State of Punjab 1980 AIR1980SC898 https://indiankanoon.org/doc/307021/
[2] https://en.wikipedia.org/wiki/Religion_and_capital_punishment
[3] https://prsindia.org/articles-by-prs-team/ipc-is-history-in-1837-how-macaulay-cracked-the-code
[4] https://en.wikipedia.org/wiki/Section_147_of_the_Bharatiya_Nyaya_Sanhita, https://www.indiacode.nic.in/bitstream/123456789/20062/1/a202345.pdf
[5] https://www.indiacode.nic.in/bitstream/123456789/20062/1/a202345.pdf ,https://en.wikipedia.org/wiki/Section_147_of_the_Bharatiya_Nyaya_Sanhita
[6] https://www.indiacode.nic.in/bitstream/123456789/20062/1/a202345.pdf
[7] https://www.indiacode.nic.in/bitstream/123456789/20062/1/a202345.pdf
[8] https://blog.ipleaders.in/analysing-the-judgment-of-bachan-singh-v-state-of-punjab-1980/#Prominent_issues_raised
[9] https://indiankanoon.org/doc/307021/
[10] https://lawbhoomi.com/machhi-singh-vs-state-of-punjab/
[11] https://indiankanoon.org/doc/545301/
[12] https://indiankanoon.org/doc/582949/
[13] https://indiankanoon.org/doc/118510739/,https://blog.ipleaders.in/landmark-cases-on-death-penalty-in-india/#Vinay_Sharma_v_Union_of_India_2020
