Authored By: Nandini Mahajan
“An eye for an eye makes the whole world blind.” Mahatma Gandhi
Introduction
Capital punishment, also known as the death penalty, is the most severe and grave form of punishment given for the heinous, grievous, ridiculed, and revolting extreme crimes against humanity. It is the highest legal punishment for a crime under Bhartiya Nyaya Sanhita, 2023, as well as other laws.
Evolution
Pre- Independence
During the Mauryan Dynasty, if any act against the dynasty law was performed, then the punishments were provided according to the nature of the act. The punishment was provided on the basis of an eye for an eye, a hand for a hand, etc. The criminal laws were first codified by King Hammurabi of Babylon related to the death penalty/capital punishment.
During the British reign, the death penalty was provided, and the wrongdoer was hanged till death after the proper trial or even before it.
Since India got independence, a new era of Indian judicial system came.
After Independence
After 1947, when India got its independence from the British era, there was a huge change that was introduced in the system for passing death penalties to accused. Five years after the Indian constitution was made, capital punishment was normal for murder. In 1955, discretion was given to session judge either to impose life imprisonment or a death sentence on the convict. In 1973, the Code of Criminal Procedure was amended, and it was stated that before imposing capital punishment, the session judge has to show reasons for the same. Then In Bachan Singh vs. State of Punjab, it was held that capital punishment should be imposed only in exceptional circumstances that are only in the rarest of rare cases.
Capital Punishment in India
Capital Punishment is a legal death penalty. It is an integral part of the Indian criminal justice system. India gives capital punishment only for a heinous offence in the rarest of rare cases.
As per Section 368 of the Criminal Procedure Code, 1973, it provides the authority to high courts for confirmation of a death sentence.
Methods of Execution in India
In India, there are two methods of the providing death penalty:
- Hanging
- Shooting
Landmark Cases Related to Capital Punishment in India
Jagmohan Singh vs. State of U.P.[1], In this case, the Supreme Court held that the right to life and personal liberty guaranteed under Article 21 to every person in India is not absolute, and deprivation of life is constitutionally permissible provided done according to the procedure established by law.
Bachan Singh vs. State of Punjab2,in this case, the Supreme Court propounded the doctrine of rarest of rare cases. It was held that the extreme penalty could be inflicted only in the rarest of rare cases.
In Machhi Singh vs. State of Punjab[2], the principle laid down in Bachan Singh was adopted in this case. It was held in this case that there is a requirement of preparing a balance sheet of aggravating and mitigating circumstances before the death penalty can be awarded.
Shabnam vs. State of U.P.4, In this case, the accused was charged under sections 302, 34 of the IPC. This case falls under the rarest of the rare case category, as an infant was also killed and there was no remorse shown by the accused. By analyzing the aggravating and mitigating factors, the accused was given a death sentence.
Methods of Execution in India
In India, the death penalty is performed by two methods:
- Hanging
- Shooting
Certain offences under Bhartiya Nyaya Sanhita for which offender can be sentenced to death punishment:
- Murder (Section 103(1))
- Felony murder while committing dacoity or banditry (Section 310(3))
- Lynching (Section 103(2))
- Treason against the Government of India (Section 147)
Procedural safeguards and clemency powers
India’s legal system has provided safeguards to ensure the death penalty is not imposed arbitrarily. Under the Criminal Procedure Code(CrPC), now Nagarik Suraksha Sanhita, a death sentence imposed by a lower court must be confirmed by the High Court. If the High Court confirms the sentence, the convict has the right to appeal to the Supreme Court.
Additionally, the President of India and state governors have clemency powers under Articles 72 and 161 of the Indian Constitution[3], respectively. They can commute death sentences to life imprisonment, grant pardons, or stay executions.
Pros of Capital Punishment
- Prevent heinous crimes in society: By imposing the capital punishment for the most ridiculed crimes, the heinous crimes in society can be prevented.
- Deterrence: Supporters in favour of capital punishment argue that the fear of facing the death penalty can deter people from committing serious crimes, ultimately leading to a safer society.
- Retributive: It is also argued that a criminal should get what he deserved in proportion to their crime. Many supporters for death penalty mention that ‘eye for an eye ‘is appropriate, the punishment should match the crime. For example- murder deserves the death penalty.
- Justified Punishment for Heinous Crimes- It is also argued that capital punishment is the fit and justified punishment for the heinous crimes.
Cons of Capital Punishment
- Risk of wrongful conviction: One of the biggest risks is that if someone is wrongfully convicted and sentenced to death, their life is irrevocably lost.
- Execution of innocent: Many believe that the risk of hanging an innocent person can never be eliminated. A mistaken conclusion by the judiciary can take the life of an innocent.
- Ethical and moral consideration: Many believe that taking the life of someone is not morally correct, irrespective of the crime they have committed. It is considered as a cruel and inhumane act.
- Arbitrary: Capital punishment is often considered as arbitrary imposed. Since there are no proper sentencing guidelines which are uniformly followed, so it is often argued that there lies arbitrariness in providing death penalty.
Suggestions
- Elimination of the crime: The main focus should be on eliminating the crime and not only the criminal. As the very purpose of the Indian criminal system is to have an orderly society where peace exists.
- Proper Implementation: In order to ensure that the capital punishment is given to one who deserves it, there should be proper application of the Bachan Singh and Machhi Singh cases.
- Reformation: Before giving the death penalty, the emphasis should be laid on the chances of reformation of the accused. If it is shown that there are chances of improvement for the accused, then instead of imposing the death penalty, other penalty should be imposed.
Conclusion
Death penalty is still a complicated issue involving potential assertions from both sides. There is a need to create harmony among both. Need of hour is to frame proper sentencing guidelines addressing the issue at core level.
Death penalty should try to strike a balance between life and liberty of person and deterrence to be created in case of the heinous crimes. The government and legal faculty should work together to provide a solution.
References
https://www.legalserviceindia.com/legal/article–10250–the–capital–punishment–systems–inindia–.html#google_vignette
https://www.drishtiias.com/printpdf/death–penalty–2 https://lawbhoomi.com/history-of-capital-punishment-inindia/#Procedural_Safeguards_and_Clemency_Powers
[1] Jagmohan Singh vs. State of U.P. [1973] 1 SCC 20. 2 Bachan Singh vs. State of Punjab (1982) 3 SCC 24.
[2] Machhi Singh vs. State of Punjab 1983 AIR 957. 4 Shabnam vs. State of U.P, (2015).
[3] Indian Const. art. 72 and 161.
