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Capital punishment, commonly referred to as the ‘death sentence’ has been practised in the world from time immemorial. Capital punishment derived from the Latin term which means ‘Regarding the head’, refers to the execution of any individual who has been found guilty of certain major crimes. The history of capital punishment laws can be traced back to the Fifth Century B.C.’s Roman Laws of the Twelve Tablets. Evidence of the codification of criminal laws concerning capital punishment can be found in the Code of King Hammurabi of Babylon that dates back to the eighteenth century B.C. In ancient times, the death penalty included execution, crucifixion, burning alive, dragging the body by a horse, and various other brutal measures. With time, the methods of execution became less severe and limited to a few grievous crimes. In India, capital punishment is mentioned in various contexts in inscriptions related to the Mauryan Empire which mentions the death penalty as a measure to punish the guilty according to the principles of ‘An eye for an eye’. However, in India, capital punishment has undergone several changes over the centuries.
Recent incidents of capital punishment have triggered the issue of the constitutional and moral validity of sentencing death penalty, dividing the society into 2 major groups: one section, that believes in the constitutional validity of capital punishment and considers it be the right form of punishment for heinous crimes and the other section that regards capital punishment to be morally unjustifiable and impermissible on the grounds of violation of human rights.
CONSTITUTIONAL VALIDITY –
Capital punishment has been part of the Indian Penal Code since 1898. The Indian penal code of 1860 provides for the imposition of capital punishment in various circumstances; Section 121 (Waging, or attempting to wage war, or abetting waging of war, against the Government of India), Section 132 (Abetment of mutiny, if mutiny is committed in consequence thereof), Section 194 (Giving or fabricating false evidence with intent to procure conviction of capital offence), Sections 302-303 (Murder), Section 305 (Abetment of suicide of child or insane person), Section 307 (Attempt to murder) and Section 396 (Dacoity with murder).
Capital punishment is based on the belief that according to death penalty deters violent crime and makes society safer. India is one of those countries that haven’t abolished capital punishment entirely. The death penalty in India is based on the ‘Rarest of the Rare’ doctrine and is accorded only in exceptional or rare cases. This doctrine was established in the Bachchan Singh v. State of Punjab (1980) case which raised the question of the constitutional validity of capital punishment for murder (Section 302). In this case, the appellant was convicted of three murders and was sentenced to death. The case was tried in the Supreme Court when the High court rejected the appeal. It was in this case that the Supreme Court held that capital punishment should be imposed only in exceptional cases. Justice A.K. Ganguly of the Supreme Court has termed the award of death sentence as “barbaric, anti-life, undemocratic and irresponsible” which is “legal” in the prevailing judicial system. Section 303 of the IPC was struck down as violative of Article 21 and 14 of the Constitution of India in the case of Mithu v. State of Punjab (1983) as the offences under this section was punishable only by death penalty which results in an unfair and unjust procedure and obstructs justice by courts by binding its discretions and limiting its powers.
The Supreme Court laid down broad outlines of the circumstances when the death penalty should be imposed in the case of Machhi Singh v. State of Punjab (1983). Five categories of cases that could be considered as rarest of the rare were identified. They were –
• Firstly – Manner of Commission of murder
• Secondly – Motive
• Thirdly – Anti-social or socially abhorrent nature of the crime
• Fourthly: Magnitude of the Crime
• Fifthly: Personality of the victim of murder
The first challenge to the death penalty came in 1973 in the case of Jagmohan Singh vs State of Uttar Pradesh. This case is one of the landmark cases in the history of India concerning capital punishment. In this case, 3 arguments were presented by the counsel for the appellant–
• That the execution of the death penalty takes away all the fundamental rights guaranteed under Article 19 of the constitution of India and thus, it is unreasonable.
• There are no fixed standards or policy for execution and it is completely on the discretion of the judges and thus, violative of Article 14 of the Indian Constitution.
• Article 21 of the Constitution guarantees the right to life and thus, considered to be unconstitutional.
Judgement – The five-judge bench, by a unanimous verdict, upheld the constitutional validity of capital punishment and that it was not violative of Articles 14, 19 and 21. The Menaka Gandhi case judgement asserted that any procedure established under Article 21 needed to be fair, just and reasonable, and couldn’t be fanciful, oppressive, and arbitrary.
Thus, in India, capital punishment is neither abolished completely nor has created laws specifying its legality and validity. But it has been granted constitutional validity as the courts can sentence the guilty to the death penalty depending upon the grievous nature of the crime committed.
Capital punishment is condemned on the grounds of violation of human rights to life. Despite capital punishment being constitutional, the section of the society against the death penalty consider it to be a violation of the principles mentioned in the constitution; Article 14, Article 19, and Article 21. It is of the belief that since the Indian justice system follows the reformative punishment approach, according to the death penalty would be ineffective as it would not fulfil the essentials of the reformative punishment approach, i.e. the objective of punishment needs to be reformed by the offender. They believe that the purpose of punishments is to bring deterrence amongst the offenders and capital punishment does not fulfil this purpose. Until now people continue to debate the permissibility of capital punishment.
Indian justice system believes in reformative as a form of punishment. ‘Everyone must be given a chance to reform’ is the belief on which the Indian justice system functions on. The argument that individuals are less likely to commit violent crimes, including murder, if they know they will face punishment by execution was proven a myth when it was argued that many crimes are committed on the spur-of-the-moment, leaving little room for potential punishments to influence whether the crime is committed in the first place as criminals do not believe they will be caught and held to account and it could in turn even cause further rebellion. Evidence from around the world has shown that the death penalty has no effective deterrent effect on crime. Data from Amnesty International proves that states or countries that have abolished the death penalty were able to bring down the average crime rates compared to those that accorded capital punishment. In 2004, in the US, the average crime rate for the states that accorded the death penalty were 5.71 per 100,000 of the population in comparison to 4.02 per 100,000 in the states that did not use it. Similarly, Canada, in 2003, recorded a fall of around 44% in the crime rates 27 years after capital punishment was abolished. Some of them consider capital punishment to be morally unjustifiable as it is entirely disproportionate to the extent of harm done. While others argue that capital punishment violates a person’s right to life.
Capital punishment has been both a success as well as a failure when it comes to reducing crime rates. In some countries such as Singapore, which imposed capital punishment for possession of drugs, capital punishment has proven effective in keeping the crime rates relatively low. Whereas on the other hand, several other countries such as Iraq, despite using capital punishment, has been unsuccessful in curbing down the crime rates.
Some countries and states that once abolished the death penalty were forced to revert to the punishment when they could not curb the rising rate of crime in their societies. “Bad guys deserve to suffer” is the common belief of the people who are in support of capital punishment and believe that retribution is not about revenge. While in some cases capital punishment acts as a deterrent and in the rest, it stirs up more rebellion. Through the years, different countries and people have been indecisive on their stance as to retain or abolish capital punishment. In the end, it’s the type of country, its composition and diversity that determines the application and effectiveness of any law. Capital punishment can be a success or a failure depending on the situations and circumstances it is applied to, and the debates on the constitutional and moral validity of capital punishment continues to this day.
- Blackshield, A.R. “CAPITAL PUNISHMENT IN INDIA”, Journal of the Indian Law Institute, vol. 21, no. 2, 1979, pp. 137–226. www.jstor.org/stable/43950631. Accessed 12 Aug. 2021.
CITATIONS OF THE CASES STATED –
- Bachan Singh vs. State of Punjab, A.I.R. 1980, S.C 898.
- Machhi Singh vs. State of Punjab, A.I.R. 1983, S.C 957.
- Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947.
- Mithu v. State of Punjab, AIR 1983 SC 473.