Author: Kshitij Raj, Student at Law College, Dehradun Uttaranchal University.
A punishment is consequence of an offence. Punishment are imposed on wrongdoer with the object to deter them to not to repeat the same wrong doing and reform them to law-abiding citizen. All punishments are to be based on the same premise, there must be a fine for wrong discourse of action. The kind of punishment to be imposed on the criminal depend or is influenced by the kind of society one lives in. The reasoning behind giving punishment to wrongdoers are that, to make realise the pain suffered by aggraded to the wrong doer, or to set an example in society, so that in future no one dares to do that.
Like all the other punishments capital punishment sets the same proposition Provision related to Capital Punishment is mentioned under Indian Penal Code and Code of Criminal Procedure. Death penalty principle is based on deterrent theory of punishment which general term sets an instance by inflecting terror in the mind of others.
THEORIES OF PUNISHMENT
1. Deterrence theory:
The term ‘deter’ means to abstain from doing an act. Deterrent means something that deter somebody or something from taking action or prevent something from happening specially by making people feel afraid or anxious.
Aim-To set an example in the society and to create fear in the minds of individuals.
2. Retributive theory:
Retribution refers to the punishment given for the acts done by someone. As per this theory same injury to the wrongdoer is retained, which has been committed by the person against the victim. It is based on the principle of ‘a for an eye, tooth for tooth’.
Aim-To realise the criminal the suffering of the pain by subjecting him to some kind of pain as he had committed against the victim.
It is said “Prevention is better than cure”. The preventive refers to the purpose of avoiding something used or deused to prevent the happening of something. The theory gets its importance from the notion that society must be protected from criminals. Thus, the punishment here is for solidarity and defence.
Aim-To prevent the crime rather than avenging it.
4. Reformative Theory:
‘If every saint had a past, then every criminal has a future’ . Reformation is a synopsis to the word ‘Improvement’ Reform means change and it improve somebody by correcting faults and removing inconsistencies , and imposing modern method to change the behaviour of criminal by providing him with the education and treatment necessary to eliminate criminal tendencies as well as shall to become productive member of society.
Aim-To rehabilitee offender.
MEANING OF CAPITAL PUNISHMENT
Capital punishment means, the state sanctioning the life and liberty of an individual. Death penalty and it can define as legal inflection of death as the penalty for a unlawful act. It is imposed by governing authority of a country. Capital punishment is generally proposed in foremost, grievous and heinous crimes. Death sentence is one of the highest degree of punishment which could be awarded under any of the penal law which is in force. 
The first established death penalty law date as far back as the eighteen century B.C in the code of king Hammurabi of Babylon, which codified the death penalty for 25 different crimes. No country has been existed till the time where there is no death penalty. The history of human civilisations shows that capital punishment has not been abandoned as a form of punishment for any period of time. Capital punishment under the laws of Draco was commonly used in ancient Greece for murder , treason, arson and rape, although Plato argued that it has to be used for the incorrigible. The Roman often used it for a wide variety of crimes, but during the republic civilians were exempted for a brief period.
Both in Germany and Australia, offender was put into a ditch and was covered up to neck with mud , his head was kept out side the earth and was hinted by the wheels of the vehicle and eyes were towed by the hot iron rod.
SOME ANCIENT FORMS OF PUNISHMENTS ARE:
- The Garrote
– Places: Spain
– Guilty of : murder ,banditry or terrorism
– Prisoners would be seated with their back against a post ,and a rope loop which was also attached to pole would then be placed their necks.
- The breaking wheel
– As its associated with saint Catherine of Alexandria hence it also known as ‘Catherine wheel’ .
-Places -France and Germany
-Guilty of – aggravated murder
-The victim would be smashed to the wheel , and a stick or iron cudgel was then used to blat his limbs.
3. Poena cullai
- Also known as ‘Punishment of the sack’ .
- Guilty of – Parricide
- The offender was sewn up inside a leather sack along with an assortment of live animals and thrown into water.
- In the form of punishment, the criminals who are convicted are supposed to place within an enclosed space which does not have the exits.
- In Scotland , this form of capital punishment was reserved mostly for convicted murders. In the bodies of executed murderers would either be dissected or hung in chains.
6. Execution by elephant
- This form of punishment was mostly used in Asia , victim was thrown under the legs of elephant.
WHICH CRIMES ENTAIL CAPITAL PUNISHMENT IN INDIA ?
- 120B – criminal conspiracy
- 121 – waging war against G.O.I
- 132– Abetting mutiny in armed forces
- 194- Fabricating false evidence
- 302- murder
- 305- abetting the suicide of minor or insane
- 364A- kidnapping for ransom
- 376A– Rape
- 396- banditry with murder
Similarly, under the Arms act there are provisions, the narcotics psychotropic and drugs substance Act, the scheduled caste and scheduled tribes (Prevention of atrocities) Act, the commission of Sati(prevention) Act and the Navy Act wherein punishment is prescribed as one of the punishments for serious offences.
However, there were some acts which are now repealed also contained capital punishment like: Disruptive (Prevention) Act and Prevention of terrorism Act (POTA) and terrorist.
In India, the court is not bound to award a death sentence in the above cases, but it may do so . In England , the sentence of death is compulsory for the offence of murder but in India accused in murder case may be awarded death sentence or imprisonment of life.
MANDATORY DEATH PUNISHMENT
When we talk about death sentence, then in India there is always an alternative i.e. life imprisonment But in Sec.303 of IPC there is a provision which talks about mandatory death sentence. Sec.303 provides that whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.
However, in Mithu v. state of Punjab  it was held by the S.C that the death penalty which is compulsory is unacceptable and unauthorized in nature. However, none of the observations were given on the consequential regulation for drug and criminal crimes where the death penalty is considered to be compulsory.
COUNTRIES THAT CARRY OUT EXECUTION THROUGH JUDICIAL PROCEEDINGS
As per the Amnesty International’s 2014 report on the death penalties, in the year 2013 , minimum there has been 778 executions which were were reported in 22 countries , and more than 96 in 2012 with atleast 369 executions in the year , The list is topped by Iran. Which is followed by Iraq[169+] , Saudi Arabia[79+] ,USA and Somalia , where at least 34 judicial executions has been taken place , other countries has reported that more than 10 executions were there in Sudan and Yemen. The global executions figures do not include China which is believed to have been performed 1000 convicts. China categorizes death penalty as the penalty of the state which is a secret of the state. In the year 2013 around 1925 people were sentenced to death in the 57 countries of the world as the report suggested. The report also shows that at least 1925 people were sentenced to death in 57 countries in 2013. Death row inmates globally has become 23392 as of the year 2013.
The methods of execution has different variety from guillotining, hanging, poisonous injection to gunfire.
COUNTRIES WHERE DEATH SENTENCE HAVE BEEN ELIMINATED
As per the report of Amnesty International more than two-thirds of the countries have eliminated the death penalty in their statue or practice by the end of the year 2013. Total 98 countries have removed this for all its crime. Most of them are in Western Europe, and seven nations, including Brazil, Chile and Kazakhstan, have abolished them for ordinary crimes. In these nations, only extraordinary offences, such as crimes committed under military rule or under extraordinary rule, can be punished with death penalty. Rest 35 countries are differentiated as abolitionist in practice. Only for ordinary crimes they retain death penalty but for 10 years there has been no execution for this. Around 58 countries legal system have retained the death penalty. World’s more than the half population live in these countries.
INTERNATIONAL HUMAN RIGHTS TREATIES ON CAPITAL PUNISHMENT
- The imposition of death penalty in international human rights law is discussed in one of the key documents of the international covenant on civil and political rights (ICCPR) . The use of death penalty is not abolished under the ICCPR, but article 6 contains guarantees regarding the rights law to live and contain important safeguards to be followed by signatories who retain the death penalty.
- The only treaty which is specifically dealing with the abolition that is available to signatories from all countries in the world is the second optional protocol to the ICCPR which has aimed at abolishing the death penalty. It came into force in 1991, and has 81 parties and 3 signatories.
- Similar to the ICCPR, Article 37(a) of the Convention on the Rights of the Child (CRC) indirectly forbids the use of the death penalty against persons under the age of 18 As of July 2015, the CRC had been ratified by 195 countries.
- Sources of jurisprudence for limitations on the death penalty as well as necessary safeguard have made the convention against the cruel, torture, in-human or the degrading treatment of human or punishment and also the VN committee against the torture. The imposition of death penalty is not regarded by the torture convention as as a form of torture or cruel, inhuman or degrading treatment or punishment. However, some methods of executions and the phenomenon of death row have been seen as form of CIDT by UN bodies.
- After the evolution of international criminal law, as per the Nuremberg and Tokyo Tribunals death penalty amounted to be punishable punishment, the bot which has been established following the World War II. Since then however, international criminal courts exclude the death penalty as a permissible punishment of the treaties mentioned above, India has ratified the ICCPR and CRC, and is signatory to the torture convention but has not ratified it. Under international law, treaty obligations are binding on states once they have ratified the treaty. Even where a treaty, has been signed but not ratified, the state is bound to “refrain from acts which would defeat the object and purpose of a treat
UNITED NATIONS ON CAPITAL PUNISHMENTS
- The use of death penalty has been called for suspension by the several resolutions of the UN General Assembly (UNGA). The UNGA called on states to “progressively restrict the use of death penalty, reduce the number of offences for which it may be imposed” and establish a suspension on the use of the death punishment in the year 2007. In 2008, this resolution was reaffirmed by the GA, which was expanded in subsequent resolutions in ‘2010, 2012 and 2014.’ It was noted by many of these resolutions, “a moratorium on the use of the death penalty contributes to respect for human dignity and to the enhancement and progressive development of human rights”. In the year 2014, India did not vote in the favour of the resolutions whereas 117 states voted in the favour.
- In resolution of 2013, the negative impact of the parent’s death sentence has been observed on their children and the states are being urged to look after the protection of the children and the aid and safety might be required to them by the Human Rights Council. It has been noted by 2014 Human Rights Council Resolution, that ‘The death penalty or a ban on its use has been abolished by states with different legal systems, customs, societies and religions and dipoles the fact that the use of the death penalty contributes to infringement of human rights.
CAPITAL PUNISHMENT IN INDIA
“We are all the creation of God. I am not sure a human system created by human being is competent to take away a life based on artificial and created evidence” -APJ Abdul Kalam
- The ruler of a certain state has the supreme authority and the source of all justice during the age of empires in India. Thus, the ruler had the power to sentence any man to death, even on a whim, whoever he or she might be.
- There have been uncountable examples of Indians being hanged after trial or even before it.
- However, the method of awarding death sentences has been changed drastically after 1947, when India became a democratic state.
- In compliance with the clauses enriched in the Indian Constitution, the Indian Penal Code provided only for the grant of capital punishment for such particular offences.
- Article 21 of the Constitution, states that every citizen has fundamental right to life, and it also specifically mentions that no person shall be deprived of his life and personal liberty except according to the process recognized by law.
- India reserved several laws that were brought by the British colonial government, which include the code of Criminal Procedure,1898(C.R.P.C) and Indian Penal code, 1860(IPC)
- Section 367(5) of the CRPC 1898 required courts to record reasons when the court chose not to impose a death sentence for offences where the death penalty was an option: —
“If the accused is connected of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgement state the reason why sentence of death was not passed”
In 1955, the Parliament repeated section 367(5), CRPC 1898, mentions the changing the position of death sentence. The courts did not need special reason for why they were not imposing the death penalty in cases where it was a prescribed punishment as the death penalty is no longer the norm.
The Code of Criminal Procedure was enacted again in the year 1973, and numerous changes were made, particularly in section 354(3).
“When the connection is for an offence punishable with death or, in the alternative, with the imprisonment for life or imprisonment for a term of year, the judgement shall state the reason for the sentence awarded, and the case of sentence of death, the special reasons for such sentences”
This was a marked improvement from the situation after the 1955 amendment (where conditions of confinement) and death penalty were probably similar in a Capital case) and a change of the position under the law of 1898 Crpc (where life sentences were the standard and if any other penalty was imposed, the explanation had to be recorded). Judges had to give specific reasons for why they levied the death penalty.
These modifications also presented the possibility of post connection judgement hearing on sentences, which includes the life sentences, under section 235(2), which states:-
“If the accused is connected, the judge shall, unless he proceeds in accordance with the provisions of section 360, here the accused on the question of sentence, and then pass sentence on him according to law”
DOCTRENE OF “RAREST OF RARE”
Doctrine of “rarest of rare” test decides the case of death penalty in India which was stated in Bachan Singh v. State of Punjab which means that life sentence would only be granted in case which is rarest of the rare nature only.
- In the case of Bachan Singh v. State of Punjab, the Supreme court opined that life sentence has to be given only for the case which are of rarest of the rare in nature. The court further held that Capital punishment should be given only when the choice of giving the life sentence is “Unquestionably foreclosed”.
The court gave it’s view that when the court can take advantage of the alternative to life imprisonment, then why the court should go for such an inhuman punishment as the death penalty.
- Further in the case of Santosh Kumar Bariyar v. State of Maharashtra  the supreme court further explained that “Then rarest of rare” dictum only serves as guidelines in enforcing the provisions mentioned in section 354(3) of CRPC and entrenches the policy that life imprisonment is the rule and death punishment is an exception.
The certain circumstances in which life sentence could be used as an alternative is defined by the Indian Judiciary under the case of Macchi Singh and other v. State of Punjab which are as follow:
- If the murder committed is highly horrific, absurd, sinister, rebellious, or contemptible, it awakens the community into strong and extreme outrage. For instance: – Setting someone’s house on fire with the intention of burning them alive.
- The extent of the crime committed is at a huge scale that it has caused the multiple deaths.
- When caste and greed of the person is major cause for committing the murder.
- When the offender’s motive was brutality or total depravity.
- When victim of the murder is an innocent child, a helpless woman or person (due to old age or infirmity), a public figure, etc.
But it’s difficult and subjective to determine what can amount as rarest of the rare crime.
In Mukesh and Anr. v. State For NCT of Delhi and others (Nirbhaya case)
Justice Radhakrishnan stated that “Rarest of Rare” case does not depend upon discretion of Judges but would depend upon society’s abhorrence for certain crimes.
CONSTITUTIONALITY OF DEATH PENALTY
The fundamental right to life and liberty for all person is mentioned under Article 21 of the Constitution. It says “No person shall be deprived of his life and personal liberty except according to the procedure established by law”. This has been constitutionally construed to mean that if there is a fair and legitimate process, then the state may deprive a person of his life by framing the law.
In various cases, several times the validity of death penalty was questioned but the decision every time remained same to not to eliminate capital punishment.
It was first challenged in Jagmohan Singh v. State Of UP. The argument was that the death penalty is violation of Article 14, 19 and 21, which the Supreme Court’s five-judge bench unanimously dismissed. The court held that the death penalty is a decision taken by the court in compliance with the process provided for by statute and that the option between the death penalty and life imprisonment is based on the circumstances, nature and facts of the case.
In Rajendra Prasad v. State Of UP, it was said by Justice Krishna Iyer that the death penalty violates the Article 14, 19 and 21. He mentions two situations under which life sentence could be given: –
1) Special reasons have to be recorded by courts while awarding death sentence
2) Penalty has to be imposed only in the cases which are extra-ordinary in nature.
However, in the case of Bachan Singh v. State Of Punjab. The five-judge bench (4:1 Bhagwati J.) overruled the decision of Rajendra Prasad ‘s case within one year of judgement. The judgement declared that the death penalty is not in violation of Articles 14, 19 and 21 of the Constitution and ruled that the “Rarest of the Rare” case, i.e. cases in which the community’s collective mind is so shaken that it can be directed to expect the Judiciary to deliver the death penalty.
In Sher Singh v. state Of Punjab  it has been opined by the court of law that the life sentence does not nullify the rights which are given under the constitution of India.
Right to Die, Is it covered under Article 21?
The legitimacy of the right to die lies in the history of the case of State v. Sanjay Kumar Bhatia  in which the HC of Delhi disapproved Section 309 of IPC as an “anachronism and a paradox” and then it is carried forward by the diverse view of High Courts on Section 309 of IPC.
In the case of Naresh Marotaro sakhre v. UOI  The court noted the disparity between suicide and euthanasia. It was disputed that suicide was an act of self-destruction, without the support or assistance of any other human agency, to end one’s own life, whereas euthanasia was distinct as it requires the involvement of a human agency to end one ‘s life. This mercy killing from nowhere is protected by IPC section 309.
In P. Rathinam v. UOI the court gave relief to the ones who attempt the suicide and Section 309 was held to be irrational and it must be removed from our penal laws.
Later, this was also overruled in the case of Gian Kaur v. State Of Punjab  it was said by the court that right to die must not be included in right to life, and it was also held that it was right to life should be considered as natural right which is given under Article 21 of the constitution, but suicide should not come along with right to life as it was not the natural termination of life. Right to life includes to live with dignity and honor and it should not be taken away by killing themselves. Hence, passive euthanasia was approved and considering right to die with dignity as a part of right to live with dignity.
Therefore, any type involving unnatural termination of life was held illegal until the case of Aruna Shanbaug and the recent case filed by the NGO Common Cause where the legitimacy of the subject was again discussed and a five SC judge-bench recognized and approved passive euthanasia and living will on 9 March 2018 in the case of Common Cause v. UOI. The consequence of this is that now ‘Right to die with dignity’ is a fundamental right. The judgement of this case was delivered by the bench including the chief justice of India Deepak Mishra, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chanrachud and Justice Ashok Bhushan. In the case of Gian Kaur vs. State of Punjab the validity of active and passive euthanasia has not been ruled out.
Convicts who were hanged to death in India since 1991
First person to be executed in Independent India was Nathu Ram Godse in the case of assassination of Gandhi.
In last 20 years , till now only four people were hanged to death out of which one was Dhananjay Chatterjee who was charged of murder and rape of a school girl while the other three were terrorists. Until now 759 people have been hanged as per the according to a study by National Law University in Delhi in the Independent India.
The execution of Dhananjay Chatterjee took place in Alipore central correctional home, Kolkata on August 14, 2004.It took 14 years to execute him. He was charged of rape and murder of Hetal Parekh ,a 14 year old school girl on March 1990.
The second person to be executed in Yerawada Central Jail, Pune, on November 21, 2012, was Ajmal Kasab, a Pakistani militant and the mastermind of the 2008 Mumbai attacks. He was convicted on charges of murder, treason and war. His execution continued till 4 years.
On February 9, 2013, it was Kashmiri terrorist Afzal Guru who was hanged to death in Tihar jail. He was imprisoned for attacks on Parliament on December 13, 2001. His execution continued till 11 years.
After Guru, Yakub Menon was executed in Nagpur Central prison on July 30, 2015, for his role in the Mumbai serial blast of 1993. It took 22 years for the execution of Menon.
For the first time, four convicts were hanged together on the same platform on January 22,2020, i.e. at the gallows site in prison no. 3 of the Tihar prison complex in the capital. Of the six men convicted in the gang rape and murder case in Delhi, Ram Singh allegedly committed suicide in Tihar jail on 11 March 2013. After three years at a reform facility, another inmate, a juvenile at the time the crime was committed, was released. They were executed for 7 years.
Commutation of Capital Punishment
The constitution of India under Article 161&72 empower the Governor of any State and the President of India to grant pardons, reprieves, respites or remissions of punishment or to suspend, pass or commute the sentence of any person convicted of any crime.
a) The cases in which the sentence or punishment is by a court martial.
b) The cases where an offence against any law relating to a matter to which the executive authority of the union / state applies is a penalty or sentence.
c)In all cases where the verdict is a decision of casualty.
Just the once death verdict is awarded by a session(trial) court, the ruling must be established by a High Court to make it finishing.Once confirmed by the High Court , the condemned convicts has the option of appealing to the Supreme Court.If this is not possible , or if the SC turns down the appeal or refuses to hear the petition , can submit a ‘’mercy petition’’ to the President of India and the Governor of State.(article 72&161).
Mercy Petition Process
For a prisoner to file a mercy petition, the High Court must approve his / her death sentence. Ground to seek mercy petition tends to vary from physical fitness, harassing age, law, or the convict is the family’s sole breadearner.
According to Article 72 of the Indian Constitution, the power to pardon philosophy of which is – “every civilized country recognizes and provides for the pardoning power as an act of grace a humanity in course of law’’- lies with the President. The article also states that he/she can grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the convict.
This petition is reviewed by the ministry of Home Affairs, which consults the state which is engaged, before going to the president.
The power of the Governor of state are very similar to that of President under article 161.He can also grant these things to any person convicted of any offence against any law relating to a matter to which the executive power of state extends.
Mercy Petition- Judicial Review
The SC in the case of Shatrughan Chauhan, has noted that the following factors are to be measured while determining the mercy petition.
1) Character of the offender or circumstances of the case.
2) Cases in which the appellant court expressed doubt as to the reliability of evidence but has nevertheless decided on the conviction.
3) Cases where it is alleged that fresh evidence is obtained mainly with a view to see whether fresh enquiry is justified.
4) Where the HC on appeal reversed acquittal or an appeal enhanced the sentence.
5) Is there any difference of opinion in Bench of HC judges necessitating reference to a larger bench?
6) Consideration of evidence in fixation of responsibility in gang murder case.
7) Delays in investigation and trial etc.
Hanging is, according to the Indian CrPC, the method of execution in the civilian court system.
Under the 1950 Army Act, hanging as well as shooting are both listed as official methods of execution in the military court martial system.
Law Commission Report Of 2015
According to the law commission 262nd report death penalty must be removed for all the crimes other than the crimes which harms the national integrity or terrorism.
The Law Commission in its previous year 1967, the commission concluded that India couldn’t risk the “experiment of abolition of capital punishment”. But in 2015 the commission stated that “the commission feels that the time has come for India to move towards abolition of death penalty”.
Despite the fact that death sentence is rarely executed in India, still the commission suggested that the penalty should be abolished. The commission gave following reasons;-
1) Time got changed
2) It’s not a deterrent
3) India’s justice system is flawed.
Capital Punishment- For
- As the intensity of the crime the offender must be punished.
- Sentencing the killer will create the terror in the mind of the people
- The very small chance of executing the wrong person is balanced by the benefits to society of putting off other murderers
- Capital punishment is an act of fairness rather than an act of injustice.
- As per Japanese , . The ideology of death penalty is that bad things will happen to those who take a charge of it whereas good things will happen to those who are good and did good deeds.
Capital Punishment- Against
- Life sentence violates Article 21 of the constitution.
- Sometimes loopholes in justice system might kill the innocent person.
- Emotional turmoil also sometimes forces the offender to commit such crimes for which the consequences cannot be foreseen.
- Life sentence cannot stop or control the crime
- International human rights law is violated because of life sentence
- Many executions are botched and thus produce excessive and unjustified pain and torture
As proclaimed by Emile Durkheim ‘’it is not crime because it hurts the public sentiment, but because it hurts the public sentiment it is crime’ ’this is true as an act which is an offence in India maybe is legal in other country. So it is the sentiment of that particular society which should be taken into consideration. Punishment is not only given just because to give justice to the aggrieved but also fulfill the sentiments of the society .As justice Radhakrishnan stated in Nirbhaya case that ;-‘’Rarest of Rare case does not depend upon discretion of judges but would depend upon society’s abhorrence for certain crimes’’. There are some crime incidents in which giving just life imprisonment is inadequate. It is the demand and faith of society on the Judiciary to give death penalty to those offenders. Also giving death penalty to those type of offenders will stop others from doing such serious crimes.
If we take another illustration; – If the culprit of Nirbhaya case were given only imprisonment term, then there was a chance that maybe his family could take revenge. So to overcome this idea of revenge and retaliation there is need of giving adequate punishment and the offender must be punished by due process of law.
So in country like India the capital punishment shouldn’t be banned. If we look in to the IPC no mandatory death punishment is given except in section 303.Every offence dealing with death penalty has an alternative of life imprisonment and also judiciary delivers death penalty in only rarest of rare case.
Thus, capital punishment must be retained in our country and should be awarded only in ‘’rarest of rare case’’.
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