DEATH PENALTY IN INDIA

Author – RAHUL J.P, Student at KLE SOCIETY’S LAW COLLEGE BANGLORE

1 .ABSTRACT

This article talks about validity of death penalty in 20th century , it can be traced back to time of rule of empires to rule of crown this article tries to elucidated the history and arguments in favor and against the death penalty and establish a balanced view regarding capital punishment.

2. INTRODUCTION

Death penalty or Capita punishment it’s a penalty awarded for most heinous of the crimes committed against humanity the punishment is most harsh form of punishment wherein the person convicted shall be put to death by the proper authority The killing of a person as a form of punishment for a crime is known as capital punishment, which is popularly referred to as the death penalty & the act of carrying out the punishment is called execution. The word capital is derived from the word Capitalis from a latin word which means to head thus ot refers to execution by beheading also there are various ways by which execution takes place which depends upon the place of execution it can be done through hanging, shooting, injections etc.

India is a country that believes in the reformative theory of law, where the principle ‘innocent until proven guilty is followed. The death penalty is the highest degree of punishment awarded to any convicted person. Thus, awarding the death sentence is not a common phenomenon in India. In India, there were 144 total death sentences awarded in 2021.[1]

The death sentence, commonly referred to as the capital punishment, is imposed only in extremely exceptional circumstances. A technique for carrying out the death sentence is described in Section 354(3) of the Code of Criminal Procedure, which is “Hanging by the neck until dead.” The Nirbhaya case defendants were recently executed by hanging in Tihar Prison. Let’s learn more about the death penalty or the death penalty.[2]

Since a decade ago, fewer countries have carried out executions, although countries including India, the Gambia, Pakistan, and Japan defied the trend and started enforcing the capital penalty again. According to a research by Amnesty International, 21 countries executed prisoners last year, compared to 28 in 2003.[3]

3. PROVISIONS FOR DEATH PENALTY

Warfare against India or the attempt to wage it is one of the crimes that have been linked to the death sentence. A crime that is clearly described in Section 121 of the IPC is declaring war against a nation.The death penalty may be applied to anyone who seeks to wage war against India or is successful in doing so.

The reduction of mutiny has also been linked to the death penalty. A mutiny by an officer, soldier, sailor, or pilot in the army, navy, or air force of the Government of India is prohibited by Section 132 of the Indian Penal Code, and anyone who aids in the commission of a mutiny by one of these individuals so that mutiny will be committed as a result of their aid and assistance can be put to death.

Section 194 of the IPC has been added to the list of crimes punishable by death. According to Section 194, fabricating evidence is punishable by the death penalty if it is done to obtain a capital conviction for a crime. A person who commits such a crime can face the death penalty.

Section 302 of the IPC imposes the death penalty for a person who commits murder.

The death penalty has been connected to encouraging or helping a minor commit suicide. The IPC’s Section 305 addresses the penalties for helping or encouraging a minor or a person with intellectual disabilities to commit suicide. Anyone who commits this act will therefore be subject to the death penalty.

Kidnapping is a serious offence that can result in death if done for ransom or other reasons. The crime of kidnapping someone with the intent to hurt or kill them is defined by Section 364A of the IPC. Any person who commits this crime can face the death penalty.

Section 396 also provides for the death penalty in cases of dacoity with murder.[4][5]

Any person involved in the commission of Sati directly or indirectly is subject to the death penalty under The Commission of Sati (Prevention) Act, 1987. [6]

For those who participate in the manufacturing or distribution of narcotics or psychoactive drugs in a preset amount or who provide financial support based on prior convictions, Section 31A of the NDPS Act instituted the death sentence (e.g., opium 10 kg, cocaine 500 grammes).[7]

Forging evidence that leads to the conviction and execution of an innocent member of a scheduled caste or tribe is punishable by death under the Act. [8]

4. CONSTITUTIONAL VALIDITY OF DEATH PENALTY

There has been a diverse opinion regarding the death penalty in India as some are in the favour of the retention of the punishment while others are in the favour of its abolishment. India is one of the 78 retentionist countries which have retained death penalty on the ground that it will be awarded only in the ‘rarest of rare cases’ and for ‘special reasons’. Though what constitutes a ‘rarest of rare case’ or ‘special reasons’ has not been answered either by the legislature or by the Supreme Court.[9]

The right to life is guaranteed by the Indian constitution to every person, subject to its deprivation by the legal process. Abolitionists have contended that the death penalty in its current form violates the citizen’s right to life. Many eminent lawyers have argued that it is against everyone’s right to life for the death sentence to remain in Indian criminal statutes. It is asserted that these esteemed jurists are likely unaware of the fact that even the right to life is not a given.[10]

The constitutional validity of the death penalty was challenged from time to time in numerous cases

The Supreme Court’s five-judge panel unanimously maintained the constitutionality of the death penalty in Jagmohan Singh v. State of Uttar Pradesh, concluding that it did not violate Articles 14, 19, or 21. The legitimacy of the death sentence in this instance was contested on the grounds that it contravened Articles 19 and 21 because no procedure was provided. It was argued that the process outlined by Cr. P.C. was limited to finding guilt alone and did not include the imposition of a death sentence. The Supreme Court ruled that the legal process is followed while deciding whether to execute someone. It was noted that the judge chooses between capital punishment and imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during trial.[11]

Judge Krishna Iyer empathically emphasised in another case, Rajendra Prasad v. State of UP5, that the death sentence is against articles 14, 19, and 21. He said that in order to apply the death punishment, the following two conditions must be met:

The unique justification for applying the death penalty in a case needs to be noted.Only extreme conditions warrant applying the death penalty.[12]

In Bachan Singh v. State of Punjab, the issue was revisited, and the five-judge bench of the Supreme Court reversed its earlier ruling in Rajendra Prasad by a vote of 4 to 1 (Bhagwati J. dissenting). It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases’. In his opposing opinion, Bhagwati J. stated that “the death penalty is not only unconstitutional because it violates Articles 14 and 21.[13]

5. ARGUMENTS IN FAVOUR OF DEATH PENALTY

RETRIBUTION

Retribution Theory’s three main ideas are as follows:

I) Everyone who has committed a wrong deserves to be punished.

ii) Only those who are accountable should receive punishment.

iii) Penalties for criminal behaviour should be proportionate to the seriousness of the offence.

According to this argument, perfect justice requires that those who commit wrongdoing endure punishment that is proportionate to their crime. Every offender should be sentenced to the death penalty, which is the appropriate punishment for murder.

DETERANCE

The justification for the death penalty is sometimes based on the idea that by putting convicted murderers to death, we will stop future murderers from killing people. Thomas Aquinas observed that by consenting to death as a penalty, the criminal was able to atone for his sinful actions and therefore avoid punishment in the afterlife. It shows how the death sentence can result in some types of rehabilitation.

PRACTICAL

Advocates of the death penalty think that rules and processes may be set up to ensure that only those who are actually deserving of death be put to death. Some who are against the death penalty want the sentence to be changed to life in prison. Nonetheless, it should be mentioned that these prisoners have a very low likelihood of changing their ways and feeling regret for their crimes. So, life in jail would not accomplish the goal; rather, it would raise the financial burden on the State.

MAINTAINANCE OF LAW AND ORDER

6. ARGUMENTS AGAINST DEATH PENALTY

STATICAL WORKS DO NOT CONFIRM DETERANCE WORKS

The statistical data does not support the effectiveness of deterrence. Due to a mental disorder or physical disability, some of the people who were executed would not have been able to be discouraged.In some cases, those who commit capital crimes are so distraught that they fail to consider the potential repercussions.

Since 2013 (Section 376A of the IPC), the death penalty has been authorised in rape cases. Despite this, rapes continue to occur, and in fact, their brutality has multiplied. This makes it necessary to consider whether the death sentence is a powerful deterrence to crime.[15]

EXECUTION OF INNOCENTS

The most common argument against capital punishment is that sooner or later, innocent people may get killed, because of mistakes or flaws in the justice system[16] Those who reject the death penalty believe that punishment is evil and is simply a refined form of vengeance.

In the majority of developed nations, capital punishment has been rendered obsolete.

RISE OF REFORMATIVE THEORIES

The execution of a person in the name of justice occurs when the accused is handed the death penalty; it is more than just a punishment. Killing someone is unethical and demonstrates a disregard for human life. Furthermore, opposing the death sentence does not entail that the opponent is supporting the criminal. As the death penalty abolishes the chance for improvement that would have improved a person’s life, democracies around the world support reformative theories of punishment and reject deterrent theories of punishment.

7. CONCLUSION

Because India is one of the largest nations in the globe, there are many crimes and criminals there. India has some very tough laws to address these problems. Every crime carries a penalty for the offender. One of the modifications is the death sentence, which is rarely enacted in India. While researching death penalty sentences and capital punishment, one of the rarest of rare situations came into play. In exchange for performing horrible and grievous crimes, the convict receives it. The indigenous legitimacy of the capital discipline has been the subject of numerous discussions, and many people from varied backgrounds have shared their opinions. But, no final choice has yet been made.

8. REFERENCES

1.BOOKS

THE DEATH PENALTY IN INDIA ; A STUDY OF SUPREME COURT JUDGMENTS BY BIKRAM JEET BATRA
DEATH PENALTY IN INDIA BY NISHANTH GOKHLE

2.CASES

Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947.

Rajendra Prasad vs. State of Punjab, A.I.R. 1979, S.C.p.916.

Bachan Singh v. State of Punjab

3.STATUTES

The Indian Penal Code, 1860

The Commission of Sati (Prevention) Act, 1987

, the Narcotic Drugs and Psychotropic Substances, Act, 1985

‘The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities)’ Act, 1989

4.CONSTITUTION

THE CONSTITUTION OF INDIA ARTICLES 14,19 AND 21

5.ARTICLES AND ONLINE SOURCES

[1] https://blog.finology.in/Legal-news/capital-punishment-in-india#:~:text=Capital%20punishment%2C%20also%20known%20as,until%20death%20in%20Tihar%20Jail.

[2] https://en.wikipedia.org/wiki/Capital_punishment

[3] https://economictimes.indiatimes.com/news/politics-and-nation/world-abolishing-death-penalty-but-executions-on-rise-in-india/articleshow/19486122.cms

[4] https://blog.ipleaders.in/capital-punishment-in-india-2/#:~:text=According%20to%20Section%20194%2C%20fabricating,a%20person%20who%20commits%20murder.

[5] INDIAN PENAL CODE S.(121),S(132),S(194),S(302),S(305),S(302),S(364A),S(396)

[6] https://wcd.nic.in/commission-sati-prevention-act-1987-3-1988-excluding-administration-criminal-justice-regard-offences SECTION 4

[7] Article 31A, the Narcotic Drugs and Psychotropic Substances, Act, 1985

[8] 3(2)(i) of the ‘The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities)’ Act, 1989

[9] http://lawlex.org/lex-bulletin/constitutional-validity-of-death-penalty-in-india/1458

[10] ARTICLE 14,19 AND 21 OF INDIAN CONSTITUTION

[11] 4) Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947.

[12] Rajendra Prasad vs. State of Punjab, A.I.R. 1979, S.C.p.916.

[13] https://www.indianbarassociation.org/constitutionality-of-death-penalty/

[14] https://www.thehindu.com/opinion/op-ed/is-it-time-to-abolish-the-death-penalty/article25735508.ece

[15] https://www.drishtiias.com/daily-updates/daily-news-editorials/death-penalty-2#:~:text=Arguments%3A%20In%20Favour%20of%20the%20Death%20Penalty&text=Deterrence%3A%20Capital%20punishment%20is%20often,provides%20closure%20for%20victims’%20families.

[16] ://www.drishtiias.com/daily-updates/daily-news-editorials/death-penalty-2#:~:text=Arguments%3A%20In%20Favour%20of%20the%20Death%20Penalty&text=Deterrence%3A%20Capital%20punishment%20is%20often,provides%20closure%20for%20victims’%20families.