CAPITAL PUNISHMENT IN INDIA – A Controversial Debate [2020]

AUTHOR : S.JEEVITHA | 
COLLEGE : SAVEETHA SCHOOL OF LAW , SAVEETHA UNIVERSITY

ABSTRACT:

All over the world we have a lot of criminal acts and followed up by different kinds of punishments. But every punishment is given only with the two main objectives. One is to make the person liable for the offense he has done and to create an example for others to not engage in such a criminal act. The Punishments Directly depend on the intensity of the crime for which the criminologist even later found various types of theories of punishment according to their own practice in the society.

In India, we follow the Reformative type of punishments which could make a reform in the minds of the criminals and in the minds of the other people in the society. In India, the judiciary is the sole body that decides on the intensity of the crime and provides equivalent Punishments read with the Sections of legislations, Constitution, and the criminal procedures.

The highest punishment provided all over the world is the death penalty but each County has its own forms of death punishment. In India, we have hangings for the death penalty and that was to be followed up by the proper procedures and laws. The authority to decide a case that is to be published with the death penalty is also decided by law. In India from the judicial precedents, it is made clear that only the “rarest of rare cases” can only have the Punishment of death penalty in the term of capital punishment.

Keywords: Capital Punishment, Capital Punishment in India, Death Penalty, Human rights, offenses, Capital Punishment essay.

CAPITAL PUNISHMENT MEANING:

Capital punishment also called the death penalty that is the execution of a person sentenced to death after conviction by a court of law for his/her criminal offenses. The term death penalty and capital punishment are sometimes used interchangeably. Capital punishment is the punishment that involves the death of the person who has committed a serious crime which is prohibited by the law. Capital punishment is also known as the ‘Death Penalty‘ which is approved and sanctioned by the government in which a person is put to death by the state as a punishment for the crime he committed.

The Death sentence is like the killing of a person in the name of justice. And India follows the same phenomenon but it follows as per the Indian constitution, it considers as violated the provisions of the right to life and dignity provided in Art. 21, still it is constitutionally valid.

HISTORY OF CAPITAL PUNISHMENTS :

Law at the time of the Primitive period was oral, there was not in written words. The punishment at that time was awarded arbitrarily by the king. The death penalty was usually for the murder, theft, trespass, and misuse of any of the valuable things. The death Penalty was also found in the 14th century B.C. they made that the crime can only be punished through the death penalty in the Draconian Code of Athens and the Same is followed in the 5th century B.C. Roman law of twelfth tablets.

The root of death penalty laws was taken from the Babylon law. Hammurabi, the king of Babylon issued a set of laws to his people called the Hammurabi Code. Babylon civilization started in the 19th Century B.C. till 6th Century B.C. Hammurabi was the first written code Hammurabi Code which provides the harsh standard by which Babylon could order for the establishment of the death penalty. In the code of Hammurabi, the crime against the people of high class with large amounts of money are considered to be more serious than the people with the poor.

In India, the death penalty was prescribed as to be one of the rarest punishments in the Indian Penal Code, 1860 (IPC) which is given to a number of capital crimes. It remained in effect after independence in 1947. The first hanging in our Independent India was made by two persons. They are Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case in November 1949. But throughout the world, two extremes approach regarding capital punishment.

One is the retaining of the death sentence for certain issues and the other one is the abolition of the death sentence. The first approach is based on the deterrent theory.

CAPITAL PUNISHMENT IN INDIA:

The death penalty has been a mode of punishment from time immemorial which is practiced to stop crimes and for the elimination of criminals and is used as the punishment for the heinous crimes. In India, punishment is based on a combination of deterrent and reformative theories of punishment. While the punishments are to be imposed in order to create deter amongst the offenders and also to give an opportunity for reformation.

Rather than abolishing the Death penalty, India has applied it in the ‘rarest of rare cases’. In Bachman Singh vs the State of Punjab, the Supreme Court in this case held that capital punishment can be awarded only for cases fall under the ambit of rarest of rare.

According to the court they gave the five categories of murders through which the doctrine of rarest of rare is given case shall be considered are: :

a) Motive

b) Manner of commission

c) The extent of crime

d) Anti social or repugnant nature of crime

e) Personality of victim

On the above provided guideline court will decide the Punishments[1](Macchi Singh and ors v. State of Punjab).

More number of offenses in Indian Penal Code 1860 prescribes the death penalty as punishment, namely:

  • Criminal Conspiracy (Section 120B)
  • Waging or attempting to wage war against the Government (Section 121)
  • Abetment of Mutiny (Section 132)
  • Giving or fabricating false evidence with intent to produce conviction of capital offense (Section 194)
  • Punishment for Murder (Section 302)
  • Murder by a life convict (Section 303)
  • Abetment of suicide of child or abetment of suicide of  insane person (Section 305)
  • Kidnapping for ransom (Section 364 A)
  • Dacoity with murder (Section 396)
  • Rape (Section 375)

Other legislations related to death penalty:

  • Air Force Act, 1950
  • Army Act, 1950
  • Navy Act, 1950
  • Indo Taliban Border Police Force Act, 1992
  • Prevention of Terrorism Act, 1987
  • Defence of India Act, 1971
  • Explosive Substance Act, 1908
  • Arms Act, 1959
  • Unlawful Activities Prevention Act, 1967 (amended 2004)
  • The Commission of Sati (Prevention) Act, 1987
  • POCSO Act, 2019

PERSON EXCLUDED FROM CAPITAL PUNISHMENT:

All persons cannot be awarded capital punishment, some persons are excluded from this punishment.

  • Minor

In India, if a person is a minor (I.e., below the age of 18 years as per the Definition of Juvenile under the Juvenile Justice (care and protection) Act 2000) at the time of committing a crime then the person will be excluded from capital punishment.

The recent amendments in the POSCO ACT 2019[2] adds two grounds to the definition of aggravated penetrative sexual assault and it includes (i) assault which results in the death of the child, and (ii) assault committed during a natural calamity, or in any similar situations. And now, the punishment for this aggravated penetrative sexual assault is imprisonment from 10 years to life, as well as fine. It increases the punishment from 10 years to 20 years and the maximum of the death penalty

  • Pregnant Women

When a pregnant woman is provided with the death penalty then any petition can be made to postpone or commute the sentence to life imprisonment. The High court shall order to postpone or commute the death penalty to life imprisonment if it thinks fit.

  • Mentally ill

If a person suffering from mental retardation or extremely limited mental competence can be excluded from execution.

REMEDIES AVAILABLE AGAINST CAPITAL PUNISHMENT:

  • Once the session court awarded capital punishment it has to be confirmed by the High Court.
  • Convicts can go for an appeal to the Supreme Court under Article 136 of the Indian Constitution and Section 379 of CrPC.

PARDONING POWER OF PRESIDENT

Article 72 of the Indian Constitution guarantees the pardoning power of the President. The convicts have the right to file the mercy petition to the President of India. The President shall have the power to grant pardons, reprieves, remit, or commute the sentences.

PARDONING POWER OF GOVERNOR

The Governor has a similar power as the President under Article 161 of the Indian Constitution.

CURATIVE PETITION:

The concept of Curative petition in the death penalty was established by the Supreme Court of India in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr.[3]  The question in this was whether an aggrieved person is entitled to any relief against the final order of the Supreme Court, after dismissing a review petition submitted. The Supreme Court in this case held that to cure miscarriage of justice and to prevent abuse of its process, it may reconsider its judgments in the exercise of its inherent powers.

In the case, V.Sriharan @ Murugan Vs Union of India[4], 2014 SCC 242, The Supreme Court held that the clemency procedure under Article 72/161, provides hope to the condemned prisoners. The constitutional clemency powers of the president and Governor originate from the government of the Indian Act 1935. They can even suspend capital punishment.

LANDMARK CASES:

In Jagmohan Singh v. State of U.P[5], the first case to deal with the question of the constitutional validity of capital punishment in India. In this case, the validity of the death penalty was challenged on the ground that it was violating Article 19 and 21, the five-judge bench held that capital punishment was not violating Articles 14, 19, and 21 of the Indian Constitution. Further, the court held that the choice of death sentence is done in accordance with the procedure established by law and the judge makes the choice between capital punishment or life imprisonment will be awarded on the basis of circumstances and facts, and the nature of the crime.

In Deena v. Union of India[6], in this case, the constitutional validity of Section 354(5) of the Indian Penal Code 1973 was challenged. It was challenged on the ground that the mode of execution by rope as prescribed by this section was inhuman and violative of Article 21 of the Indian Constitution. The Supreme Court held that the mode of execution prescribed under this is fair and reasonable within the meaning of Article 21 of the Indian Constitution.

In Bachman Singh vs State of Punjab[7], in this case, the five-judge bench of the Supreme Court held that capital punishment is not violating Article 14, 19, and 21 of the Indian Constitution and also enunciated that it can be awarded only for cases fall under the ambit of ‘rarest of rare cases’. The doctrine ‘rarest of rare cases’ was established in this case.

In Mithu vs. State of Punjab[8], the court struck down Section 303 of the Indian Penal Code because it is violative of Article 14 and 21 of the Indian Constitution since the offense under the Section 303 of IPC was punishable only with capital punishment.

CAPITAL PUNISHMENT AND HUMAN RIGHTS:

According to the worldwide Human rights, each country adopted a lot of conventions internationally to guarantee the humans of their citizens.

AMNESTY INTERNATIONAL

Amnesty international Believes that the practice of the death penalty breaches human rights, particularly the right to life and the right to live freely without any torture or cruel or inhuman or degrading treatment or punishment. Both rights are protected under the International Convention on Universal Declaration of Human Rights, adopted by the UN in 1948. The International community has adopted several conventions and that ban the use of the death penalty, including the following:

PROTOCOLS

• The Second Optional Protocol to the International Covenant on Civil and Political Rights, aims to the abolition of the death penalty.

• Protocol No. 6 to the European Convention on Human Rights deals with the abolition of the death penalty, and Protocol No. 13 to the European Convention on Human Rights, concerning the abolition of the death penalty in all circumstances.

• The Protocol to the American Convention on Human Rights concerned about the Abolish the Death Penalty.

All the international laws say that the use of the death penalty should be restricted to only serious crimes, as it is an intentional killing, but Amnesty believes that the death Punishments will not provide any kind of answer for their offense Committed.

CONVENTIONS

The International Covenant on Civil and Political Rights (‘ICCPR’) is one of the main Conventions with relates to the death penalty with the international human rights law. The ICCPR does not abolish the direct use of the death penalty, but Article 6  guarantees  the right to life and provides the  important safeguards to be followed by the signatory countries who retain the death penalty

The Second Optional Protocol to the ICCPR aims for the abolition of the death penalty,  which is open to signatures from all countries worldwide.

Similar to the ICCPR there is also Article 37(a) of the Convention on the Rights of the Child

(‘CRC’) which explicitly prohibits the death penalty against the person below the age of 18.

The Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (‘The Torture Convention’), and the UN Committee against Torture are the sources that are against the death penalty as well as provides necessary safeguards for human rights.

The Torture Convention does not regard the imposition of the death penalty per se as a form of torture or cruel, inhuman, or degrading punishments. But, some methods of execution of death are in the forms of CIDT by UN bodies.

CONCLUSION:

Capital punishment is needed for the practices of very inhuman crime and in the more crimes as it was given only to the rarest of rare cases. Capital punishment is seen as degrading the humanity of the person and a very cruel, inhuman in some jurisdictions is constitutional in India. We can have a note on the rights provided for each citizen in the Indian constitution which guarantees the basic human rights and right to life and also criminalizes certain offenses with very rigorous punishments such as the death penalty.

In India, the issue of the death penalty is hotly debated and attracted the attention of the general public as well as government, students, and non-governmental organizations. Though our India is in a state of activeness in the United Nations and has signed and ratified most of the International Instruments on human rights, relating to capital punishment. According to our Indian judiciary the death penalty is provided in the exceptional cases only i.e. in rarest of rare cases with special reasons that fulfill certain guidelines that require the death penalty.

India is a nation of a different culture, religion, and different types of people having their different way of thinking and living along with different methods of Punishments for the offenses. Though in the ancient period the death punishment is provided for the small offenses also But nowadays the death penalty is provided with the cases which fulfilled the guidelines for providing the death penalty. As time changes And years moving, many countries of the world under the United Nations abolishes the death penalty.

In India, we restrict the death penalty for common offenses and provide only the rarest of rare cases as per the judicial precedents provided. So the question remains capital punishment should be abolished or not! It is still a spicy debate in the country regarding the imposition of capital Punishments.


REFERENCES:

[1]Macchi Singh and ors v. State of Punjab AIR 1983 SC 957. Retrieved December 31, 2013

[2]https://www.scconline.com/blog/post/tag/pocso-amendment-act-2019/

[3]Writ Petition (civil) 509 of 1997

Writ Petition (civil)108 of 1999

[4]WRIT PETITION (CRL.) NO. 48 OF 2014

[5]1973 AIR 947, 1973 SCR (2) 541

[6]1983 AIR 1155, 1984 SCR (1) 1

[7]AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

https://indiankanoon.org/doc/307021/

[8]1983 AIR 473, 1983 SCR (2) 690

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