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CAPITAL PUNISHMENT: THE CONSTITUTIONAL VALIDITY AND ITS NECESSITY IN CONTEMPORARY INDIA

Harshvardhan*


Capital Punishment is the highest legal penalty in India. Hanging and shooting are the two methods in India. According to Section 354(5) of Criminal Procedure Code(hereinafter “CrPC”), hanging is the method of execution in the civilian court system. Section 34 of The Army Act,1950, however, lists both hanging and shooting as official methods of execution in the military court-martial system. While the number of Capital punishments in the form of hanging till death has been uncertain until now and is a matter of dispute but various research studies along with government data claim different numbers; official government statistics state that fifty-two people have been executed since independence. However, research published by the National Law University, Delhi on death row convicts since 2000 had found that of the 1,1617 prisoners sentenced to death by trial courts in India, capital punishment was confirmed in only seventy one cases. NLU Delhi confirmed 755 executions in India since 1947. The first hanging in in Independent India was that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on 15 November, 1949. The recent hanging of the four convicts in the 2012 Delhi gang rape and murder Case was famously known as the “Nirbhaya case” was marked as a significant event in the legal history of India because this was the first time that four convicts were hanged together on the same platform. The last death sentence executed by the justice system in India was the hanging of terrorist Yakub Menon on 30 July, 2015 who was convicted in the 1993 Mumbai blasts. Prior to the hanging of Memon in 2015, Muhammad Afzal in 2013 and Mohammad Ajmal Amir Qasab was hanged in 2012 who were convicted for Parliament attacks in 2001 and Mumbai terror attack in 2008 respectively.


The Judgement in the case of Bachan Singh v. State of Punjab held that Capital punishment can only be given in the rarest of rare cases. While stating that honour killings fall within the “rarest of rare” category, Court has recommended the death penalty be extended to those found guilty of committing “honour killings”, which deserves to be a capital crime. Though, there is no statutory definition of rarest of rare. In a criminal trial, the nature and gravity of the crime are taken into consideration for determining a suitable punishment. The Court considers those crimes as ‘more serious’ which are committed against the society at large. Therefore, weightage is given to the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal” That is to say, the existence of such extraordinary grounds under which the court has no other resort than to effect a capital punishment for the survival of the state as well as society


The constitutionality of death sentence was challenged for the first time in the apex court in the case of Jagmohan Singh v. State of Uttar Pradesh Section 302 of IPC was challenged as violative of Article 14, 19 and 21 of the constitution but the court held capital punishment as constitutional even after agreeing that right to life is the foundation stone of the freedom enumerated under Article 19 and that no law can be enacted which takes away the life of a person unless it is reasonable and in public interest. It was also held that if the entire procedure for a criminal trial under the CrPC for arriving at a sentence of death is valid then the imposition of death penalty could not be called unconstitutional. In the Bachan Singh case it was argued that the Supreme court in Maneka Gandhi v. Union of India has given a new interpretative dimension to articles 14,19 and 21, and their interrelationship in every law of punitive detention both must pass the test of all three articles. However, the court rejected this argument. The court held that article 19 unlike article 21 does not deal with the right to life and liberty of a person and is not applicable for judging the constitutionality of the provisions of Section 302 of IPC. As regards article 21, it was recognized that in the said article, the founding fathers recognized the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by law, and there are several indications in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty, such as, Entries 1 and 2 in List II, article 72(1)(c), article 161 and article 34.


Capital Punishment in the United Kingdom has been abolished by the Murder (Abolition of Death Penalty) Act, 1965 in general offences other than four types , namely Treason, Capital and repeated murder, Piracy with violence, and setting fire to Her Majesty’s ships. For the offences of first two types, the judge has no other choice than to award death penalty. The last two offences have been left upon the discretion of the judge. It has been made sure that neither a minor nor a pregnant woman can be hanged to death. Death sentence in the United States and its predecessor colonies between 1608 and 1991 was quite high. About 15,269 people executed in the United States within this period. There was no execution between 1967 and 1977. In 1972, the U.S. Supreme court struck down capital punishment statutes in Furman v. Georgia, reducing all death sentences pending at the time of life imprisonment. However, later all of them were executed. The International conventions have tried to limit capital punishment to the most severe cases such as the Article 3 of the Universal Declaration of Human Rights, States should progressively restrict “the number of offences for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries.” .


The UN Economic and Social Council reiterated that the death penalty should be imposed only for the most serious crimes and stated that the scope of these crimes “should not go beyond international crimes with lethal or other extremely grave consequences”. Article 4(4) of the American Convention on Human Rights states that the death penalty should not be inflicted for “political offences or related common crimes”.In addition to Indian Penal code which offers death penalty in cases of Murder (302,303 of IPC), waging war against India(121 of IPC), abetting the suicide of a minor(305 of IPC), Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny(132 of IPC), Giving or fabricating false evidence with intent to procure a conviction of a capital offence (194 of IPC), a series of legislations enacted by Parliament of India have provisions for the death penalty such as The Commission of Sati (Prevention) Act, 1987 clearly states that if any person commits sati, whoever abets the commission of it, either directly or indirectly, shall be punishable with death. In 1989, the Narcotic Drugs and Psychotropic Substances Act, 1985 was passed which applied a mandatory death penalty for a second offense of “large scale narcotics trafficking”.


In recent years, the death penalty has been criticized and has had calls for its abolition. The reasoning is based on the fundamental notion that the State should not have the supreme authority to decide when a person is to die and more importantly how the person is supposed to die. The Supreme Court has given many a judgement on the matter of suicide as well as euthanasia that the life of an individual is God given and therefore no one is permitted to take one’s own life or even decide when the life of another person is to be taken. This also happens to be the jurisprudence behind section 302 of the IPC. Therefore the question has begged answering since time immemorial, whether the state has the authority to take another individual's life or not? A survey was conducted in the article, “Overall critical analysis of the death penalty” in 1990 and 82% of the people were in favour of the death penalty. However, when given the option between the death penalty, life imprisonment and restitution, only a meagre 26% chose the death penalty. India has its position very clear on the death penalty and it should stay that way. The death penalty can be given in the following cases-


1. Section 396 IPC- to a group even if only one commit a murder during a robbery,


2. Section 364A IPC- when a victim is kidnapped and the victim is killed,


3. Article 6 of the Unlawful Activities (Prevention) Amendment Ordinance, 2004- membership of an association and the use of guns that leads to the death of a person,


4. State Laws- Being engaged in any kind of organised crime.


5. Article 4(1) of The Commission of Sati (Prevention) Act- the act of committing or assisting someone to commit.


6. Section 3 (b) of the Explosives Substances (Amendment) Act, 2001- the use of explosives that are likely to endanger the lives or cause serious damage to property.


7. Criminal Law (Amendment) Act, 2013- a rapist that causes the death of the victim or if the victim is in a permanent vegetative state after the crime.


8. Section 9 Criminal Law (Amendment) Act, 2013- repeated gang rapes could also be given the death penalty after the Nirbhaya Case.


9. Criminal Law (Amendment) Act, 2013- after the rape of a 8 year old girl Asifa Bano, the death penalty could be given for the rape of girls below the age of 12 years.


10. Section 121 and 136 of the Indian Penal Code, 1860- the act of waging war or the attempt to wage war against the Government of India or the assisting officers, soldiers or members of the Navy or the Air Forces in committing mutiny are punishable with the death penalty.


With the Indian position of the death penalty being structured out in this way and the fact that the Indian Supreme Court has already stated that the death penalty were to only be given in the rarest of the rare cases, having the death penalty in place is correct. The death penalty has a very narrow scope to be misused if it were followed in the very context that it has been structured out. In our opinion, the death penalty should remain in India in order to deal with heinous crimes.


*Harvardhan is a student at Christ (Deemed to be University).

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