All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that it is right and just that a person who has done wrong should suffer for it; the other is that inflicting punishment on wrongdoers discourages others from doing wrong. Capital punishment also rests on the same proposition as other punishments.[1] The death Penalty is the extreme punishment that is awarded to any person for some gruesome offense that has been committed. Everyone needs to get punishment for the crime or offense committed because society would be like a jungle without adequate punishment.
Meaning of Capital Punishment
“Capital Punishment” refers to the most severe kind of punishment. The punishment is for the most severe crimes against humanity. While the scope and extent of such offenses differ from country to country, state to state, and age to age, the connotation of capital punishment has always remained the death penalty. Capital sentence is commonly used in jurisprudence, criminology, and penology to refer to a death sentence. Death Sentence is a kind of punishment that is defined under Section 4 of BNS, 2023.
Historical Background
Capital punishment is an old sanction. Almost no country in the world has ever had the death penalty. Throughout human history, capital punishment has never been abandoned as a form of punishment. Capital punishment for murder, treason, arson, and rape was commonly utilized in ancient Greece under Draco’s rules (fl. 7th century BCE), but Plato claimed that it should only be used for the incorrigible. The Romans also utilized it for a variety of offences, with citizens exempted for a brief period during the republic.
King Ashoka did not disallow capital punishment for the offences. Kalidasa has narrated the need for punishment of those who deserve it as necessary for preservation.[2] The very idea of capital punishment was expressly depicted in the Mahabharata which mentioned that “if by destroying an individual or a whole family, the kingdom becomes safe and danger-proof it ought to be done in the interest of Society”.
The Indian Constitution and Death Sentence: A Fundamental Challenge
The Constitution of India is also known as the “Bag of Borrowings”. We have adopted various features from various country’s constitutions and a large part of our constitution is based on the Government of India Act of 1935. Articles 14, 19, and 21 of the Indian Constitution are known as the Golden Triangle of the Constitution. The Constitution of India acknowledges the right to life as an inalienable and indispensable right and provides that they have a certain crucial amount of evidentiary value thereby right to life and liberty has been protected by the innumerable conventions of the Constitution as well.[3]
The death penalty violates Articles 21, 14, 15, 16, and 19 of the Indian Constitution. There have been two prevalent questions about the death sentence with regards to the death constitutionality of capital punishment in India; firstly, whether the death sentence as a provision is entirely unconstitutional and whether it should not be provided as a punishment under any circumstances, no matter what; and the second question arises that the provisions of capital punishment provided under the Indian Penal Code are unconstitutional.
Provision Related to Death Sentence in India
- Section 302 of the Indian Penal Code (IPC) states that a person who commits murder can be punished with the death penalty or life imprisonment. Murder is defined as the intentional killing of another person without justification or excuse.
- As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.
- The Indian Penal Code prescribes ‘death’ for offences such as:
- Waging war against the Government of India. (Sec. 121);
- Abetting mutiny committed (Sec. 132);
- Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194);
- Murder (Sec. 302);
- Abetment of suicide: Section 305 of the IPC states that abetting the suicide of a minor, insane person, or intoxicated person is punishable by death.
- Attempted murder: Section 307(2) of the IPC states that attempted murder by a serving life convict is punishable by death
Landmark Cases Involving Death Sentences in India
Jagmohan Vs State of UP [4]
The Supreme Court’s five-judge bench unanimously maintained the death penalty’s constitutionality in this case concluding that it did not violate Articles 14, 19, or 21. In this case, the validity of the death sentence was contested because it contravened Articles 19 and 21. After all, no procedure was provided. It was argued that the process outlined by CrPC was limited to finding guilt alone and did not include the imposition of a death sentence. The Supreme Court held that “the choice of death sentence is done by the procedure established by law”. It was noted that the judge decides between a death sentence and a life sentence based on the circumstances, facts, and type of crime presented during the trial.[5]
Bachchan Singh Vs State of Punja[6]
In this case, SC held that the death penalty should be awarded in the ‘rarest of the rare cases’ and it should be awarded only when there is no alternative form of punishment available. The Doctrine of Rarest of the Rare is propounded in this case only. Also, the court observed that while awarding a death sentence, it should keep in mind aggravating factors.
Machhi Singh Vs State of Punjab [7]
The guidelines for the application of the principle of ‘rarest of rare cases’ were being laid down i.e. while awarding the death sentence, the court should take into consideration both aggravating factors as well as mitigating factors.
Mithu Vs State of Punjab [8]
Section 303 of the Indian Penal Code was held unconstitutional and hence was repealed as it talked about the mandatory death sentencing of life convicts after the commission of murder. It was observed by the court that since the offender is under the life conviction, hence, he is more susceptible to certain conditions, unlike an individual who is not under any sort of punishment and there come some particular facts and circumstances which the court fails to consider. Therefore, the sheer deprivation of the rights and safeguards guaranteed under the Constitution and the Criminal Procedure Code as well, which is bound to result in injustice is harsh, arbitrary, and unjust.[9]
Rajendra Prasad vs. State of UP [10]
Justice Krishna Iyer empathetically stressed that the death penalty is violative of articles 14, 19 and 21. He further said that to impose the death penalty two things must be required: The special reason should be recorded for imposing the death penalty in a case. The death penalty must be imposed only in extraordinary circumstances.[11]
Deena v U.O.I [12]
It was held that execution of the death sentence by hanging by the neck as provided in clause (5) of section 354 was not violative of Article 21 of the Constitution.
The most recent one is –
The Nirbhaya Judgment
In the very recent case of Mukesh & Anr vs State NCT of Delhi & Ors (Nirbhaya Case)[13], the convicts have been executed in Tihar Jail and were hanged till death on 20 March 2020 which has been attributed to the prevalence of justice by the Hon’ble Prime Minister of the country and proved be the utmost satisfaction for the parents of the victim as well as a sigh of relief for the entire justice system, however, the Amnesty International India condemned the action by stating that death penalty is never the solution and hanging of Nirbhaya convicts is a ‘dark stain’ on India’s human rights record.[14]
Process Of Death Penalty
- Trial Court
• The judge issues the verdict following the procedures outlined in the Code of Criminal Procedure.
- High Court
• Following the Session Court’s ruling, a high court must confirm the death sentence.
• The high court may uphold the death penalty, impose a different sentence, or overturn the verdict.
• The High Court also has the authority to withdraw a case from a subordinate court, perform the trial, and impose the execution penalty.
- Special leave petition
• After the High Court confirms the death sentence, a Special Leave Petition under Article 136 of the Constitution may be submitted with the Supreme Court.
• Pursuant to Article 136, the Supreme Court determines whether the special leave petition merits hearing as an appeal.
- Curative petition
• If it is proven that there was a violation of natural justice principles or suspicion of bias in the position of a judge, the Supreme Court may grant a curative petition to reconsider its judgement or order.
• The curative appeal would be heard by the same bench that heard the review petition.
- Mercy Petition
• Articles 72 and 161 of the Constitution grant the President of India and the Governor the authority to grant pardons and postpone, remit, or commute sentences in certain circumstances.
• The president or governor may review the convict’s case and commute the execution sentence.
- Death warrant
• In instances where the death penalty is imposed, the convict should be permitted to exercise all available legal remedies, including appeal, review, and mercy petitions.
• Before issuing the death warrant, the Supreme Court rules must be observed.
- Execution
• A death sentence or death penalty is a sanctioned punishment for perpetrating an offence. • An execution is the process of carrying out a death sentence.[15]
Data, facts, and figures on the Death Penalty
- This is the eighth edition of the Death Penalty in India: Annual Statistics Report. This annual publication presents changes in the death row population as well as political and legal developments in the administration of the death penalty in India each year. The statistics are compiled through a combination of data mining of court websites, media monitoring, and Right to Information applications.
- At the end of 2023, 561 prisoners were living under a sentence of death, which is the highest population on death row in a single calendar year in nearly two decades as per the records published by the National Crime Records Bureau. As of 31st December 2023, 120 death sentences were imposed by trial courts across the country.[16]
- UP records the highest no. of death row i.e. 119 people according to this report.
- The Prison Statistics maintained by the National Crime Records Bureau since 1995 reveal that 15 individuals were executed between 1995 and 2000, and one individual (Dhananjoy Chatterjee) was executed between 2000 and 2010 (National Crimes Records Bureau 1995–2010). By and large, executions have been steadily declining, with just one execution in the first decade of this century.
- However, this trajectory has not continued since 2010. Rather, the decade between 2010 and 2020 saw seven executions across four cases and a legislative expansion of the death penalty at both central and state levels. This expansion occurred despite the express recommendation of the Law Commission of India to the contrary (2015: 217) that the death penalty must be abolished for all offenses except those relating to terror.[17]
Concerns with Death Penalty Sentencing
Following are some of the problems with the criminal law proceedings in India particularly when it comes to following proper procedures, rules, and laws:
1. Same Day Sentencing
One of the most important requirements is that the trial and the awarding of the death sentence must not be on the same day. Section 235 (2) of the Code of Criminal Procedure provides separate days for both the conviction and the sentencing. Allauddin Mian and Ors. v. State of Bihar [18] Explained the reasoning behind such a conscious decision of the court and stated that this was done so that the accused must be allowed to absorb and overcome the shock of conviction before being heard on sentence.
Since this was not done in that case, the Supreme Court went on to convert the death sentence into life imprisonment, finding insufficient material on sentencing to warrant awarding the death penalty. However, Project 39 A, an initiative by the National Law University of Delhi found that in many cases, this was not followed and what happened was that same-day sentencing was the norm in most session courts in the country. In around 44 percent of the cases across the nation, the idea of same-day sentencing was fast becoming the norm.52 Madhya Pradesh recorded the highest with nearly 77 percent of its cases being those of same-day sentencing.[19]
2. Lack of consideration of procedural requirements
As in the Bacchan Singh case, the court must take into consideration both aggravating and mitigating factors while deciding the capital punishment. However, in the reports from Project 39 A it was found that across the trial courts in India, the approach used was a crime-centric approach to impose the death penalty.
The entire concept of mitigating circumstances was not even considered by the courts and was dismissed without any meaningful consideration. As a result, the trial courts in the nation only looked into the aggravating factors of the case which were based on imposing the death penalty, most of which centered around the brutality of the crime.[20]
3. Public Opinion and the Collective Conscience
Courts increasingly rely on public opinion to determine death penalty sentences. The courts agree that the death sentence may be appropriate in circumstances where society’s conscience is sufficiently aroused to justify it. The Supreme Court routinely imposes the death penalty based on the public’s collective conscience and the desire for justice. Although the court stated in the case of Santosh Bariyar v. State of Maharashtra[21]that public opinion was indeed incompatible with the institution of Criminal Proceedings under the Code of Criminal Procedure and in the final sentencing of the death penalty.
4. Delayed Pardoning power under Article 72
There used to be a time when this power was used within two weeks of happening of case related to capital punishment but nowadays, it generally takes around 10 to 12 years to decide. Though the President is conferred with such power he cannot exercise this power arbitrarily and according to Article 74, he has to use this power with the aid and advice of the council of ministers headed by the Prime Minister of India. Following the verdicts in the cases of Maru Ram v. Union of India [22] and Dhananjoy Chatterjee v. State of West Bengal [23], it is generally understood that the president can only use this power to act upon the advice given to him by the Council of Ministers while deciding mercy pleas.
5. Delayed Execution
India’s legal system is facing a significant crisis, in addition to concerns about the use of death punishments. This is regarding the execution of convicted death penalty criminals. One could focus their attention on terrorist groups as well as anti-national elements. Many individuals sentenced to death for valid offenses do not receive the appropriate punishment due to delays in the procedure. Afzal Guru’s case exemplifies how a guy who should have been executed was granted additional time to live, postponing justice for the victims of his terrorist operations.
Solutions
- There is a great deal of unaddressed mental health concerns for these individuals. In many ways, that is something that can be expected since they are on death row. Regardless of whether they have any mental health issues or not, they are to be provided with the necessary mental health facilities in the last remaining time they have left.
- we could set up diagnostic clinics, which would be staffed by a group of persons skilled in human behaviour like psychiatrists, social workers, and psychologists. These clinics, through tests and investigations, would distinguish those who suffer from emotional disorders from those who are facing issues and could provide adequate mental health facilities.
There can be numerous other solutions that can be seen and taken into consideration, and individual solutions can also be taken into consideration.
Clemency Power
The Indian President and the Governor of the State are known as the “court of last resort” because they have the authority to grant special clemency powers under Article 72 and Article 161 of the Constitution of India. These powers include remission (reducing the term of sentence), commutation (a punishment less severe than the previous Complete Pardon), reprieve (temporary stay of sentence), and respite. If all legal remedies have been exhausted, the accused may present a mercy petition to the President of India and the Governor of the State.[24]
Sentencing in Indian Penal System: Aggravating and Mitigating Factors
Aggravating factors
A heavier sentence would be imposed during the sentencing hearing if the prosecutor presented proof of aggravating circumstances. Various criminal statutes outline the circumstances that lead to more severe penalties. The facts of the case, including the severity of the damage, the use of weapons, etc., are used to determine how serious the offence is. When determining the duration of the sentence, the seriousness of the offence is the first consideration. The following are a few of the factors:
- Brutality of the Crime
- Manner of Execution
- Impact on Society
- Motive for the Crime
- Victim Characteristics
Mitigating Factors
Mitigating factors are those that reduce the culpability of the accused and support the imposition of a lighter sentence, such as life imprisonment instead of the death penalty. These factors are crucial in determining whether a convict has the potential for reform and if life imprisonment would suffice. The cases discuss the following mitigating factors:
1. Age and Health of the Accused
2. Possibility of Reformation
3. Good Conduct in Prison: conduct
4. Mental and Psychological Condition
5. Prolonged Trial or Delayed Justice
6. Background and Circumstances of the Accused
Conclusion and Recommendations
India is one of the retentionist nations that still use the death penalty for specific offenses. Culture, gender, and even cognitive prejudice result from the lack of a clear legal distinction about what qualifies as the “rarest of the rare,” leaving it up to the judges hearing the case. The death penalty must be commensurate with the seriousness of the offence and the perceived violation. Following its pronouncement, the death penalty will not be postponed. It is unacceptable to make fun of terrorists for their transgressions. Therefore, instead of completely abolishing the death penalty, we will preserve it in the IPC for a strict
obstruction impact on the offenders and to maintain the public’s trust in equity by
Ensuring that the criminal won’t be skewered in the unlikely event that he commits a horrible
Misconduct.
We should not overlook Bentham’s theory of pleasure and pain, it tends to be said capital punishment will be executed in the ‘rarest of the rare cases’ for the well-being of the residents of the society.
Author: Arman Sheikh is a 2nd (III Semester) student at Faculty of Law, Jamia Millia Islamia.
Bibliography
1. PSA Pillai, Criminal Law 103-105 (Lexis Nexis, India, 12th edition., 2014).
2. KD GAUR, The Textbook on The Indian Penal code,180 -182 (Lexis Nexis, 8th Edition, 2023)
References
- CAPITAL PUNISHMENT IN INDIA: AN ETHICAL ANALYSIS https://www.slsnagpur.edu.in/assetsnew/pdf/newreviewpdfs/reema.pdf
- A Study on Execution of Death Penalty https://ijariie.com/AdminUploadPdf/A_Study_on_Execution_of_Death_Penalty_ijariie14218.pdf?srsltid=AfmBOoqcwTDISzeTnhCLp-i0JsebkXGFVtO6XX9DCzYKwCLhKbQTYrku
- A COMPREHENSIVE STUDY ON THE CONSTITUTIONAL VALIDITY OF THE DEATH PENALTY IN INDIA- IS THERE A NEED FOR ABOLISHMENT? https://law.dypvp.edu.in/plr/Publication/Research-Papers/Ritika-Sharma/A-Comprehensive-Study-on-Constitutional-Validity-of-Death-Penalty-in-India-is-there-a-Need-of-Abolishment.pdf
- ANNUAL STATISTICS REPORT 2023 https://www.project39a.com/annual-statistics-report-2023
- CAPITAL PUNISHMENT IN RAREST OF RARE CASES: IS IT JUST AND FAIR? https://docs.manupatra.in/newsline/articles/upload/dfa397d3-b539-419d-a79b-28d367cfee09.pdf
[1] LOK SABHA SECRETARIAT, “PARLIAMENT LIBRARY AND REFERENCE, RESEARCH, DOCUMENTATION AND INFORMATION SERVICE (LARRDIS)” 2 (2015)
[2] Das Shukla, Crime and Punishment in Ancient India, (Abhinav Publications, New Delhi, 1977).
[3] Allan Gledhill, “The Life and Liberty in First Ten Years of Republican India”, 2 J.I.L.I. 241(1959-60).
[4]Jagmohan Vs State of UP 1973 1 SCC 20
[5] Capital Punishment in India: Laws and Cases available at https://blog.finology.in/Legal-news/capital-punishment-in-india (last visited on 16th September 2024)
[6] Bachchan Singh Vs State of PunjabAIR 1980 SC 898
[7] Machhi Singh Vs State of Punjab1983 AIR 957
[8] Mithu Vs State of Punjab1983 AIR 473
[9] Section 303 Of IPC: Judgement In Mithu V. State Of Punjab And The Newly Added S. 104 Of BNS available at https://www.livelaw.in/articles/section-104-bharatiya-nyaya-sanhita-and-supreme-court-judgment-mithu-vs-state-of-punjab-mandatory-death-sentence-252494 (last visited on 17th September 2024)
[10] Rajendra Prasad vs. State of UP1979 AIR 916
[11] CONSTITUTIONALITY OF DEATH PENALTY available at https://www.indianbarassociation.org/constitutionality-of-death-penalty/ (last visited on 18th September 2024)
[12] Deena v U.O.I 1(1983) 4 SCC 645,
[13]Mukesh & Anr vs State NCT of Delhi & Ors (Nirbhaya Case)AIR 2017 SUPREME COURT 2161
[14] Ritika Sharma, A COMPREHENSIVE STUDY ON THE CONSTITUTIONAL VALIDITY OF THE DEATH PENALTY IN INDIA- IS THERE A NEED FOR ABOLISHMENT? 1 Pimpri Law Review 8 (2022)
[15] Ngamjai Wangsacha & Bellen Camdir, AN OVERVIEW OF CAPITAL PUNISHMENT IN INDIA,3 Indian Journal of Integrated Research in Law 8(2023)
[16] ANNUAL STATISTICS REPORT 2023 available at https://www.project39a.com/annual-statistics-report-2023 (last visited on 10th September 2024)
[17] Anup Surendranath and Maulshree Pathak, “Legislative Expansion and Judicial Confusion: Uncertain Trajectories of the Death Penalty in India” 11 International Journal for Crime, Justice and Social Democracy 4 (2022)
[18] Allauddin Mian and Ors. v. State of Bihar 1989 AIR 1456
[19] Nived KM, “DEATH PENALTY SENTENCING IN INDIA – CONCERNS AND SOLUTIONS”, 11 IJFANS INTERNATIONAL JOURNAL OF FOOD AND NUTRITIONAL SCIENCES 16 (2022)
[20] Project 39A, “Death Penalty Sentencing in Trial Courts” (May, 2020)
[21] Santosh Bariyar v. State of Maharashtra (2009) 6 S.C.C. 498
[22] Maru Ram v. Union of India1980 AIR 2147
[23] Dhananjoy Chatterjee v. State of West Bengal 1994 SCC (2) 220
[24] Sahiba Meher Rajpal,” A Study on Execution of Death Penalty.” International Journal of Advance Research and Innovative Ideas in Education (IJARIIE) 4 (2021)
