Juris Centre

Capital Punishment – Is It Good in Today’s Time?

The term “punishment” is derived from the Latin word “punire”. The word punire meant to cause a person to suffer for an offense. The Punishment is the imposition of hardship or damage on a person for wrongdoing.[1]  Punishment intends to discourage crime, and every punishment aims to achieve two objectives at a time: to stop the offender from repeating what they did and to deter other members of society from committing similar acts. It is a basic function in all of the democratic states. The frequency of crime and its retaliation have long aroused the interest of the intellect of humans. However, due to swiftly shifting societal values and feelings of the people, the practice of punishment and public perception about it have been drastically affected throughout the previous centuries. The critical issue today is whether society should see a criminal as a nuisance to be removed, a threat to be eliminated, a sick to be treated, or a rebellious kid to be punished or it should be considered as none of these things and just as punishment to demonstrate to others that anti-social behaviour does pay. [2]  But in all the things one thing can never be neglected that to maintain the public peace and tranquillity, punishment is a necessary evil that should be there in the society. Therefore, punishment is frequently used to decrease the extent of criminal activity either by preventing potential criminals, imprisoning them and preventing them from repeating the offense, or by reforming then law-abiding humans. 

The word “Capital Punishment” signifies the most serious kind of punishment. It is the punishment to be given out for the most unacceptable, severe, and inhumane crimes against humanity. While the definition and scope of such offences varies by country, state, and age, the literal meaning of capital punishment has always been the death penalty.[3] The term “Death Sentence” refers to the death penalty imposed on a convicted criminal, whereas the term “Execution” refers to the actual execution of the death sentence. This is one of the most controversial and debatable topics around the world.

Here, the author shall be discussing about the capital punishment, its background, case laws and along with its relevancy in today’s time.

Background of Capital Punishment

Every country on the planet has used the death penalty as a form of punishment. The official historical basis of capital punishment as a codified law goes back to the 18th century, when Kind Hammurabi of Babylon established the death sentence for approximately 25 different types of crimes. It also served an integral part in the 14th century Hittite Code; the Draconian Laws of Athens, Greece which specified only death as a form of penalty for every criminal act. The approaches intended to carry out the death punishment were very violent, involving drowning, burning alive, and being tortured to death. The Hanging became a prevalent way of execution in the United Kingdom in the 10th century A.D. Except during battles, it wasn’t allowed to hang individuals in the subsequent century under the rule of William the Conqueror. With the passage of time, even the United Kingdom gradually started refrain from passing the death penalty.

In India, the ancient legal system allowed for the death penalty for a wide range of offences. The Indian epics, the Mahabharata and the Ramayana, also mention the wrongdoer being punished by “vadhadand” which translates as mutilation by parts. The renowned ancient law-giver Manu recognized the concept of fear as an important aspect of judicial proceedings.

Provisions Regarding the Death Penalty Under Various Laws

There are various provisions under the law where the death penalty can be given to the offender. The offences under Indian Penal Code, 1860 are as follows:

  1. Section 121 of the IPC[4] – It deals with the act of waging war against the Indian government, or attempting to do so, or aiding in its waging will be punished with death punishment.
  2. Section 132 of the IPC[5] – It deals with the Abetment of mutiny which states that Anyone who helps an officer, soldier, or member of the Army, Navy, or Air Force of the Government of India, commit mutiny can be punished with death penalty.
  3. Section 194 of the IPC[6] – It deals with Giving or creating false evidence with the goal to have someone convicted of a capital offence which states that Whoever provides or fabricates false evidence with the intent to convict anyone of a crime whose punishment is capital punishment and moreover, if an innocent person gets sentenced and hanged as a consequence of such false evidence, then the person who provides such false evidence will face either death penalty.
  4. Section 302 of the IPC[7] – It deals with the Punishment of the murder wherein the offender who commits the murder of any person will be liable for death punishment too.
  5. Section 305 of the IPC[8] – It deals with Aiding or Assistance a child or an insane person to commit suicide which states that the Anyone who aids in the suicide of a minor, an insane person, or an idiot, or someone who is intoxicated will suffers the death penalty.
  6. Section 364A of IPC[9] – It deals with Kidnapping for ransom wherein anyone who kidnaps or abducts anyone, or holds someone in detention and threatens to kill or injure them, or by his conduct creates a reasonable fear that they will be, or actually does, kill or injure them, in order to coerce the government, another state, an international organization, or another person to act or refrain from acting, or to make them pay a ransom, is guilty of committing a crime and shall be punished with death penalty too.
  7. Section 376D of IPC[10] – It deals with the Punishment for gang rape on a 12-year-old girl wherein it states that if a group of people acting together to further a common goal and rapes a child under the age of twelve, then each of those people is considered to have committed the crime of rape and is punishable by death.
  8. Section 396 of the IPC – It deals with the offence of dacoity with murder wherein it states that the if any one of five or more people who are concurrently committed dacoity also commits murder as part of that dacoity, they will all be given death penalty.

Position under various Special Laws –

  1. The Commission of Sati (Prevention) Act, 1987 – As per Section 4 of the Act, it states that those who aid in the act of sati, whether directly or indirectly, are subject to the death penalty. [11]
  2. The Narcotic Drugs and Psychotropic Substances Act, 1985[12] – For the first time in Indian history, the death sentence is granted via the NDPS (Amendment) Act, 1988. Under the stated section 31A, a person who has been convicted by a competent court of criminal jurisdiction outside India is treated as if he had been convicted by a court in India.[13]
  3. [14] – It is a special law dealing with the terrorist activities and the matters connected therewith. It also imposes death penalty for certain offences too.
  4. The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989[15] – It is a special law made for protecting the rights of SC and ST. As per Section 3 of the Act, the death punishment can be given to the person who commits any type of atrocities on the SC or ST person.

Constitutionality of Death Punishment

Since the time immemorial it has been argued that the Capital Punishment or the Death Penalty is violative of Fundamental Rights given under Chapter III of the Constitution of India. The very first case where it was been argued regarding the constitutionality of death penalty was Jagmohan Singh vs The State of U. P[16]. The constitutionality of the capital punishment in the SC had been a matter of discussion in this case. The right to life, guaranteed by Article 21 of the Indian Constitution, was said to have been infringed by the death sentence. The court discarded all the arguments in this case and ruled that Article 21 wasn’t violated by the death sentence. The SC in this case assured that the death penalty was legitimate and also declared that it would aid in minimizing an unprecedented eruption of wrongdoings. With this case, the situation was settled for some period of time.

Again a case came Infront of the honorable Supreme Court which was Deena @ Deena Dayal Etc. vs Union of India[17], themain question involves here in this case was that the technique of hanging is inhumane and barbaric thus violative of Article 21. The SC under the careful eye and the investigations surrounding the execution of capital punishment were set up, and it was proved that the technique of hanging is not a brutal manner of execution, and so Article 21 of the Indian constitution is not violated.

Thus, with these judgements now the position regarding the constitutionality of capital punishment is no w being settle and is conformed that it not violative of the fundamental rights in any manner.

Doctrine of Rarest of Rare Case

The rarest of rare doctrine was first propounded in the case of Bachchan Singh v State of Punjab[18] wherein the honorable SC determined that the death penalty as an alternative punishment for murder is not irrational and serves the public interest. Section 302 of the IPC does not contradict the language or spirit of Articles 19 or 21 of the Indian Constitution. The typical sentence for murder is life imprisonment, while the death penalty can be inflicted in extremely exceptional cases, i.e. the rarest of the rare.

In the case of Machhi Singh and Others vs State of Punjab[19], the Supreme Court also expanded the “rarest of rare” theory, ruling that it would only apply in situations when the collective conscience of the community would be sufficiently horrified to expect the people in charge of the judicial power centre to impose the death sentence.

Procedure needs to be complied while giving Death Sentence

When the offender is being convicted under the offence where the death penalty is there and the death verdict is delivered by a sessions (trial) court, then the ruling must be established by a High Court. Once affirmed by the High Court, the convicted criminal has the option of appealing to the Supreme Court. If this is not feasible, or if the Supreme Court declines the appeal or refuses to hear the plea, the convicted individual may file a ‘mercy petition’ with the President of India and the Governor of the State.

Landmark Cases of Capital Punishment

The few landmark cases regarding the death penalty are as follows –

  1. Vinay Sharma v. Union of India[20] – This incident, also infamously known as the Nirbhaya gang-rape case, outraged the nation’s conscience. The tragic and violent event took place on a bus in Delhi’s cold weather. Six suspects are accused of brutally raping the girl, which also caused the girl’s death. She was thrown on the road nude after having an iron rod pushed into her privates. She died as a result of all the physical and mental abuse she suffered. One of the accused committed suicide in jail at the time the matter was brought before the court, and another was a child, therefore he was spared the death penalty. However, the other four suspects were condemned to death and have been hanged in 2020. This decision was reached after determining that the aggravating elements went over any mitigating considerations. The death penalty was given because life imprisonment deemed insufficient in light of the relevant facts of the crime and the barbaric torture inflicted on the victim, which resulted in her death.
  2. Ediga Anamma v. the State of Andhra Pradesh[21] – The Supreme Court established in this case that the rule that life in prison without the possibility of parole is the norm for murder offences and the death penalty is the exception in some circumstances. The court further noted that if it chooses to sentence someone to death, a particular justification must be provided.
  3. Shabnam v. Union of India[22] – The lady was given a death sentence by the court, and she was hung for the first time in India’s criminal justice system. Shabnam murdered her family members in this instance along with her lover. The year 2008 was when this occurrence occurred. Because they wouldn’t let her marry her lover so Shabnam murdered her family members. She thus plotted a horrible murder for her family, which amounted to the aggravating element. She didn’t even leave her young nephew too; in addition, she asked the president for compassion, but it was denied too.
  4. Shatrughan Chauhan and Anr vs Union of India[23] – The Supreme Court in this case has recorded that the Home Ministry considers the following factors while deciding mercy petitions:
  5. Personality of the accused (such as age, sex or mental deficiency) or circumstances of the case (such as provocation or similar justification);
  6. Cases in which the appellate Court expressed doubt as to the reliability of evidence but has nevertheless decided on conviction;
  7. Cases where it is alleged that fresh evidence is obtainable mainly with a view to see whether fresh enquiry is justified;
  8. Where the High Court on appeal reversed acquittal or on an appeal enhanced the sentence;
  9. Is there any difference of opinion in the Bench of High Court Judges necessitating reference to a larger Bench;
  10. Consideration of evidence in fixation of responsibility in gang murder case;
  11. Long delays in investigation and trial etc.[24]

Conclusion

The death penalty, also referred to as the capital punishment, is still a subject of intense debate. Since it deters crime and has beneficial societal effects, it is a recognized kind of punishment; nonetheless, many human rights organizations and activists throughout the world disagree with it. They think it to be an incredibly cruel, barbaric, and inhumane practice that ought to be outlawed and that it has no effect on deterring crime or lowering crime rates. In the opinion of the opposite party, it is a suitable kind of punishment that fits in the legal system. It is a kind of punishment that is frequently criticized, but one cannot ignore its significance in the criminal justice system.

The capital punishment has been present in the legal system of India since the ages, and it was introduced solely to instill fear in the society in the hope that it would aid in the reduction and elimination of evils from society. However, in the current scenario, it has not helped as crime rates are increasing day by day, but this does not mean that the capital punishment should be removed from our legal system. However, there must be certain changes made to the legal system to make it less cumbersome and quicker. Only then will the execution rate of offenders rise and the victims will receive speedy justice. The death sentence is solely used to protect society’s interests; hence its legal rules should not be changed. Instead, they should be kept in place.

[1] Allott, A. N., Bernard, T. J., & Thomas, D. A., Punishment | Definition, Examples, Types, Effectiveness, & Facts. Encyclopedia Britannica. https://www.britannica.com/topic/punishment (Last Visited on June 25, 2023).

,[2] Deterrent effect of Punishment, Legal Service India, https://www.legalservicesindia.com/article/1744/Deterrent-effect-of-Punishment.html (Last Visited on June 25, 2023).

[3]Capital Punishment in India, https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/CAPITAL_PUNISHMENT_IN_INDIA.pdf (Last Visited on June 25, 2023).

[4] The Indian Penal Code, 1860, § 121, No. 45, Acts of Parliament, 1860 (India). 

[5] The Indian Penal Code, 1860, § 132, No. 45, Acts of Parliament, 1860 (India). 

[6] The Indian Penal Code, 1860, § 194, No. 45, Acts of Parliament, 1860 (India). 

[7] The Indian Penal Code, 1860, § 302, No. 45, Acts of Parliament, 1860 (India). 

[8] The Indian Penal Code, 1860, § 305, No. 45, Acts of Parliament, 1860 (India). 

[9] The Indian Penal Code, 1860, § 364A, No. 45, Acts of Parliament, 1860 (India). 

[10] The Indian Penal Code, 1860, § 376D, No. 45, Acts of Parliament, 1860 (India). 

[11] The Commission of Sati (Prevention) Act, 1987, §4, No. 3, Acts of Parliament, 1987 (India).

[12] The Narcotic Drugs and Psychotropic Substances Act, 1985, No. 61, Acts of Parliament, 1985 (India).

[13]The Punishments Provided for Offences Under NDPS Act, 1985, Law Commission of India Reports https://www.advocatekhoj.com/library/lawreports/narcoticdrugs/50.php?Title=Drugs%20and%20Psychotropic%20Substances%20Act,%201985&STitle=The%20Punishments%20Provided%20for%20Offences%20Under%20NDPS%20Act,%201985 (Last Visited on June 25th 2023).

[14] The Unlawful Activities (Prevention) Act, 1967, No. 37, Acts of Parliament, 1967 (India).

[15] The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, No. 33, Acts of Parliament, 1989 (India).

[16] 1973 SCR (2) 541.

[17] 1983 AIR 1155.

[18] (1982) 3 SCC 24.

[19] 1983 SCR (3) 413.

[20] AIR 2020 SC 1451.

[21] (1974) 4 SCC 443.

[22] Writ Petition (Criminal) No.88 Of 2015.

[23] Writ Petition (Criminal) no. 55 of 2013.

[24] Capital Punishment in India, https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/CAPITAL_PUNISHMENT_IN_INDIA.pdf (Last Visited on June 25, 2023).

Author: Rachana Singh

Leave a comment