Juris Centre

Is Capital Punishment Constitutionally Valid?

Capital punishment refers to a type of punishment wherein a person is executed and deprived of his/her life by law for a certain crime. Capital punishment is considered as the harshest punishment of all time. In colonial India, death was given as a punishment in the Indian penal code, of 1860. In 1937 the father of our nation told that “I do regard the death sentence as contrary to ahimsa. All crime is a kind of disease and should be treated as such”[1]. Capital punishment has been always a contrary idea to India and all the developed countries around the world. “India is a signatory to the international covenant of Civil and political rights (1966), which was committed to phase out the application of the death penalty”. [2]“According to amnesty international published the facts and figures of the death penalty in 2021. According to this report, 108 countries had completely abolished the death penalty by the end of 2021. Most known executions took place in China, Iran, Egypt, Saudi Arabia, and Syria – in that order.”[3]

HISTORY

“The very first mention of the death penalty was given in The Code of Hammurabi, a Babylonian legal text composed during 1755-1750 BC”. It was mentioned, that “If a man stole the property of a god or the palace, that man will be executed; moreover, whoever received stolen property from him will be executed.[4]” Around twenty-five crimes were punishable by death punishment. Capital punishment was prevalent in ancient Egypt, where various methods such as beheading, drowning, and burning at the stake were employed. Punishment, known as ‘Gunga Rao’, was mostly utilized in Asia and more particularly in India, while there is some evidence that it was occasionally used in the West. In India, the death penalty has included the use of an elephant since the Middle Ages. There were many other techniques of capital punishment used in ancient times for example lingchi, sawing, gibbeting, and many more

PROCEDURE AND CRIME PUNISHABLE BY CAPITAL PUNISHMENT AND WHO ARE EXCLUDED FROM CAPITAL PUNISHMENT.

Types of punishment are mentioned in “The Indian penal code,1860” in Chapter III Sections 53 to 75. Section 53 has mentioned six kinds of punishments that can be given to each convict death, imprisonment for life, and imprisonment are of two kinds one is simple and the other is rigorous, forfeiture of the property and fine.

Nowadays, the death penalty is given to those people who have committed capital crimes such as murder, drug trafficking, terrorism, aircraft hijacking, rape, and mass murder. As mentioned in Section 302 of the Indian penal code, 1860, a person who commits murder shall be given the death penalty. The Unlawful Activities (Prevention) Act, of 1967 allows for the death penalty in cases involving acts of terrorism that result in death. This includes activities related to terrorist organizations and unlawful associations. Under the Official Secrets Act, of 1923, a person found guilty of espionage, which involves spying or unauthorized communication of classified information to foreign nations, may be sentenced to death. Section 396 of the IPC involves the death penalty when there is dacoity with murder.

In addition to the Indian penal code, of 1860 there are other legislation enacted by the parliament of India that have provisions for the death penalty which are

  1. Narcotic Drugs and Psychotropic substances act, 1985

In section 31A of the NDPS Act death penalty is mentioned

  1. The Commission of Sati (Prevention) Act, 1987

The death penalty is mentioned in Part II, Section 4(1).

  1. Scheduled Tribes (Prevention of Atrocities) Act, 1989
  2. The Army Act, 1950
  3. The explosive substances, 1908.

THE PROCEDURE OF CAPITAL PUNISHMENT

It involves several stages. The first and foremost stage is the trial and conviction in this the accused is charged and tried for a crime punishable by death. The trial is according to the criminal procedure code and the Indian evidence act. Then if proven guilty the accused can be given the death penalty which is later reviewed by the high court and if the high court confirms the death penalty, the accused can make an appeal to the supreme court of India where they would review all the facts, principles, and other legal aspects. “After exhausting all the judicial appeals, the convict can submit a mercy petition to the president” [5]of India or to the governor of the respective state[6]. Then when the president or governor, advised by the Ministry of home affairs, reviews the mercy petition. If the mercy petition is rejected they may issue a warrant for execution. It’s mentioned in section 354(5) of the Code of criminal procedure, 1973.

In India the two most popular methods of providing capital punishment are

  1. Hanging: in 1949 the assassin of Gandhi ji (Nathuram Godse) was the first person to be hanged till death in independent India. It involves suspending the condemned person by the neck until they die.
  2. Shooting: in some cases, shooting has been an option it involves firing a group of bullets into the body of the person. The intent is to cause instantaneous death. It is less common in India compared to hanging.

   “A bench comprising chief justice DY Chandrachud and Justice JB Pardiwala was hearing a   PIL which was seeking to abolish the present practice of execution by hanging to replace it with lethal injections, gas chambers, or electrocution.”[7]

Category of offenders who are excluded from capital punishment. It is mentioned in section 34 of the Indian penal code, 1860 who are excluded from capital punishment they are

  1. Minor: a person below 18 years at the commitment of a crime can’t be given capital punishment. This is in line with international standards and the juvenile justice (care and Protection of Children) Act which provides for a separate juvenile justice system.
  2. Pregnant women: as an alteration made in the year 2009 pregnant ladies will not be condemned to the death penalty
  3. Disabled: a person who committed the crime was not in the state to understand the crime and it is proven that they are disabled then they are not given the death penalty.

THE CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT

In Arab countries, one quote prevails a lot that is an eye for an eye but Mahatma Gandhi Ji told us that an eye for an eye will make the whole world blind.

Sanction is an essential ingredient of law. The death penalty in India is not abolished completely but is given in rarest of the rare cases.

Art 21 of the Indian constitution which provides protection of life and personal liberty cannot even get suspended during an emergency. “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. Though Art 21 gave power to the state to take someone’s life the question which arises is whether they really have the power to take someone’s life because if they don’t have the power to give birth to that person so they don’t have the power to take someone’s life.

The question of the constitutional validity of the death penalty has been raised in supreme court.

“THE PRINCIPLE OF THE RAREST OF RARE CASES”

In “Bacchan v. State of Punjab”[8], the doctrine of rarest of rare was established. Then from this case, the supreme court endeavored to cut out doctrine particularly for culpable offenses with death to decrease the ambiguity for courts regarding when is the time to go to higher punishments.

In “Prajeet Kumar Singh v. State of Bihar[9]”, the court held that the death penalty would only be awarded when the murder was committed in an extremely brutal, dastardly manner

In “Macchi Singh and others v. State of Punjab[10]” the court held guidelines and the criteria are analyzed by the manner of commission of murder, the motive for the commission of murder, the socially abhorrent nature of the crime, the magnitude of the crime, and finally the personality of a victim of murder.

Since there is no mention of the rarest of rare cases in any statute so is it legal or illegal?

The Criminal Law offers several protections. The Court must provide specific justifications under section 354(3) of the Code of Criminal Procedure before imposing the death penalty. After conviction, a hearing on the issue of punishment is provided under Section 235(2). Hanging a killer does not make a judge happy. In imposing the death penalty, he is only carrying out a difficult responsibility for the good of society. We can therefore put our faith in the judges to carry out this difficult task with meticulous care and human concern, keeping in mind that life in prison is the standard sentence for murder and that the death penalty should only be applied when the offender appears to be extremely depraved and a danger to society.

ARGUMENTS FOR THE ABOLITION:

  1. Barbaric and immoral: the state has no right to take a person’s life. It is morally wrong. It is cruel and harshest punishment.
  2. Non-violence: in India, we follow the doctrine of nonviolence so only God has the right to take someone’s life.
  3. Irrevocable: once given it given can’t make a dead person alive.
  4. It’s evil and imposes suffering on people who should not be suffering.

ARGUMENTS FOR THE RETENTION:

  1. Proportionate to crime: so capital punishment is the only fit punishment for those who have deliberately violated the sanctity of human life.
  2. The death penalty serves as a deterrence. The act that motivates individuals to commit murder will no longer exist if the death penalty is abolished. “Do we want more murders or fewer murders in our nation?”  All punishments are imposed to safeguard society and ensure that everyone can live in peace. To guarantee this security, the death penalty is necessary.
  3. A chance of recurrent homicides: when a criminal is let free he may do the crime again, and society must be safeguarded against the chance of this happening in the state of India.

DEATH PENALTY GIVEN TO TERRORISTS IN INDIA

  1. 2001 Indian Parliament Attack: Following the attack on the Indian Parliament in December 2001, five terrorists were convicted and sentenced to death.
  2.  2008 Mumbai Attacks: In November 2008, a series of coordinated terrorist attacks occurred in Mumbai, leading to widespread destruction and loss of lives. Ajmal Kasab, the lone surviving attacker, was captured and later sentenced to death. His execution took place in November 2012.
  3. 2013 Hyderabad Twin Bombings: Two bombs exploded in Hyderabad in February 2013, causing significant loss of life and injuries. Indian Mujahideen operatives, including Yasin Bhatkal, were held responsible for the attacks. Bhatkal was subsequently convicted and sentenced to death.

“Keeping terrorists alive is not an act of humanity, but an invitation to further acts of inhumanity by their friends and partners. There is thus a strong case for ensuring quick convictions and awarding them the death penalty.”[11]

India’s public opinion on capital punishment

Pew Research Centre poll (2014): A Pew Research Centre poll from 2014 found that support for the death penalty in India was fairly strong, with 53% of respondents in favor of the death sentence for murderers.

National Crime Records Bureau (NCRB) poll (2016): In a 2016 poll, the NCRB found that about 69% of respondents supported keeping the death sentence in place.

Karvy Insights – Today in India 2018’s Mood of the Nation Survey 77% of respondents in a 2018 study by India Today and Karvy Insights supported the death sentence for rape convictions.

Public opinion on capital punishment in India can vary depending on the specific context and survey methodology. Overall, there is support for the death penalty in India, but it’s crucial to note that public opinion may be diverse and that there are sizable segments of the community that are opposed to it. The Public thinks capital punishment is an insensitive thing to do but the victims of heinous crimes and their families don’t think capital punishment is an insensitive thing to do.

INTERNATIONAL COUNTRIES TAKE ON CAPITAL PUNISHMENT

“After World War II there was a declaration made by the universal declaration of human rights, which the United Nations general assembly adopted in 1948 where the abolition of the death penalty was brought”. [12]But still, many countries have and many countries don’t follow them. Let’s take a look at which country has abolished the death penalty and what is the crime rate of that countries.

Key:

  1. Legal: where the death penalty is in use and legal.
  2. Abolished: where it is prohibited in all cases.
COUNTRYTYPECOUNTRYTYPE
IranlegalCandaabolished
IndialegalFranceabolished
ChinalegalGermanyabolished
North KorealegalSwedenabolished
United StateslegalNorwayabolished

Many people have argued that abolishing the death penalty will lead to higher crime rates because people will commit less crime when they have the fear of the death penalty may impose on them. The answer to this may be yes and maybe no because in some states the death penalty has deterred crime and in some states, the death penalty has no effect on the crime.

The countries in which the death penalty is abolished:

  1. “Canada, 27 years after the country abolished the death penalty the murder rate had fallen by 44 percent since 1975, when capital punishment was still enforced.”[13]
  • Spain: “Spain abolished the death penalty in 1995, 1990-1995 there was a decrease in the crime rate in 1995 there was decrease but from 1996 to 1997 it was an increase and in some years it increases and decreases.”[14]
  • Bhutan: “Bhutan abolished the death penalty in 2004. The last person executed was in 1964. In 1990-2000 there was a decrease in crime rates. But there was a rapid increase in 2004 the year when the death penalty was abolished. Then after years, there was fluctuation.”[15]
  • Switzerland abolished the death penalty in 1992 where from 1990-1992 there was a decrease in crime rates, but there was a rapid increase in 1993 then after the years decrease and increase.

The countries in which the death penalty is legal

  1. India: “India’s crime rates between 1992 and 2021 were dropping”.[16]
  2. China: “From 1990 to 2022, crime rates in China, the largest executor in the world, decreased in that order”.[17]
  3.  USA: “Crime rates in the United States dropped from 2017 to 2018, but they increased from 2019 to 2020. There are highs and lows.”[18]

FINDINGS

Where the death penalty has been abolished, there has been an increase and a decline every year. However, the crime rate is falling every year in places where the death penalty is permitted.

CONCLUSION

India is one of the largest countries in the world, hence crime and criminals are quite common 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 seldom 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 criminal receives it. The indigenous validity of the capital discipline has been the subject of several arguments, and many people from varied backgrounds have shared their opinions. However, nothing definite has been decided as of yet.

[1] Harijan, 27.4.1970, vol. 72, p. 14

[2] Apala Vatsa, Proceedings of the Indian history congress, December 2019, vol.80, DEATH PENALTY IN INDIA AN EXAMINATION OF THE HISTORICAL DISCOURSE on JSTOR

[3]  AMNESTY INTERNATIONAL, Death Penalty 2021: Facts and Figures – Amnesty International.

[4] Huehnergard, John. Key to a Grammar of Akkadian (Third Edition). Winona Lake, IN: Eisenbrauns, 2013.

[5]India Const. ART. 72

[6] India Const. ART. 161

[7] Rishi Malhotra vs Union of India W.P.(Crl.) No. 145/2017

[8] Bacchan v. state of Punjab, AIR 1980 SC 898, 1980

[9] Prajeet kumar Singh v. State of Bihar, [2008] INSC 563 (2 April 2008)

[10] Macchi Singh and others v. state of Punjab, 1983 AIR 957

[11] Firtspost, For terrorists like Kasab is the death penalty justified? – Breaking-views News , Firstpost

[12] Carsten Anckar, why countries choose the death penalty, vol. 21 no..1 pp. 7-25, Why Countries Choose the Death Penalty on JSTOR.

[13] Marcus A. Kavanagh and Lewis A. Lawes, current history(1916-1940), Vol. 33 No.3 (December 1930), pp. 356-366, Does the Death Penalty Curb Crime? on JSTOR

[14] Macrotrends, Spain Crime Rate & Statistics 1990-2023 | MacroTrends

[15] Macrotrends, Bhutan Crime Rate & Statistics 1990-2023 | MacroTrends

[16] Macrotrends, India Crime Rate & Statistics 1990-2023 | MacroTrends

[17] Macrotrends, China Crime Rate & Statistics 1995-2023 | MacroTrends

[18] Macrotrends, U.S. Crime Rate & Statistics 1990-2023 | MacroTrends

Author: Shubhika Jain

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