Introduction
India is a developing country at the same time the rate of crime in India is increasing as well. There are lots of legislation in India to stop and control crimes, having said that there is a substantial increase in crime rate in India. All punishments are based on the same motive to give penalty for the wrongdoer. There are different types of punishment in India such as capital punishment, life imprisonment, imprisonment etc. Capital punishment is known as the most severe form of punishment.
What is Capital Punishment?
The term ‘Capital’ is borrowed from Latin capitalis, Crimes that are punishable by death are known as capital crimes, and vary depending on the jurisdiction, but commonly include serious crimes against the person, such as murder, mass murder, aggravated cases of rape (often including child sexual abuse), terrorism, aircraft hijacking, war crimes, crimes against humanity, and genocide, along with crimes against the state.
Capital punishment, also known as the death penalty and formerly called judicial homicide is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that the person is responsible for violating norms that warrant said punishment. The sentence ordering that an offender be punished in such a manner is known as a death sentence, and the act of carrying out the sentence is known as an execution. Executions are carried out by hanging as the primary method of execution as given under Section 354(5) of the Criminal Code of Procedure, 1973 is “Hanged by the neck until dead”.
History
The death penalty is an ancient authorization. There is essentially no nation in the world where capital punishment has never existed. In the Code of Criminal Procedure (CrPC), 1898 death was the default punishment for murder and required the concerned judges to give reasons in their judgment if they wanted to give life imprisonment instead.
The demand for abolishing death penalty was first made in 1931 by Gaya Prasad Singh, member of Central Legislative Assembly; he sought to do this by introducing a Bill in the legislature; the Bill, however, was not taken up. Interestingly, in the same year, Bhagat Singh, Sukhdev and Rajguru were hanged in the Lahore Conspiracy case. A week after the revolutionaries were hanged, at its Karachi Session, the Indian National Congress passed the Karachi Resolution which abolished capital punishment.
The Constitution of India, 1950 as passed and adopted by Constituent Assembly does not take a stance on death penalty; its neither supports or abolishes it. It, however, does make the implicit assumption of the existence of death penalty: Article 134 provides individuals punished by death a right to appeal to the Supreme Court.
By an amendment to the CrPC in 1955, the requirement of written reasons for not imposing the death penalty was removed. Further In 1973, when the CrPC was amended, life imprisonment became the norm and the death penalty was to be imposed only in exceptional cases, particularly if a heinous crime committed deems the perpetrator too dangerous to even be ‘considered’ for paroled release into society after 20 years. All criminals sentenced to life imprisonment in India are automatically eligible for parole after serving 20 years, as per IPC 57), and required ‘special reasons’. This significant change indicated a desire to limit the imposition of the death penalty in India.
Capital punishment in the Indian Penal Code (IPC)
Capital offences
- Section 121 is defined in IPC as, whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine.
- Section 132 is also included in the list of Capital punishment sections of IPC, which is related to abetment of mutiny by an officer, soldier in the Army Navy or Air Force of the Government of India, shall be punished with death penalty.
- Section 194 of IPC is also concerned with death Penalty in India, according to this section whoever gives or fabricates false evidence with intend to cause any person to be convicted of a capital offence shall be punished with death penalty or with life imprisonment.
- According to section 302 of IPC whoever commits murder shall be punished with death penalty.
- Section 305 of IPC talks about Abetment of suicide of child or insane person, Anyone who aids minor, insane or a person who is intellectually disable in committing suicide will be punished with death penalty.
- Section 307(2) of IPC talks about murder Attempt by a serving life convict, when any person offending under this section is under sentence of imprisonment for life, if hurt is caused, be punished with death sentence.
- Section 364A of IPC is associated with death sentence related to Kidnapping for ransom, whoever kidnaps or abducts any person or keeps a person in detention after kidnapping with the intent to cause hurt or threatens to cause death is liable for death sentence as per this section of IPC.
- Section 376A of IPC is associated with Capital Punishment for rape causing death or resulting in persistent vegetative state of victim.
- Section 376AB of IPC is associated with Capital punishment for rape on woman under Twelve years of age.
- Section 376DB of IPC deals with Capital Punishment for gang rape on woman under twelve years of age.
- Section 376E of IPC deals with capital punishment for repeat rape offenders.
- Section 396 of IPC deals Dacoity with murder , in cases where a group of five or more individuals commit dacoity and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.
Capital Punishment in non -IPC offences
There’s an exhaustive list of Capital punishment for Offences not mentioned in IPC, Given below are the few crucial ones to be considered.
The Commission of Sati (Prevention) Act, 1987
Section 4 of Sati Prevention Act is associated with Abetment of sati if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death or imprisonment for life.
The Narcotic Drugs and Psychotropic Substances Act, 1985
As per Section 31A of NDPS Act Death penalty for certain offences after previous conviction has been defined for providing financial support or taking part in the production or sale of narcotics or psychoactive substances in a predetermined amount (E.g., Opium 10 kgs, Morphine 1 kg, Heroin 1 kg).
Offenders who have been exempted from capital punishment based on their medical condition or age criteria
In India, Juveniles (Section 21, Juvenile Justice Act says that no child under 16 years of age in conflict with law shall be sentenced to death) and people suffering mental illness or insanity (Shatrughan Chauhan v. Union of India (2014)) are exempted from capital Punishment.
Minors: – According to Our law, a person who committed a crime while being a minor that is less then 18 years in age is considered as minor and exempted from Capital Punishment, giving them a chance to improve and restart their life, Further We also have a Juvenile Justice Act (2015) that is implemented where an accused is minor.
Cognitive disability or Insanity: – According to Indian Law, a person with cognitive disability is also covered in the category of exemption from Capital Punishment. It is considered as person with cognitive disability is unable to understand the nature or consequences of their and so they are being exempted from death penalty.
Process of Capital Punishment
Trial Court
After the completion of proceedings as prescribed by the Code of Criminal Procedure, the judge pronounces the judgment of a case. As per the provision of Section 354(3) of CrPc 1973 “Special reasons” justifying the sentence is required to be recorded by court and state as to why an alternative sentence would not meet the ends of justice in the case, according to the principle ‘Life imprisonment’ is the rule and death sentence is the exception.
Confirmation of High Court
After the decision and sentencing by the Court of Sessions, a high court needs to confirm it for the death sentence to be valid. The high court may confirm the death sentence awarded by the Court of Sessions, pass any other sentence warranted by law, annul the conviction, convict the person of any offence for which the Court of Sessions might have convicted them, order a new trial on the same or amended charge or acquit the accused person under Section 368. The High Court may also in accordance with Section 367 of the Code conduct or direct further inquiry into or additional evidence to be taken on any point bearing upon the guilt or innocence of the convicted person.
Special leave petition under Article 136
After the death sentence is confirmed by the high court. Convict can file an appeal under special leave petition as per article 136 of the constitution of India. The Supreme Court may in its discretion after considering the issues grant special leave to appeal under Article 136 of the Constitution. Exercising its power under Article 136, the Supreme Court decides whether the special leave petition deserve to be heard as appeals.
Review petition Under Article 137
A petition seeking review of a judgment or order passed by the Supreme Court may be filed under Article 137 of the Constitution before the Supreme Court within thirty days from the date of such judgment or order. review petitions for death sentence cases should be heard in open court, but there would be a time limit of 30 minutes for oral hearing. Such a procedure would be just and fair. One such case of Ambadas Laxman Shinde and Ors Vs. The State of Maharashtra, October 2018 was reopened after being dismissed earlier to be heard in the open court after the above judgement, which resulted in commutations and an acquittal of the convict.
Curative Petition
As per the supreme court judgement in Rupa Ashok Hurrah Vs. Ors, April 2002 after the dismissal of the review petition, the Supreme court may allow curative petition to reconsider its judgement or order if it is established that there was a violation of principles of natural justice. it may reconsider its judgements in exercise of its inherent powers. The curative petition would be circulated before three senior-most judges of the Supreme Court. The curative petition would be disposed of without oral arguments, unless ordered otherwise by the Supreme Court.
Mercy Petition
Articles 72 and 161 of the Constitution give power to the President of India and the Governor to grant pardons and to suspend, remit or commute sentences in certain cases. The president or the governor may consider the case of the convict and may pardon the death sentence.
Landmark Cases on constitutionality of the death penalty
Rajendra Prasad v. State of Uttar Pradesh, February 1979
Post the re-enactment of CrPc 1973, there was ambiguity in the understanding of ‘special reasons’ for imposing death sentence. The supreme court in Rajendra Prasad v. State of Uttar Pradesh dealt with the meaning of ‘special reasons’ for inflicting death sentence on exceptional grounds. The court emphasised on reformative theory as social goals. Furthermore, the Court held that the ‘special reasons’ required to impose capital punishment must not relate to crime, but focus must be on the criminal.
Bachan Singh v. State of Punjab, May 1980
The rarest of rare doctrine was established in this case by Apex court of India. By a majority of 4:1, the supreme court upheld the constitutionality of the death penalty in this particular case, but it also established a rule requiring that it only be applied in the most extreme instances. Even though it was determined that the death penalty is an exception and life imprisonment is the rule, the Supreme Court’s decision did not define or restrict the use of the phrase ‘rarest of rare.’
In the dissenting opinion written by Justice P. N. Bhagawati in August 1982, two years after the majority’s decision, he held the death penalty to be unconstitutional. He opined that the capital sentencing system, which required ‘special reasons’ without any guidance on its meaning, essentially left decision-making to the subjective assessment of individual judges, making it arbitrary.
Mithu v. State of Punjab, April 1983
In this case, the court discussed Section 303 of the IPC which provided for a mandatory death sentence for offenders serving a life sentence. This section was based on the logic that any criminal who has been convicted for life and still can kill someone is beyond reformation and so, the only suitable punishment left would be death. It was discussed that the original idea behind drafting of this section was to discourage assaults by life convicts on the prison staff, but the language chosen by the legislature had widely exceeded its intention. It was held that Section 303 violated right to equality and right to life and personal liberty as conferred under Articles 14 and 21 of the Constitution.
Executions since Independence
Prisoners or the Government itself does not have the exact count of the person being executed post-independence. Due to a lack of coordination among different Government official, the collection of an accurate number of executions has not been possible. Despite these limitations, Project 39A has attempted to curate a list of people being executed in India. The 35th Report of the Law Commission of India states a number above 1000 between the years 1947 to 1967.
Mentioned Below are some of the Capital punishment executed Since 2000.
Dhananjoy Chatterjee v. State of West Bengal (2004)
Dhananjoy was found guilty of both rape and murder, and killed Hetal Parekh, an 18-year-old student. He worked as a security guard for an apartment building. The victim resided in the same apartment where the accused was employed as a security guard. The victim was found dead in her home by her mother in the afternoon on the 5th March 1990. On May 12 1990, he was arrested by Kolkata police on charges of rape, murder, and theft of a watch. He was found guilty of all the charges and given a death sentence by the Alipore sessions Court in 1991.
Both the Calcutta High court and the supreme court of India upheld this judgement. He submitted a mercy petition to both President and the Governor of West Bengal, but both were denied. While the mercy petition of Chatterjee was pending before President, support for the rejection of the mercy petition as well as his execution was drummed up in West Bengal by various political groups and organizations. The mercy plea was rejected on 4 August 2004. On August 14, 2004, Dhananjoy was executed at 4:30 am in Kolkata’s Alipore Central Jail.
Mohammed Ajmal Amir Kasab v. State of Maharashtra (2012)
In the well-known 26/11 Mumbai attack, Kasab and nine other terrorists carried out multiple bombing and shooting attacks throughout the city. The terrorist attack at CST station, which was carried out by Ajmal Kasab and Ismail Khan, targeted major landmarks and left up to 58 people dead and over 100 injured. At the time, Kasab, who was 21 years old, was the only survivor of the group that carried out widespread devastation throughout Mumbai, killing 166 people. He was taken into custody following a shootout with the police, interrogated, and charged with 86 offenses, including murder and waging war on India. In March 2009, a trial for him began.
In May 2010, Kasab received the death sentence from a special court, despite Kasab’s attorney pleading for mercy and claiming that his client had been brainwashed by a terrorist group and could be rehabilitated. Kasab appealed the decision, but in February 2011, the Mumbai High Court rejected it. In July 2011, Kasab appealed the death sentence to the Supreme Court. Kasab claimed in the statement he gave to the Court that the prosecution had failed to establish the charges against him beyond a reasonable doubt. The Supreme Court rejected his appeal and upheld the Trial Court’s decision. The mercy petition he had submitted was denied by the then President Pranab Mukherjee as well. Ajmal Kasab was executed on November 21, 2012, in Pune’s Yerwada Jail.
The 2012 Delhi gang rape and murder, commonly known as the Nirbhaya case:
This case is about the rape and fatal assault that occurred on 16 December 2012 in Munirka, a neighbourhood in South West Delhi. The incident took place when Jyoti Singh, a 22-year-old physiotherapy intern, was beaten, gang-raped, and tortured in a private bus in which she was traveling with her male friend, Awindra Pratap Pandey. There were six others in the bus, including the driver, all of whom raped the woman and beat her friend. She was rushed to Safdarjung Hospital in Delhi for treatment and transferred to Singapore eleven days after the assault, where she succumbed to her injuries 2 days later.
Mukesh Singh, Vinay Sharma, Pawan Gupta, and Akshay Thakur were the four convicts who were hanged together on 20 March 2020 in the Nirbhaya gang rape and murder case. All the accused were arrested and charged with sexual assault and murder. the four adult defendants – Pawan Gupta, Vinay Sharma, Akshay Thakur and Mukesh Singh (Ram Singh’s brother) – were found guilty of rape and murder and three days later were sentenced to death. Delhi High Court and the Supreme court of India upheld the verdict of Capital Punishment. The four adult convicts were executed by hanging on 20 March 2020.
Conclusion
Capital punishment, also known as the death penalty and formerly called judicial homicide is a legal penalty ordered by the court against a person who has committed a certain crime that is prohibited by the law. In India, it is only in the rarest of the rare cases as per the Indian Penal Code and Code of Criminal Procedure. It is considered to be the most severe form of punishment; this type of punishment is awarded for the most heinous and grievous crimes against humanity. Capital punishment is the most controversial penal practice debated highly all over the world and the word ‘Abolition of Death Penalty’ is one of the most discussed topics in United Nation (UN) where Death Penalty is considered as a violation of Human Rights.
As rightly discussed by Apex court of India in Rajendra Prasad v. State of Uttar Pradesh, the Court held that the ‘special reasons’ required to impose the capital punishment must not relate to the crime, but focus must be on the criminal. Focus must not only be on elimination of criminal but also on elimination of crime from the society. There is a need to restore the peace and prevent future occurrence of crime and this can be achieved by creating a balance between the rights of criminal and victim.
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