Capital Punishment in India- A Critical Analysis
Author: Prateek Jain
LL.M. (2nd Semester) Seedling School of Law & Governance, Jaipur National University, Jaipur, Rajasthan
ISSN: 2581-8465
ABSTRACT
In the 21st century, each and every developed and developing country dealing with the issue related to increasing crime rate. As a developing country, India has a wide range of written legislation that offers various punishments to punish the wrongdoer and reduce the crime rate. There are different types of punishment in India such as capital punishment, life imprisonment, imprisonment, fine, etc. Capital punishment/Death punishment considered a grave type of punishment that is ordered in the rarest and rare cases. This particular paper gave an overview of the history and background of capital punishment in India with some landmark judgment given by the Supreme Court. It explains the methods of execution of the death penalty and gave an overview of the sentences passed for the death penalty in India: Annual Statistics report 2019. It also explains the theories related to capital punishment in India and the doctrine of rarest and rare cases. And provide statistical data about those countries that abolished the death penalty for all crimes or some ordinary crimes. And In the end, it gave an explanation about Mercy Petition, a statistical report published by the Law Commission of India on Mercy petition decided by the President of Indian. And it provides a brief about the recommendation given by the Law Commission of India on the punishment of the death penalty.
- INTRODUCTION
“Capital Punishment is against the better judgment of modern criminology, and, above all, against the highest expression of love in the nature of god.”
-Martin Luther king, Jr.
In the Mauryan Dynasty era, if a person is performing any act that is against the law of dynasty then they punish them with various punishments according to the nature of the act. The principal followed by dynasty to punish the wrongdoer was an eye for an eye, a hand for a hand, etc. The dynasties give capital punishment in the following ways which include, dragging the body by a horse, cutting of head or any body part, stamping by an elephant which was very brutal in nature.
When we look back into history, we found that King Hammurabi of Babylon was the first king who codified the criminal laws regarding Death penalty/Capital Punishment. In other parts of world different forms of capital punishment are practiced such as guillotining in France, beheading in middle east countries, execution by electrocution in Russia, etc.
Capital punishment or Death penalty is always the uppermost level of punishment that can be given to a wrongdoer under any law (penal law) in force in any part of the world. The death penalty is the lawful technique of the state in which it practices its capacity to take a person’s life. It has been in action since the initiation of the State itself.
In the British era, there were many cases of Indians were awarded death penalty and hanged till death after the proper trial or even before it. But after India got independence a new era of Indian judicial system came into existence. It was a complete contrast to the British era judicial system in which the Indians had no chance to access to justice, or if we take a glimpse of empires and kingdoms where the ruler or king holds the divine power to provide justice to the victim and punishment to the wrongdoer. The king, thus had the authority to sentence any person to death whoever may he or she be, even on a whim.
After 1947, when India became a republic nation and got its independence from the British ruler, and that brings a huge change in the system of passing death penalties to the accused. The lawmaker followed the rule of natural justice and amend The Indian penal code read with The Indian Constitution provided for the passing of death penalty only in rarest of rare cases and offences.
The Indian Constitution is Grundnorm for the judicial system of India that provides fundamental rights to the citizens. Article 21 of the constitution, provides the right to life as a fundamental right and guarantees that, “no person shall be deprived of his life or personal liberty except according to the procedure established by law.” This explains that every citizen has the right to live without any restriction and no one can withdraw their right to live from them, except by the procedure established under law, that is the state can take away your life through the given process of law if it deems fit.
But in the 21st century with written and codified legislation and developed ethics, Is capital punishment still really the most adequate option of punishment? Even after many Human rights organizations and NGO’s raising their voice and protesting against capital punishment and demand for its abolishment, it is still in practice by different countries. The United Nations declares, capital punishment or Death punishment as a violation of human rights and a crime against humanity.
- CAPITAL PUNISHMENT: MEANING & DEFINITION
A Capital punishment/Death penalty is a legal process where if any person commits any act that is against the law, then the wrongdoer is punished with the death penalty by the state. An order passed by the judicial authority of the death penalty is called the death sentence, while the whole process of killing the person is called the execution of the death order. Penal laws explain various crimes that can result in capital punishment are called capital crimes/ offences. The term capital has originated from a Latin word ‘capitalist’ that means ‘regarding the head’.It refers to a judgment that punished a wrongdoer to death. It is also a condition or scenario that is considered to be deadly; also a forecast of death.
In India, Criminal Procedure Code, 1973 provides the authority to High Courts for confirmation of death sentence under section 368. High courts pass an order of death penalty in rarest of rarest cases and murder, rape, for waging war against nation.
- CAPITAL PUNISHMENT IN INDIA
“Capital Punishment is a legal death penalty in India. India gives capital punishment for a serious offence.”[1] In the Indian legal system the death penalty is given for most grievous offence and heinous offences that fall under the category of rarest and rarest cases. Article 21 of the Indian Constitution is “Protection of life and personal liberty” that says, “No person shall be deprived of his life or personal liberty except as according to procedure establish by law”. This article explains that every citizen has the right to life and no one has the authority to take it without procedure established by law. In India, the Indian Penal Code provides the death penalty as a punishment in various offences such as ‘Criminal conspiracy, murder, waging war against the state, abetment of mutiny, dacoity with murder, and anti-terrorism. The Indian constitution provides the remedy of mercy petition to convicts that is presented before the president and president has to power to grant an order of mercy to convicts. Since 1995, the 22 death penalty is done in India and after Independence,52 death penalty is done in India. InMithu v. State of Punjab[2]case the Apex Court struck down the Indian Penal Code Sec 303 which provide mandatory death sentence for the offenders.[3]During passing of the resolution, calling for a prohibition on the death penalty by UN General Assembly, India cast a vote in favor of it.[4] In the year 2012, India continues its support on the prohibition of the death penalty by casting its vote against the United Nations General Assembly draft resolution request to ban the death penalty.[5]
- LANDMARK CASES RELATED TO CAPITAL PUNISHMENT IN INDIA
- MITHU VS STATE OF PUNJAB (1983)
“In this case the Supreme Court struck down Section 303 of the Indian Penal Code, which recommend for mandatory death sentence for offenders.”[6]
- BACHAN SINGH VS STATE OF PUNJAB (1980)
“In this case the Supreme Court says that capital punishment was given only to the rarest of rarecases.”[7]
- JAGMOHAN VS STATE OF U.P.(1972)
“This was the first case dealing with the question of constitutional validity of capital punishmentin India.”[8]
- METHODS OF EXECUTION IN INDIA
In India the death penalty is performed by hanging or shooting.
- HANGING: All death penalty in India is executed by hanging. Post-Independence, In India Nathu Ram Godse, was the first convict to be executed by the death penalty in Mahatma Gandhi Murder case. The Apex Court of India gave its suggestion that the death penalty must be awarded only in the rarest of rare cases trial in India.[9]
- SHOTTING: The Army Act and The Air Force Act of India also provides provisions of the implementation of the death penalty in India.[10] Section 34 of The Air Force Act, 1950 provides the power of the court-martial of any person who commits any act that is unlawful in the eye of law.[11]
Mostly, Indian Government practice hanging method to implement the death penalty.
- DEATH PENALTY IN INDIA: ANNUAL STATISTICS (YEAR 2019)
- STATE-WISE-STATISTICS
| State | J&K | H.P. | Punjab | Haryana | Delhi | Rajasthan | M.P | Gujrat |
| No. of persons currently on death row | 10 | 3 | 8 | 11 | 9 | 16 | 34 | 4 |
| Maharashtra | Karnataka | T.N. | Kerala | Telangana | Chhattisgarh | Orissa | Manipur |
| 45 | 27 | 13 | 19 | 7 | 9 | 5 | 2 |
| Tripura | Assam | W.B | Bihar | Jharkhand | U.P. | Uttarakhand |
| 2 | 10 | 26 | 28 | 23 | 54 | 14 |
*Total number of Prisoners on Death Row as on 31st December, 2019 = 378
“National Law School, Delhi, and National Legal Service authority carried out a project called “The Death Penalty India Report (DPIR)” that presents yearly statistics report about the death penalty given in India. According to the Project39A report, the total no. of prisoners on death row as on 31st December 2019 is 378 but the authorities carried out only a few executions. In India the death sentence rarely converted into executions. The law commission in India mostly recommends abolishing death sentence.”[12]
- THEORIES RELATED TO CAPITAL PUNISHMENT IN INDIA
There are two prime theories of punishment that are related capital punishment:
1. Reformative theory
2. Preventive theory
7.1. REFORMATIVE THEORY
Once Mahatma Gandhi quoted, “An eye for an eye turns the whole blind.” This reformative theory is based on this particular quote. The main objective behind this theory is to rehabilitating the wrongdoer and reform into law-abiding members of society. The purpose to practice this theory is to disapprove of all kinds of corporal punishment and put more pressure on reform the offender.
This theory helps a law-offender to live a life like a normal citizen in society. The prisons and reform homes are constructed with a motive to treat the inmates and help them to rebuild and reform themselves and as soon as offenders feel that they are ready to settle in the society and its members with a reform mindset. The transformation was generally done either through probation or parole as tools for reforming criminals. This reformative theory always supports the ideology of criminology. Criminology explains that “every crime as a diseased phenomenon, a mild form of insanity. criminal anthropology, criminal sociology, and psychoanalysis support Reformative theory. This theory aims to correct the criminal minds in a good manner and they can live a life like a normal citizen. This theory criticizes all kind of corporal punishment.”[13]
- PREVENTIVE THEORY
As it is quoted, “Prevention is better than cure”. Prevention is always helping us to prevent any unfortunate act to happen that may cause loss. The main objective behind this theory is to isolate the wrongdoer from the community and kept under security. According to this theory, the main purpose behind this is to set an example for the members of the community and prevent them to do any act that is against the law. In this theory, the judiciary passes sentence of the death penalty, life imprisonment, rigorous imprisonment to the offenders. This theory was supported by many law schools and law reformers because it helps to improve the penal law of the state and it shows the real effect on members of community & offenders. The main aim of the preventive theory is to take proper measures that the offender doesn’t repeat the unlawful act in the future after completing his/her punishment. This theory shows that the death penalty is the most severe form of punishment because of its impairment result. Taken the life of the accused person that killed an innocent person. If a person has killed someone and taken the life of that person. So, he is also liable to be deprived of his life as a punishment. In India penal law majorly follows this theory to provide justice and prevent the increasing rate of the crime rate.
- RAREST OF RARE CASE DOCTRINE
There is no proper definition of rarest of the rare cases mentioned in any penal or procedural law but during a criminal trial, the nature, gravity, and facts of the crime are taken into consideration for judge whether particular falls under the category of rarest of rare case. “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”.[14]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.”[15]
In Delhi Gang Rape-cum-murder case, the supreme court examines the nature and gravity of the case and considered it as a rarest of a rare case and passes an order of death penalty to the accused.
Evolution of Rarest of rare case-
- In Maneka Gandhi’s case, the Apex Court held that “the death penalty can be given only in special cases. It constitutes an exceptional punishment which will be imposed only with special reason and must be properly conferred by the High Court.”[16]
- In a case[17], Justice Krishna Iyer observed that “If the murderous operation of a die-hard criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.”[18]
- In the Bachan Singh case,[19] the Supreme Court laid down the caveat of rarest of rare.
- In Santosh Kumar Case, the Apex Court held that “appropriate punishment is to be determined on a case-by-case basis. The death sentence is not to be given in the `rarest of rare’ case where reform is not possible.”[20]
- RETENTIONIST AND ABOLITIONIST NATIONS
Article 5 of UDHR, 1948 and Article 7 of ICCPR, 1966 explains that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Even Article 3 European Convention of HR explains that “Capital Punishment has been recognized as a cruel, inhuman and degrading punishment which infringes on the basic human rights of the accused.” And Article 3 of UDHR provides the right to life, liberty and security to every human being.
Capital punishment were opposed by United nations, many countries and various law reformers and they demand for abolishment of capital punishment around whole world. The General assembly of UN explains that if any offender is sentenced with capital punishment then there must be proper fair trial which should be conducted by state.
| TYPE OF COUNTRY | NUMBER |
| Abolitionist for all Crimes | 106 |
| Abolitionist for Ordinary Crimes only | 7 |
| Abolitionist in Practice | 29 |
| Retentionist Countries | 56 |
| Total Abolitionist in law or practice | 142 |
“There are 106 countries which were abolitionist death penalty for all crimes, 7 countries were abolitionist death penalty for ordinary crimes only, and 29 were abolitionist death penalty in practice and 142 countries in the world abolitionist capital punishment in law. Only a minority of countries use capital Punishment in practice. Countries that practice capital punishment including India, China, Indonesia, and the United States.”[21]
- MERCY PETITION IN INDIA
The aim behind the mercy petition is to save the life innocent of a person form the death penalty. The Constitution of India provides power to the President and The Governor of a State to grant pardon under article 72 and 161.
If the Supreme Court sentenced the death penalty to a convict or reject his appeal against the order of High court, then the convicted person can use the remedy of mercy petition as a last resort to suspend his death penalty and pray for pardon. In the case, the supreme court held that “the grant of pardon by the President is an act of grace and therefore, cannot be claimed as a matter of right. The power exercisable by the President being exclusive of administrative nature is not justifiable.”[22]
President and Governor of a state are not independently exercising their power of granting the pardon, they need to take advice from the home ministry and head of the states. In the case, the supreme court held that “The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the state.”[23]
President and Governor of a state has the power to grant pardon, commute, remission, reprieve and respite the punishment.
LAW COMMISSION REPORT ON MERCY PETITION DECIDED BY PRESIDENT IN INDIA[24]
| Year | Number of Mercy petitions accepted | Number of Mercy petitions rejected | Total |
| 1950-1962 | 180 | 1 | 181 |
| 1962-1967 | 57 | 0 | 57 |
| 1967-1969 | 22 | 0 | 22 |
| 1969-1974 | 3 | 0 | 3 |
| 1975-1977 | NA | NA | 0 |
| 1977-1982 | NA | NA | 0 |
| 1982-1987 | 2 | 30 | 32 |
| 1987-1992 | 5 | 45 | 50 |
| 1992-1997 | 0 | 18 | 18 |
| 1997-2002 | 0 | 0 | 0 |
| 2002-2007 | 1 | 1 | 2 |
| 2007-2012 | 36 | 36 | 72 |
| Total | 306 | 131 | 437 |
*In 2013, Afzal Guru’s Mercy Petition was rejected and he was sentenced to death by death penalty on 9 Feb, 2013.
*In 2014, Yakub Memon’s Mercy Petition was submitted before President Pranav Mukherjee, but it was rejected and Yakub Memon was executed to death by death penalty on 30 July, 2015.
*In 2020, All 4 convicts in Nirbhaya’s Case presented their mercy petition before President Ram Nath Kovind, but it was rejected and they executed to death by death penalty on 20 March, 2020.
11. RECOMMENDATIONS GIVENBY LAW COMMISSION OF INDIA
- On 31st August, 2015, Justice A.P. Shah, Chairman, Law Commission, presenting the 262nd Law Commission report on death penalty in India.
- The Supreme Court of India referred issue of death penalty to Law commission of India in Santosh Kumar Satish Bhushan Bariyar v. State of Maharashtra[25]and Shankar KisanraoKhade v. State of Maharashtra[26].
- In 1967, 35th Law Commission report on capital punishment recommended the retention of death penalty in India.
- In Landmark case the supreme court upheld, “the constitutionality of the death penalty, but confined its application to the ‘rarest of rare cases’, to reduce the arbitrariness of the penalty.”[27]
- But after the 35th Report of Law Commission, the social, economic and cultural perspectives of the Nation have changed. So, it’s high time to reconsider and conduct a wide study about the application of the death penalty in India.
- After conduct, extensive study commission concludes that the death penalty does not serve the penological goal of deterrence any more than life imprisonment and it fails to achieve the penological goal.
- The Law Commission also concludes that India should adopt a reformative and rehabilitative form of punishment than a preventive form of punishment.
- The Law Commission recommended that the death penalty/capital punishment need to be abolished for all the crimes except crimes related to terror and waging the war that affect the national security and there is no reason to wait longer for the abolishment of the death penalty, we need to take proper and adequate steps against it.
- Finally, the Law Commission recommended that states should establish victim relief funds for the victims of crimes.
- CONCLUSION
Death Penalty/ Capital Punishment is not a new concept it has been practicing since the era of kings and emperors but it is an offence against human rights. Article 21 of the Indian Constitution and Article 3 of the United Nation’s Universal Declaration of Human Rights provides the right to life and personal liberty and death penalty which is completely against these provisions. Thus, the punishment of the death penalty should be declared unconstitutional and against humanity.
The main aim to practice the death penalty is to prevent the increasing rate of crime rate in India. But when we look into the crime statistics of our nation, the death penalty has not proved as an effective weapon to decrease the rate. Even the Law Commission of India recommended in its report that Indians need to abolish the death penalty for all crimes except offences related to terror. And we need to adopt a reformative form of punishment to punish offenders and educate them for being better human beings & law-abiding citizens of the nation. Law reformers should adopt the required steps to eliminate the punishment of the death penalty form society. Because it is not effective to control the crime rate in India.
[1]Sanjoy Majumder, “India and the death penalty” BBC News-South Asia, Aug. 4, 2005.
[2]Mithu v. State of Punjab, (1983)2 S.C.R. 690 (India).
[3]V. Venkatesan, “A case against the death penalty” Frontline-The Hindu, 7 September 2012.
[4]“General Assembly GA/10678 Sixty-second General Assembly Plenary 76th & 77th Meetings”. ANNEX VI.
[5]“General Assembly GA/11331 , Sixty-seventh General Assembly Plenary 60th Meeting”. Dec. 20, 2012.
ANNEX XIII.
[6]Mithuv. State of Punjab, (1983) 2 S.C.R. 690 (India).
[7]Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898 (India).
[8]Jagmohan v. State of U.P.,(1973) 2 S.C.R. 541 (India).
[9]Monica Sakhrani&MaharukhAdenwalla, “Death Penalty” Economic & Political Weekly; Vol. 40; Issue No. 11, 12 March, 2005.
[10]Law commission of India, “Consultation paper on mode of execution of death sentence and incidental matters” (PDF).”.
[11]Sec. 34, cl. a-o, The Air Force Act, No. 45, Acts of Parliament 1950 (India).
[12]Death Penalty in India: Annual Statistics (Year 2019),https://www.project39a.com/annual-statistics.
[13]Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898 (India).
[14]Ravji alias Ram Chandra v. the State of Rajasthan, (1996) 2 S.C.C. 175 (India).
[15]Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 S.C.C. 646 (India).
[16]Maneka Gandhi v Union of India, A.I.R. 1978 597(India).
[17]Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 S.C.R. 78(India).
[18]Dr.Janak Raj Jai, Death Penalty 120, (Regency Publications, New Delhi, 2005).
[19]Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898(India).
[20]Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 S.C.C. 498(India).
[21]Abolitionist and retentionist countries, https://deathpenaltyinfo.org/policy-issues/international/abolitionist-and-retentionist-countries.
[22]Kehar Singh v. Union of India, (1989) 1 S.C.C. 204 (India).
[23]Dhananjoy Chatterjee alias Dhana v. State of West Bengal, (1994) 2 S.C.C. 220 (India).
[24] Law Commission of India, 262nd Report on Death Penalty, (August 2015).
[25]Satish Bhushan Bariyar v. State of Maharashtra, (2009) 6 S.C.C. 498.
[26]Shankar KisanraoKhade v. State of Maharashtra, (2013) 5 S.C.C. 546.
[27]Bachan Singh v. Union of India, (1982) 3 S.C.C. 24.