SHOULD DEATH PENALTY BE ABOLISHED IN INDIA?

By Pranya Arora, Bba.Llb (H)

Vivekananda Institute of Professional Studies

 

“We should forgive our enemies, but not before they are hanged.”

-Joe Abercrombie

 

INTRODUCTION-

Over the passing centuries, we have witnessed the growth and decline of various administrations but the only thing common within them was their use of the death penalty as a method of inflicting justice.[1]

“If we believe that murder is wrong and not admissible in our society, then it has to be wrong for everyone, not just individuals but governments as well.” -Helen Prejean, Dead Man Walking

The debate encircling capital punishments has once again been originated due to the modern ‘imperialism’ debate in society. While few people believe that the offenders or perpetrators who indulge in heinous offenses must straightforwardly be sentenced with capital punishment, while others oppose this claim and uphold that the criminals must not be outrightly given capital punishment, because it would create more infliction than good to the society at large.

In most countries, the death penalty[2] has been abolished, while understanding that the death penalty has no area in a democratic and civilized community. [3]But India is amidst those countries which yet uphold the death penalty. This blog would try to examine the arguments which are presented from both stands while identifying the provisions under which the death penalty is granted.

The broad demand and acceptance of capital sentence in society changed the lawmakers to prolong the scope of death penalty jurisprudence in India. Following the protest after the Delhi rape case, the Parliament had improved the Juvenile Justice Act and sanctions the death penalty for children beyond 17 years if they have perpetrated[4] severe offences. Furthermore, the State Legislature of Andhra Pradesh amended the Indian Penal Code [5]and prolonged capital punishment[6] to the crime of rape. The impact of public opinion on the legislature is quite understandable because the people elect them. But the Judges, who decide the quantum of sentence, are not elected by the people and they are not obliged to support the public opinion. The Judges are vested with a responsibility to support the importance of the Constitution. In the following paragraphs, the author examines how far the practice of the death penalty in India is following constitutional principles.[7]

Consequently, India’s international stand on the Moratorium on the death penalty both at the General Assembly and at the Human Rights Council has always been against the resolution stating, it goes against the rightful law of the nation where execution is brought out in the “rarest of rare” cases.

DEFINITION OF DEATH PENALTY-

A death sentence[8] is a legal rule where a person is put to death by the state as a penalty for a crime perpetrated by him. The legal proclamation that someone should be punished in this manner is called a death sentence, while the actual process of killing the person is called an execution. Crimes that can result in the death penalty are known as capital crimes or capital offences. The term capital has a Latin origin from the term capitalist, literally “concerning the head”. It refers to a sentence that punishes a sentenced defendant to death. It is also an affliction or a situation that is decided to be fatal or prognosis of death.

PROVISIONS IN THE IPC-

The Indian Penal Code (IPC) gives that only in the following offences, death punishment could be awarded:

Murder (s.302),

Abetment[9] of suicide by a minor, paranoid person, or intoxicated person (s.305),

Frightening or producing[10] any person to give false evidence occurring in the conviction and death of an innocent person (s.195A),[11]

Perjury ending in the conviction and death of an innocent person (s.194),

Crime, for waging war against the Government of India (s.121),

Abetment of mutiny committed (s.132),

Attempt to murder by a serving life offender (s.307(2)),

Abduction for bribe (s.364A),

Dacoity [armed robbery or banditry] with killing (s.396),

Illegal conspiracy (s. 120 B),

SHOULD THE DEATH PENALTY BE ABOLISHED IN INDIA?

The simple answer is no. Some claim that the sentence which is to be given to a perpetrator must be dependent on the seriousness of the crime which he has performed. For example, if someone has perpetrated a crime like murder or rape, then that person must be granted the death sentence because the offence which he has performed is very grave. The propagators are often of the opinion that giving the death sentence would establish an example for other offenders, and so, it would act as a restraint, and others who are likely to perpetrate such crimes would cease from doing so, because of the terror of losing their life. Thus, this would help in diminishing the crime rate in society.

RAREST OF RARE DOCTORINE

In Nathuram Godse v Crown (Assassination of Mahatma Gandhi)– the situation of Nathuram Godse is the primary example of rarest of a rare type that happened in free India. On the night of 30th January 1948, Nathuram Godse killed Mahatma Gandhi in a petition conference at Birla Mandir in Delhi. After a late preliminary, Justice Amarnath awarded him capital punishment which was collectively asserted by the three adjudicators of Punjab High Court.

In Kehar Singh v Delhi Administration, the apex court declared capital punishment awarded by the trial court and kept up by High Court to the three appellants Kehar Singh, Balbir Singh and Satwant Singh for devising plot and committing murder of Smt. Indira Gandhi under sections 302, 120B, 34, 107, and 109 of IPC. The court upheld that the homicide is the rarest of rare cases in which extraordinary execution is called for a professional assassin and his schemers.

In the shocking instance of Santosh Kumar Singh v Union Territory of Delhi (Mattoo Murder case), yet, Santosh Kumar Singh was accused of raping the person in question and breaking each bone in her body his conduct was as yet not recognized fundamental enough to mark the case “rarest of rare”.

In India, the death sentence used to be mandatory under section 303 of IPC. In any case, in 1983 Supreme Court in Mithu Singh v State of Punjab declared section 303 ultra vires the Constitution on the ground that it violates article 14 as furthermore right to life presented under article 21.

The perpetrator, who has perpetrated such a heinous crime, might re-indulge himself in the identical crime, or some other heinous crime following he has served his term of imprisonment and has been cleared. Therefore, alternatively of granting him imprisonment, if he is granted the death sentence, society would not be under peril from such a person. Thus, to stop the happening of any such crime, the offender must be given the death punishment. Though, this logic appears relevant solely to execute serial killers or those who have been regular offenders and normally indulge themselves in one or other sort of crime in normal situations, another reasonable explanation that would support awarding the death penalty is torture which is very prevalent in prisons, either by the jail administrators or fellow criminals. It is also claimed that those who are awarded lifetime imprisonment, are devised with no additional option but to live a trivial life behind the bars, and therefore, it is much better to confer them the death punishment. Another point is that detaining someone is far more expensive than executing him. This, though, cannot be assumed to be justified to execute every offender, but only to those who are replicated offenders and are anticipated to perpetrate horrendous offences in the future also. The death punishment is seldom associated with revenge for the misery and suffering that the crimes perpetrated on the victim. The defenders of the purpose of the death penalty demonstrate that those who have taken another person’s life do not have the freedom to live and therefore must be executed. This also connects an emotional point attached to it, the family members of the victims’ sense consciousness of justice if such offenders are executed and are left open in the society, to commit other offenses. Another circumstance is regarding the safety of fellow prison convicts and defenders. Offenders who have perpetrated heinous crimes like murder, and are serving their life-imprisonment sentence, are considered to have a forceful personality, and such offenders may, in the future, strike someone during confinement.

CONCLUSION-

The Supreme Court has, in several cases, reported that the death punishment should not be pronounced unconstitutional, because the originators of the Constitution haven’t noticed it fit to do so, and that the legislature further hasn’t taken any steps to eliminate the death punishment. I realized that there is no uniformity in precedents. The biased and arbitrary awarding of the capital sentence has made the death punishment jurisprudence into ‘judge centric jurisprudence’. The personal virtue (inclination) of judges is more prominent than the principles devised by precedents. This has designed skepticism in the consequence of death punishment prosecution and the same has been recognized in several judgments. Hence, it is a special time for the Judiciary to rethink the constitutionality of the death penalty in India. I firmly feel, we have to improve our laws, especially for the death penalty. Our legislation should be such that a penalty should be so austere that it should remind not only the offenders/ terrorists/culprits but additionally it should be an existing example for the people around him about his cruel acts.

[1] Section 132 W Abetment of mutiny

– Section 194 W Giving or Fabricating false evidence with intent to produce conviction of

capital offence

– Section 195A W Threatening any person to give false evidence

– Section 302 W Punishment for Murder

[2] https://www.civilserviceindia.com/subject/Essay/capital-punishment.html

[3]   https://www.iilsindia.com/blogs/should-capital-punishment-be-abolished/

[4] 1938 AIR 1957,183 SCR 653

The Code of Criminal Procedure 1898, section 340.

[5] https://link.springer.com/article/10.1007/s11417-019-09304-0

[6] 25 Majumder, Sanjoy. “India and the death penalty.” BBC News 4 August 2005

[7] https://blog.ipleaders.in/death-penalty/

[8] Rarest of Rare Doctrine: Death Penalty, Academike (Dec. 7,2014),

https://www.lawctopus.com/academike/rarest-raredoctrine-death-penalty/

[9] https://www.thehindu.com/opinion/op-ed/is-it-time-to-abolish-the-death-penalty/article25735508.ece

[10] https://www.drishtiias.com/daily-updates/daily-news-editorials/is-time-to-abolish-the-death-penalty

[11] https://www.civilserviceindia.com/subject/Essay/capital-punishment1.html

6 thoughts on “SHOULD DEATH PENALTY BE ABOLISHED IN INDIA?”

  1. Mayank Pandey

    Thank you so much for sharing all this wonderful info. It really seems a very well researched blog.

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