Death Penalty In India
Author:- Anjulika Arya, 2nd Year LLB Student,Dr. Rizvi College of Law, Karari,Kaushambi, Uttar Pradesh, Affiliated to Prof. Rajendra Singh (Rajju Bhaiya) University, Prayagraj
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Introduction
Our society works according to same rules and laws, due to which there is atmosphere of peace in the society, in order to run the society well, laws and constitution are made in any country, whoever breaks the law will be punished. Is a punishable offense the punishment of any offense depends on its seriousness. The constitutional validity of death penalty was first challenged in the United States of America, which took steps to abolish the death penalty. In India, the death penalty is called capital punishment. Section 53 of Indian Penal Code, 1860, provides for the death penalty. Section 368 of the Code of Criminal Procedure empowers the High Court to award capital punishment. The death penalty is given in cases where serious crimes are committed, in which the collective conscience of the community is so astonished that it expects the judiciary to give death penalty to the perpetrators. They can be kept in the purview of serious cases. It is currently discussed that the death penalty should be replaced with life imprisonment. The Supreme Court has repeatedly held that the long delay in capital punishment is the human effect of causing condemned prisoners to suffer physical and mental agony amidst hope and despair. The death penalty becomes humane, due to which the prisoner’s sentence has to be changed to life imprisonment. According to new data, delaying the trial of death row convicts makes the death penalty effective, besides increasing the travel on the convict and his family. By the end of December 2017, 371 prisoners in India are said to be awaiting the death penalty. Were doing an old case of 1991 which is from 27 years ago, only 4 convicts were given death sentence in 13 years. Only four convicts were given death sentence in 13 years including one rapist of a minor child and three guilty of terrorism offenses. As per 2015 report death row convicts still could not get sentence due to delay. In trial 2018 in the Supreme Court upheld the death penalty for two of the four convicted rape and murder convicts, and organizations criticized the death penalty. Many countries have abolished the death penalty. India has been opposing the United Nation’s proposal to ban the death penalty from time to time. Each member state of the United Nations has the right to determine its legal authority and legal punishment. India has to limit the death penalty in the decision taken by the Supreme Court.
Definition of death penalty- Death penalty is a legal process where a person is given death sentence by the state as punishment for the offense committed by him .
Provisions on Death Penalty in India
Section 354(3) of the Code of Criminal Procedure,1973 states that “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”
Offences under the Indian Penal Code, 1860 that awards the death penalty sentences
S. No. | Sections under IPC | Description of the offence |
120 B | Being a party to criminal conspiracy to commit a capital offence | |
121 | Waging, or attempting to wage war, or abetting waging war, against the Government of India | |
132 | Abetting a mutiny in the armed forces(if a mutiny occurs as a result), engaging in mutiny | |
194 | Giving or fabricating false evidence with intent to procure a conviction of a capital offence | |
195A | Threatening or inducing any person to false evidence resulting in the conviction and death of an innocent person | |
302&303 | Murder | |
305 | Abetting the suicide of a minor | |
307(2) | Attempted murder by serving life convict | |
364A | Kidnapping, in the course of which the victim was held for coercive purposes or ransom | |
376A, Criminal Law Amendment Act, 2013 | Rape if the perpetrator imposes injuries that result in the victim’s death or incapacitation in a persistent vegetative state or is a repeat offender | |
376 AB | Rape of a child below 12 years of age | |
376DB | Gang Rape of a child below 12 years of age | |
376 E | Certain repeat offences in the context of rape | |
396 | Dacoity with Murder- in cases where a group of five or more individuals commits dacoity and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty |
Part II, Section 4 of Prevention of Sati Act- Aiding or Abetting an act of Sati
31A of the Narcotic Drugs and Psychotropic Substances Act- Drug trafficking in cases of repeat offenses.
Constitutional validity of death penalty in India
India is one of the nations that have neither totally removed the death penalty provision nor passed legislation outlining its legality. The validity of the death penalty has been contested on several occasions since the Indian Constitution was established through Supreme Court petitions.
The constitutional validity of the death penalty was challenged from time to time in various ways:
The Supreme Court's five-judge bench unanimously maintained the death penalty's constitutionality in Jagmohan Singh v. State of Uttar Pradesh, concluding that it did not violate Articles 14, 19, or 21. In this case, the validity of the death sentence was contested on the grounds that it contravened Articles 19 and 21 because no procedure was provided. It was argued that the process outlined by Cr. P.C. was limited to finding guilt alone and did not include the imposition of a death sentence. The Supreme Court held that “the choice of death sentence is done by the procedure established by law”. It was noted that the judge decides between a death sentence and a life sentence based on the circumstances, facts, and type of crime presented during the trial.
Crimes Punishable with death penalty in India
Murder- Murder is a heinous crime as per section 302 of IPC. Bachchan Singh v. State of Punjab1 the Supreme Court held that the death penalty can be said to be constitutional only if it is invoked as an extraordinary punishment in heinous cases.
Terrorism related crime – Any act which endangers the life of the people or causes serious damage to property, the use of explosion comes under terrorism, which can also be punished with death.
Rape -When the rapist causes the victim’s death in the course of crime, treats her body mercilessly, or those who commit gang rape can be sentenced to death.
Treason- When any tries to wage war against the government, he can also be given the death penalty.
Kidnapping- Unlawful detention or intimidation of a person can also be punishable with death
Positive aspect in favor of the death penalty - The parties to the death penalty believe that the death penalty is intact not only in India but all over the world. The death penalty cannot be abolished by referring to a civilized country. In serious cases like murder and rape, the death penalty is justified. With this,, criminals who have a feeling of such guilt in the mind of the criminals can also be killed. They ask for stones in support of the death penalty . The person who has committed such a serious crime does not have the right to live, so it is only right to live,so it is only right to give them death. It will also give justice to the victim and its effect will also be seen in the society.
Negative aspect of the death penalty - It is often observed that we have faulty justice system and right to justice due to which the innocent are killed. Reveal this innocent person guilty because of the arrangement of becomes, and proves himself innocent didn’t know how to cut .Whose because of which he gets the death penalty.It is right to kill someone or to give death to the criminal who has committed murder as punishment. Some parties believe that this act of murder. That’s why many countries have been favor of abolishing the death penalty.Some parties believe that criminals must be given a second chance to live and improve their lives.By giving a chance to the criminals, they will realize their criminal incident and by staying in jail, they can repent of their criminal incident.
Ediga Anamma v. the State of Andhra Pradesh2-The Supreme Court laid down the principle that life imprisonment for the offence of murder is the rule and capital sentence is the exception in certain cases. The court also stated that a special reason should be given if the court decides to impose a death sentence.
Machhi Singh and Others v. the State of Punjab3 -: A feud between the families took away seventeen lives. The Supreme Court explained the mitigating and aggravating factors and also gave the circumstances related to the imposition of the respected punishment. In the aggravating factor, murder should be preplanned with extreme brutality or murdering a public servant on or off the duty. And in the mitigating factor, the court considers the circumstances of the offender along with the circumstances of the crime .
The Protection of Children from Sexual Offences Act, 2012 - The courts are given the power to sentence the punishment for the death penalty. In the following headings, a few insights into the most horrifying death row cases have been mentioned4.
Vinay Sharma v. the Union of India5 - In this case also famously known as the Nirbhaya gang -rape case, had a shocked the conscience of the whole country. The unfortunate and brutal incident occurred in the chilled weather of Delhi on a bus. The girl was brutally raped by six accused which also led to the death of the girl. An iron rod was also inserted into her private parts and she was thrown naked to the road. All the physical and mental torture led to her death. When the case was brought before the court, one of the accused committed suicide in jail and one of the accused was a juvenile so he was not sentenced to death. But the other four accused were sentenced to death and were . also hanged in the year 2020. This judgment was concluded after analysing the aggravating factors outweighed the mitigating factors if any. The death sentence was imposed because life imprisonment seemed inadequate considering the relevant circumstances of the crime and the inhuman torture committed on the victim which brought about her death.
habnam v. Union of India6 –The court awarded a death sentence to the woman and the same was hanged for the first time in the Indian Criminal Justice system.In this case Shabnam with her lover killed the members of her family.This incident happened in the year 2008. Shabnam killed her family members because they weren’t allowing her to marry her lover. Therefore she planned a brutal murder for her family which amounted to be the aggravating factor. She didn’t even leave her young and also submitted mercy to the president which got rejected and she is mostly to be hanged by next year.
Hyderrabad veterinarian case7- In this case the female doctor was all alone in the scooter which she parked to the Shamdabad plaza and from where she took the taxi to the office where she was going to work. In the meanwhile four accused were monitoring her and which led them to puncture her scooter in her absence. When she was back from her work she saw that her scooter was punctured. And in the meanwhile ,these four accused came and stared forcing her and raping, burning her body . The case was clear cut case for awarding death sentence, but here the police encountered the accused leading to questions about our Indian Criminal System.
Manoj & Others v. State of Madhya Pradesh8-In this case the supreme court issued guidelines of death penalty to collect mitigating circumstances of the accused at the trial stage the trial court must elicit information from the accused and the state -the state must for an offence carrying capital punishment at the appropriate stage produce material which is preferably collected beforehand , before the sessions court disclosing psychiatric and psychological evaluation of accused.
Conclusion
The death penalty is one of the most controversial topics of the Indian society . It exists from the ancient periods and still prevailing in some major countries, India is one of them. In India, death punishment is given only in rarest of the rare cases but what is the exact meaning of the phrase ‘rarest of the rare cases’ has caused much controversy. The ultimate aim to give punishment anywhere is to reduce the crime and to impose some penalty on the name of justice .India follows the same phenomenon but as per the Indian constitution, it is the violation of the provisions of right to life and dignity provided in Art.21, still it is constitutionally valid. This paper provides an overview of capital punishment in India. It also explains the history and various cases on the death penalty. The study observed that all the judgments pronounced in heinous offences while keeping in mind the public at large which eventually settle that the awarding capital punishment on rarest of the rare case is just and fair.
Capital punishment has always been a controversial matter of social and moral aspect in the world .Since death punishment is the process of killing a person, who is accused of a heinous offence in the name of justice, it is not just a punishment but more than that as according to the principle of the human rights it is immoral and determines the lack of respect for the human life. Also if someone opposing the death punishment, it doesn’t mean he or she is supporting the criminal. As per Indian constitution or some other countries, death punishment is valid and the same constitution provides the provisions of right to life and human dignity too. United Nation supporting the abolition of the death penalty and India is an active member of the United Nation, still ,capital punishment is there in our statute book. This is because in today world, the conditions and circumstances of crime is brutal a few of them are Delhi gang rape case and Hyderabad gang rape case are known to be the most brutal cases as of now,because of this society demands justice which must be as harsh as the crime committed. That’s why the death penalty is still exercised in India.But we need to understand, even though we have the death penalty as capital Punishment for like these heinous offences still it is not helpful for eliminating the crime instead the crime rates are rapidly increasing yearly.But in relation to the death penalty, the punishment for this crime in India should also be reconsidered.Therefore ,the Legislation and judiciary while implementing any law should think in that way, we need to eliminate the crimes and not the criminal.
References
Prof.Kumar Narender,The constitutional law of India (Allahabad Law Agency 10th edition Reprint 2019).
K.D.Gaur Textbook on Indian Penal Code 1860 ( Lexis Nexis 7th edition 2020).
Pillai’s PSA, Criminal Law ( Lexis Nexis 13th edition,2017)
https://blog.finology.in/Legal-news/capital-punishment-in-india
https://www.barandbench.com/columns/death-penalty-supreme-court-of-indias-recent-approach
https://www.hindikiduniya.com/essay/essay-on-is-death-penalty-effective-in-hindi
https://hindi.ipleader.in/significant-analysis-of-death-penalty-in-india/
en.m.wikipedia.org
https://Indiakanoon.org
https://Indiankanoon.org
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