Table of Contents
About the Paper
The issue of capital punishment is the most controversial and relevant topic for debate and discussion. It has been debated or discussed in many plays even in news channels, studies from prolonging time but till now no conclusion can be a draw. Capital punishment is an integral part of the Indian Criminal system it is the mode of punishment from a long time for the elimination of crime and it is used for brutal crimes. There must be a penalty for a wrongdoer; basically there are two reasons for awarding a punishment. First to punish the wrongdoer or inflicting punishment on the other wrongdoer. Intently capital punishment is one of the common punishment for Murder. But after the amendment of criminal law, it should be awarded in the “rarest of the rare case”[1].
Various Countries have their different opinions on criminal matters. For example, In Arab Countries, they believe in “an eye for an eye” punishment rather than deterrent punishment.
In 2019 the most executions took place in China, Iran Saudi Arabia, Iraq and Egypt. China remains the world’s top executioner – but the true extent of the use of the death penalty in China is unknown as this data is classified as a state secret; the global figure of at least 657 recorded in 2019 excludes the thousands of executions believed to have been carried out in China[2].
INTRODUCTION
Capital punishment is the most popular topic for discussion, capital punishment, also called the death penalty “capital punishment is the legal infliction as a death for the violation of criminal law”[3].
Under section 53 of IPC which deals with the various types of punishments in law which can be given by the criminal courts, if the person found liable under this code. There are five types of punishment recognized under section 53 of IPC.
- Death
- Imprisonment for life
- Imprisonment: it is of two types- Rigorous imprisonment and Simple imprisonment
- Forfeiture of property
- Fine
All the above punishments are given according to the act of the person but in rare cases, first punishment i.e. Death or capital punishment have awarded the recent case of Delhi called “NIRBHAYA CASE” the four convicts in the 2012 Delhi gang-rape case could be hanged on 1st February 2020 is the first case in 5 years a death penalty.
One of the initial executions of independent India was of Nathuram Godse and Narain D Apte, assassins of Mahatma Gandhi, they were hanged till death in Ambala Central Jail in Haryana on November 15, 1949.
Muhammad Afzal Guru has convicted in 2001 the Parliament attack and was sentenced to death Supreme Court on December 2002. But he was hanged in February 2013, after ten years.
Evolution of capital punishment
How the death penalty enter into the World?
In the initial time, the death penalty has established as a punishment of Crimes. In the 18th century, the code of king Hammurabi of Babylon codified the death penalty for 25 different Crimes, although Murder was not one of them. Mosaic Law codified many capital crimes, there were using different techniques such as hanging, shooting, throwing of a criminal from a rock etc.
In Britain, while increasing the cases of capital punishment until the 1700s around 200 people were awarded a death sentence. These included small crimes like stealing from the house, cutting of trees or many more however juries not found guilty when the penalty was great and the crime was small. Then the reforms started to take place so, in 1823, five Law passed or in 1840, there failed to abolish the capital punishment. Through in 19th and 20th centuries more and more capital punishment was abolished until today only a few countries in Europe retain capital punishment.
In Islamic law, as expressed in Quran, Capital punishment is “condoned” although Quran provides the death penalty for several cases it doesn’t involve murder it includes crime like- robbery, the apostasy of Islam or many more things[4].
That’s how Capital punishment enters in the whole world, now let’s have a look at how it enters into India.
How the death penalty enters into India?
Capital punishment is an ancient law; practically there is a country where the death penalty has never existed. First five years after the constitution was made the death penalty is the common punishment for murder. Sever members of the constitutional assembly gave their ideas to abolish the death penalty during the drafting of the constitution, but there was no as such provision was included in the constitution. In 1955 the discreet power to awarded two types of punishments either capital punishment or life imprisonment before 1955 it was common to awarded capital punishment but this had changed in 1955.
In the 1980 Bachan Singh case[5] judgement, the Supreme Court said that “the death penalty should be awarded in ‘rarest of rare’ case, but the supreme court didn’t define the definition of rarest of the rare. In machhi singh v. State of Punjab[6] court explain the definition of “rarest of rare” and held some factor when death sentence awarded It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty. The community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance[7]-
Manner of commission of crime
Manner of commission of the crime means that when the murder has done with the extremely brutal, revolting or dastardly manner.
Anti-social and socially abhorrent nature of crime
Anti-social or abhorrent nature means that when the murder of a scheduled cast or minority community although not for personal reason but in circumstances which arouse social wrath.
Motive of murder
When the murder is done with the motive which evinces total depravity and meanness. When the assassin is committed murder with the motive to earn money.
Magnitude of crime
When the crime is enormous with proportion. For instance, when multiple murders say of all or almost all the members of the family or a large number of persons belonging to a particular community.
The personality of the Victim of murder
When the victim of murder is an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder
International law provisions on capital punishment
While there is as such no prohibited on the capital punishment under the International Covenant on Civil and Political Rights or any other virtually universal treaty, but yea number of instruments is in favour of abolishing of the death penalty.
At the international level, the most important treaty relating to the death sentence is Article 6 of the ICCPR, which clearly impose limitations on the imposing of the death penalty: in countries where capital punishment has not abolished, sentence only awarded in the most series crime. This penalty can only be carried out pursuant to a final judgement rendered by a competent court the sentence is not awarded on the following grounds:-
- If a fair trial has not been granted.
- Other ICCPR rights have been violated.
- Sentences of death shall not be imposed on the convict below 18 years or pregnant woman.
- The convict is not entitled to seek pardon or a lesser sentence.
Constitutional provision on capital punishment
Death penalty and capital punishment is the ultimate punishment which is imposed by society for any crime committed against the law. The Indian constitution is said to be an amalgamation of many constitutions in the world such as Britain, Canada, France etc. The constitution of Indian guarantees “Right to life” to all its citizens subject to its deprivation by the procedure established by law[8] which has been lifted from the constitution of America and Japan.
Article 14 of the Indian constitutional deals with the “Equity before the law and equal protection of the law” this article guarantees the citizens that there shall be no discrimination between people on the basis of caste, creed, religion, sex etc. Unless this is such requirement of such discrimination to achieve equality[9]
In many news debates or any other formal debates programs we frequently we see a topic “capital punishment is unconstitutional or not” much time we see the same topic so in case of Jagmohan Singh v. State of UP[10] plaintiff change the basic ground of death penalty is not valid as it violating article 19 or article 21 of the Indian constitution. According to the council, the procedure prescribed under the criminal procedure of code was only dealing with the procedure of finding guilt, not finally deciding to award the death sentence. The Supreme Court held that decision of the death penalty and life imprisonment is done according to the law based on circumstances and nature of the crime. In this case, the five-member bench of the court decides the capital punishment was not under in any circumstances violating any article of the constitution of India.
Another case of Rajendra Prasad v. State of Up[11] in which the same question of the validity of the death penalty against article 14. Under this case giving discretion in the hand of the judge to decide on the punishment whether it violates article 14 on the constitution or not.
Article 72 and 161 of the Indian constitution empowers the President of India and the governor of the state to grant pardon or remission of punishment to an accused who is convicted of any offence.
In the historical case of Madhu Mehta v. Union of India[12] where there was a delay in the final disposal of mercy petition for about nine years the court was finally directed to commute the punishment of death sentence to life imprisonment as there was no reasonable justification for this delay hence it was considered to be violating Article 21 of India Constitution. This case laid the principle of speedy trial and disposal of mercy petition.
Where the high court has, on appeal of an accused person and convicted him and sentenced to death he may appeal in Supreme Court[13].
Crimes in which capital punishment is awarded
There are many crimes in which capital punishment is awarded like:-
Rape cases
A man is said to committed rape when he has sexual intercourse with a woman under any circumstance which defines in section 375 of IPC. And which results in death or left in a “persistent vegetative state” may be punished with death under the criminal law Act 2013. Gang rapes are punishable with the death penalty. These changes were adopted after the “NIRBHAYA CASE” 2012. According to the 2018 Criminal law ordinance if a person raping a girl who is below 12 years will be held liable with the death penalty or sent in prison for 20 years.
Murder cases
If a person has committed murder then that person shall be punishable by death sentence or life imprisonment[14].
Criminal conspiracy
When two or more persons agree to do or cause to be done, an illegal act or an act which is not illegal by illegal means, such an agreement is designated as criminal conspiracy[15] whoever is a party to a criminal conspiracy to commit an offence shall be punishable with death[16].
Waging war against Indian
Whoever, wages war against the government of India, or attempt to wage such war, or abets the waging of such war, shall be punished with death[17]. In other words, waging war means an attempt to fulfil needs by creating violence. This is usually accrued when severe people assemble and raise voice against the state. As per section 121 of the IPC shall be punishable with death or life imprisonment and also liable to pay fine.
Military offences
Whoever abets the committing of mutiny by an officer, soldier, sailor or Airman, In Army, Navy or Air Force, if mutiny is committed in consequence of that abetment that person shall be punished with death.
Treason
Treason means the action of betraying someone or something. The death penalty shall be awarded to the person who is waging or trying to commit waging war against the government or any statutory authority.
But, there are certain categories which are excluded from capital punishment like a minor, pregnant woman, unsound mind person.
Procedure of death penalty in India
A High court may pass any sentence authorized by law[18]. As per section 28(2) of CrPC 1973, it clearly states that a Session Judge or Additional Sessions Judge may pass any sentence authorized by law, but in case of the death sentence passed by any judge shall be subject to confirmation by the High Court.
Under section 366 of CrPC clearly states that “when the Court of Session passes a sentence of death, the proceeding shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court”.
As per the provisions of section 367 of CrPC “when the death sentence is submitted in the High Court for the confirmation then the Court has the power to ask for further inquiry. The court may appoint anyone for the same or they do it, till that time the convict will be sent under police custody, not in imprisonment. The court may:-
- Confirm the death sentence
- Direct the session court to further inquiry
- If any court found irrelevant consideration, lack of evidence. The court may absolve the accused.
Whenever the death sentence shall be confirmed or a new sentence passed by the High Court then at least it passed or confirmed by two judges[19]. As per the provision of section 370 of CrPC 1973, when such type of case is heard before the Bench of Judge then the case shall be decided in the manner provided under section 392 of CrPC.
Appeal to Supreme Court
As per the provision of section 415 of CrPC provide that if the death order passed by the High Court and from its judgement lies to the Supreme Court under sub-clause
- Or sub-Clause
- Of clause (1) of Article 134 of the Indian constitution,
The High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired, or if an appeal is preferred within that period until such appeal is disposed of.
When the death sentence is passed by the High Court and the person sentenced to make an application to the High Court for the grant of a certificate under Article 132 of the Constitution. If the High Court granted a certificate under Article 132 of the Constitution until the period allowed for preferring an appeal to the Supreme Court on Such certificate has expired[20].
The High Court doesn’t award a death sentence to a pregnant woman. If a woman is found pregnant then the Court may postpone a death sentence or may convert it into life imprisonment[21].
Review petition
In India, after the decision of the Supreme Court or High Court, it can be reviewed in a Review petition which is filed by either party. As per Article 137 of the Indian Constitution and the rules of Article 145 of the Indian Constitution, the Supreme Court has the right to review its Judgement. Review the petition file within the 30 days of pronouncing the Judgement and the same bench will look for the case. Criminal review petitions can be filed only on the ground of error apparent on the face of the record.
Last Resort:-power of president
After the confirmation of the death penalty by the supreme court as per the provision of Section 354(5) of CrPC. States that “the convict shall be hanged by the neck till death” But the convict still has the chance as a last resort- mercy petition.
Mercy Petition is the last resort when the convict loses all his remedies available to him/her under the prevailing law. Then he files a Marcy Petition before the president of India. A convict can file a mercy petition under article 72 of the Indian constitution.
Provisions of Article 72
Power of the President to grant pardons etc and suspend, remit or commute sentences in a certain case.
- The president shall have the power to grant pardon, reprieves, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
- In all cases where the punishment or sentence is by a Court Martial:
- In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the union extends:
- In all cases where the sentence is a sentence of death:
- Nothing in sub-clause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the governor of the state under any law for the time being in force.
So as per the provisions of Article 72 of the Indian Constitution president has the right to grant relief to the convict from a death sentence.
Provision of Article 161
Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
Process of mercy petition
A convict under the sentence of death is allowed to write a Mercy petition within the seven days of Judgement. Either the convict or on behalf of his relatives write a mercy petition and submit it to the president which is received by the president’s secretary on his behalf and transferred it to the Ministry of Home Affairs with the recommendation. The superintendent of Jail informs the convict about the dismissal of the appeal or special leave to appeal by the Supreme Court.
The Home Minister discusses the matter of convict with his concerned state government after making their comments, the petition is sent back to the president for his decision. The president can either accept or reject the appeal as per the advice by the council of ministry.
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However, the law doesn’t provide any restriction on time to accepting or rejecting the mercy appeals, the president can keep it for a long time if he wishes.
Mohammad Ajmal Amir Kasab, in 2008, the Mumbai attack gunman. Was sentenced to death by the Supreme Court in 2010 but the sentence was executed two years later 21st November 2012 after the rejection of mercy petition by the president.
Curative petition
A curative petition is the last resort to get relief from a sentence. The Supreme Court of Indian involves this concept in Rupa Ashok Hurra v. Ashok Hurra and Anu[22]. In this case, a question was raised whether the petition still has some chances to get any relief after the final decision of the Court.
Then the bench of five-judge of the constitution of the Supreme Court unanimously held that in order to rectify the judgement, the court will allow filing a curative petition.
A curative petition can only be allowed when there is some violation of a legal principle and there were some facts, evidence which was brought in a court but the court was ignored about the same before passing their final judgement. A curative petition is required to be classified by the senior Advocate and then it is given to the three senior-most judges, when a majority of judges agree that the matter needs a hearing again then it would be sent back to the same bench for further hearing. Law doesn’t impose any restriction in time for filing a curative petition and it is clearly said under Article 137 of Indian Constitution.
In the Ranga billa case, the death sentence was confirmed by the Supreme Court and also his petition was rejected by the president. Then, the Convict again files a petition questioning the pardoning power of the president under Article 72 of the Constitution of India. The Supreme Court by rejecting the petition and answering the question, that the term “Pardon” itself states that it is the entirely discretionary remedy and grant or reject of it can’t be a question.
Should death penalty be abolished?
Since a long ago, it was a most controversial topic for discussion even in many news channels we say political leaders debating on this topic and I m sure that more than 50% of them don’t know the law in many debates competition we see the same topics that “should the death penalty be abolished or not”. Through this paper, I want to ask and raise a question that “why we should abolish the death penalty” as it already awarded in the “rarest of rear case” than also people are saying to abolish the death penalty. It creates a fear of death in the heart of criminals as if they committees a wrong act with some they might be punishable with hang till death. Life is the biggest thing for a person. Many criminal moves backwards by the fear of the death penalty if there is a death penalty then there is a huge number of crimes in India.
Amnesty international hold that the death penalty is the breaches of human rights in particular right to life and right to live free from torture[23], so here I want to ask a question do any person has right to touch someone without permission, do any person have right to interfered once life, do the person has right to murder someone, rape someone or they are talking about the rights of convicts did the murder victim doesn’t have right to life or the rape victim doesn’t have right to live a life free from tortures.
With the reference of the case, I want to say that if there are any changes to protect the convict from the death sentence then the government will do it. Still, the death sentence is awarded only on the “rarest of the rear case”.
CONCLUSION
Last but not least, by concluding my topic I only want to say that every coin has two faces. It depends on you which side you like. Similarly, this topic also has two. As per my views, we need both the faces of capital punishment. Yes, I agree that death penalty is the violation of human rights as every person have right to life but I don’t think rapist isn’t human, murderers aren’t human, the person who kills someone in the name of religion aren’t humans they are monsters and law doesn’t provide any rights for the monsters, As every country has its own way to tackle the criminals like in Arabian Countries they believe in an “eye for an eye”.
The government policies relating to the death penalty in India is very flexible there are many loopholes in the Indian law, through thigh paper, I request the government to correct it. As convict have many protections like mercy petition which he files many time law doesn’t impose any restrictions on the number of filing which cause a delay in the death penalty and cost expensive to the government as per the provision of The Prisons act 1894[25]. As per the statistics of NCRB (National Criminal Record Bureau), the average annual expenditure on prison is Rs. 29,583 in 2014-15 and we have a high number of prisons which cost very high. Suppose if the government invests that amount in the economy I think that would be beneficial to us. With this paper, I request the law commission to restrict the time of accepting and rejecting the appeal by the president as law which save a lot of time and money too which we spent on prison . On one way we are talking about equality before the law and we only allow the death penalty to the male convict why not women?
When I was researching on the death penalty and discussing with other then I found that many people say that it is a violation of rights with the reference of many cases supreme court state the validity of Death penalty In Jagmohan Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar Pradesh (1979), and finally in Bachan Singh vs State of Punjab (1980), Supreme Court said that law has provided such punishments with the fair procedure and reasonable one. However, this will award in the “rarest of the rear case” with reasonable reasons.
REFERENCES
- bachan singh case (1980) 2 SCC 684
- https://www.amnesty.org/en/what-we-do/death-penalty/
- www.Indianbarassociation.org
- www.britannica.com
- (1980) 2 SCC 684.
- 1983 AIR 957.
- https://indiankanoon.org/doc/545301/
- Article 21 of the constitution
- Article 14, 15.and 16.
- AIR 1973, SC 947.
- AIR 1979, SC 916.
- 1989) 4 SCC 62.
- 1989) 4 SCC 62.
- Section 302 of IPC
- Section 120 A of IPC.
- Section 120 B of IPC.
- Section 121 of IPC.
- 28(1) CrPC 1973
- Section 369 CrPC 1973
- Section 415(2) of CrPC 1973
- Section 416 of CrPC 1973.
- AIR 2002 SC 1771
- https://www.amnesty.org/en/what-we-do/death-penalty/
- (2014) 3 SCC 1.
- chapter 2
BY- Shivansh Bansal | Teerthanker Mahaveer University, Moradabad