Introduction
Death penalty is a practice that has been prevailing for a long time and still does. The practice has been long debated for whether it should be continued or be abolished. In India, capital punishment is awarded to a person who committed an offence of such a heinous nature that can only be seen in the rarest of rare cases. Rarest of rare circumstances depend upon the facts and circumstances of each case. Many other countries have abolished this practice but India plans to continue it while some others have kept this practice for exceptional cases or where it becomes really important to subject the offender to capital punishment. These crimes can range from waging a war against the Government of India,rape, honour killings, and even large scale narcotics trafficking.
Shift in the Theory
The Retributive theory has taken a shift to the Reformative theory. The state now doesn’t believe in punishing the offender or confining him to prison; rather it believes in transforming the offender into a law-abiding citizen. In earlier times, an eye for an eye was the concept that prevailed but now the stances have changed. Death penalty is not considered as an appropriate measure as it was in the earlier times. In India, the process of death penalty is carried out by either hanging the person by the neck until he loses his breath and in certain spheres of forces like the Navy and the Army, shooting to the gunpoint is also permitted. Both these methods have been seen as the most effective for carrying out the process of capital punishment.
Statutory Mandates
It becomes evident to mention that the year after 1947, India carried out its first death penalty in the case of the assassination of Mahatma Gandhi and that was of Nathuram Godse and Narayan Apte. The Indian Penal Code enumerates a list of crimes that are subject to capital punishment. The list includes various crimes namely:-
- Aggravated murder
- Terrorism resulting in death
- Other offences resulting in death
- Kidnapping not resulting in death
- Rape not resulting in death
- Drug trafficking not resulting in death
- Treason
- Espionage
- Military brutality by police while exercising the power to encounter killings
Some Precedents
The fact that death penalty can be given in rare of rarest cases has been pronounced in various judgments, namely in Bacchan Singh vs. State of Punjab[1],Jagmohan Singh vs. State of Uttar Pradesh[2], and Rajendra Prasad vs. State of Uttar Pradesh.[3]
Other Legislations
Other legislations also mark for capital punishment in certain cases. For example, the practice of Sati, if abetted,was also punishable with death. If a person is convicted for a false witness against a person belonging from a Scheduled Caste or Scheduled Tribe, he shall be subject to capital punishment.
Theprovisions are well-founded in the Code of Criminal Procedure when the death sentence becomes subject to confirmation by the High Court. Chapter-28 specifically deals with this. Although these provisions are well protected under various statutes, the protection guaranteed under Article 21 of the Constitution of India can’t be avoided. It clearly says that a person can’t be deprived of his life except by procedure established by the law. He has a right to a fair trial and all the other provisions which protect this right. A mistake if happen in this respect a person might lose his life. A person has a right to die in peace. That is one reason there is always a gap between the passing of the death sentences and the execution of them. Article 72 clause 1 grants the power to the President to pardon reprieve, respite or remit the punishment or to suspend, remit or commute the sentence of any person convicted of any offence which is punishable with the death sentence. The death penalty is a constitutional concept as the rule was laid down in Mithu vs. State of Punjab[4]. However, it should not be construed that death penalty is mandatory.
Balance of Convenience
Whether the practice should be abolished or not will depend on whether a balance of convenience is drawn between the positives and the negatives of abolishing the practice.
Let consider some arguments supporting the abolition of capital punishment. There will be no fear in the society.Absence of the fear of death will hamper with the security of the citizens. It has become very easy to get released on bail, parole, or probation due to the corruption and bribery present in our country.All this cannot balance out the purpose that punishment serves. It gives a chance to a person to reform. The mental agony suffered by a person in the present can’t be measured by a one -time sentence for death. The mental satisfaction for the person who put him behind bars is different in every aspect. As we saw that criminals will be detrimental to society but life imprisonment also serves that purpose. The crime rate doesn’t tend to decrease whether we impose a death sentence or not. The nature of the death sentence is irreversible. And it has been brought out that many times innocent are subject to capital punishment. It is considered as revengeful practice in the society. The poorest section of the society suffers more by the way of such practices. In the light of inequality and discrimination, inherent parts of a country the weaker suffers more. The punishment though guided by the principles of rare of rarest cases still it is the judge who decides the aspect. There are a lot of chances that what appears to be rare for one person might not appear rare for others. It acts as a deterrent to the democratic aspect of a country. The cost involved in executing a death sentence seems to be more than maintaining a criminal in life imprisonment.
Mercy Petitions
The concept of mercy petitions has evolved over the years. Just like we saw in the infamous Delhi gang-rape case of 2012, the convicts raised the mercy please but it got rejected. Why? Because the court felt that such crimes should be subject to capital punishment.They do fall under the category of rarest of rare cases. The brutality of the crime was beyond human imagination. These kinds of crimes make us believe that the need for capital punishment cannot be underestimated. We also have to consider that hardened criminals lack the will to reform. Despite the loopholes in the judiciary system, the court is empowered and becomes compelled in cases like these to do justice and the imposition of capital punishment is deemed right in cases like these.
Conclusion
India is in no position to abolish the practice of the death penalty. In my opinion, it shouldn’t even do that. This experiment can prove to be fatal and dangerous. There are a lot of ethical questions involved. The human tendency of a person cannot be determined beforehand. A person who has the capacity or the capability of committing murder, rape, or other heinous crimes; all the law provides for is life imprisonment but the question is does he have a right to live in the society? The probability of him being dangerous to society is much more than that chances of him reforming into a law-abiding citizen. Various legislations have been amended and the lawmakers have taken stringent and constant steps towards imposing the death penalty in certain cases. The concept has its own significance and it can’t be and even shouldn’t be standing as abolished. Despite the recommendations of the Law Commission, the practice still prolongs and it doesn’t stand to be abolished as of today.
By-
Vanshika Garg
(Amity Law School, Noida)
[1](1980) 2 SCC 684
[2] 1973 SCR (2) 541
[3]1973 1 SCC 20
[4][1980] 2 S.C.C. 684
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