This article has been written by B.Pooja, a 3rd year student pursuing BA. LLB(Hons) from SRM University.
ABSTRACT
The death penalty is a deeply sensitive issue in India, stirring strong emotions and opinions across the country. For the first time in its history, the Supreme Court of India had set aside the death penalty during the calendar year 2015. The Court thereby conveyed the fact that there have been problems of arbitrariness and discrimination throughout the years. However, the brutal Nirbhaya case saw the introduction of death penalty again and some crimes were punishable by capital punishment all over again in the Indian Criminal Law Amendment Act 2013. The practice, however, has been vociferously objected to and has remained a sore topic for many due to its inability to act as a deterrent and having infringed some of the fundamental human rights. The continuing debate among experts regarding its very relevance in India has further made it a subject of controversy and, while some advocate for its abolition, others demand its retention about heinous crimes.
INTRODUCTION
Capital Punishment more popularly known as the death penalty is a State- Sanctioned practice of killing a person for a crime he committed. Capital Punishment was practiced mostly in ancient Greece. The commonly in use practice back then has popularly been known as the “Guillotine”. China is the country executing most of the prisoners while in India, the death penalty is given only in the rarest of rare cases and otherwise, a life term is awarded. The death penalty is also known as capital crimes or capital felonies. This mainly deals with crimes against the human body such as murder, terrorism, hijacking, and crimes against the state such as treason, sedition, etc. Capital punishment is awarded in more than one form through which execution is carried out such as Hanging, shooting, beheading, stoning, electrocution, etc. Shooting is generally carried out in the Middle East such as UAE, Bahrain, Qatar, etc. The death penalty is only applied in a small number of cases. According to statistics and data, over 14,000 persons have been executed since the colonial period. In the year 1930, a minimum of 150 persons were executed every year. By 2022, the death penalty was retained by 55 countries while 109 countries have altogether abolished it for all crimes and 7 countries have abolished it for ordinary crimes. The Death penalty makes people behave according to the law and not commit any crime Retribution theory focuses on the idea that those who commit wrongful acts should face consequences for their actions. However, the state feels the necessity to inflict pain upon the offender to put an end to revenge. According to this theory, the concept of an eye for an eye and a tooth for a tooth are strictly followed. Otherwise, people consider it a morally wrong practice as it goes against the right of a person to his life and inhuman and degrading nature.
They consider lifetime jail terms worse and cheaper punishment compared to death. Correspondingly, if the murderer is accused of being unscrupulous in his actions and murdering that person too comes under the umbrella of immorality. Various scholars believe that the criminal should be given the chance to redeem himself and show the world that he will not be able to repeat the same crime. The convicted prisoner can seek pardon from the government and authorities. It is Article 72 of the Indian Constitution, which has conferred such powers on the President if a convicted prisoner requires to seek mercy that has to be done before the President only.
HISTORICAL BACKGROUND ON DEATH PENALTY IN INDIA:
The Indian death penalty has had an especially complex historical background influenced by various legal, cultural, and social factors. Let’s take a closer look at how this has evolved over time:
Ancient and Medieval Periods
Vedic Texts and Early Codes:
Laws and punishments in Ancient India are described in the Vedas and subsequent , literature, Manusmriti. The Manusmriti-a literature compiled between 200 BCE to 200 CE said that the crimes of treason, severe theft, or adultery could be punished by capital punishment. The gravity and caste structure of the offender would invariably determine most punishment.
Mauryan Empire:
During the Mauryan Empire (322-185 BCE), the doctrine of justice underwent an alteration considerably that was influenced by Emperor Ashoka, who was non-violent and a follower of Dharma. Though the practice of capital punishment was prevalent at that time, Ashoka’s reign marked a shift towards more humane treatment of offenders.
Medieval Period:
The Mughal Empire allegedly codified laws from 1526 to 1857, although the capital punishment enforced in the period was of a different nature. Emperor Akbar was especially known for reforms. He advocated mercy and fair legal provisions for those accused. However, the crime of murder, robbery, and many more were also punishable by death.
British Colonial Era
Codification of Laws:
“The foundation of India’s legal system was largely shaped during the British colonial period. One notable feature of this system is the introduction of the death penalty, which is detailed in the Indian Penal Code (IPC), drafted by Lord Macaulay as early as 1860.”[1][2] “Section 53 of IPC has defined Death Penalty as a possible sentence for an offense like the act of taking a life or engaging in acts of violence against the government.”[3]
Methods of Execution:
“Hanging was the extensively rehearsed form of Death Penalty during British time.” Public declensions were rehearsed extensively until the late 19th century, with the last public hanging being seen in 1868.”[4]
Debates of Abolition:
During the late 19th and early 20th centuries, there was a growing movement among people to abolish the death penalty. Famous Indian leaders such as Mahatma Gandhi and Rabindranath Tagore believed that capital punishment was morally impossible.
Post-Independence Era
Constitutional Framework:
“Veritably shortly after India attained independence in 1947, the IPC kept up the death penalty.”[5] Though the Constitution of India was laid down in the time 1950 does not produce any statement which says it’s against Death Penalty.”[6] and “the Supreme Court has dissented that Death Penalty should be used only in “the rare cases only”[7][8][9]
Judicial Interpretation:
India’s Supreme Court has been instrumental in shaping the conversation around the death penalty and whether it should be considered an absolute form of punishment. In the significant case of Bachan Singh v. State of Punjab in 1980, the Court held the death penalty to be an exception and dissented that this doctrine would be applied only in rare cases.
Afterward Cases: There were several cases, including Jagmohan Singh v. State of U.P. (1973) and Mithu v. State of Punjab (1983), which adopted the legal principle of capital punishment, and at this point it became emphasized that there must be fair trails and due process.
Death Penalty for Terrorism and Violent Crimes:
Due to the growing violence, especially in the 1980s and 1990s, the legal framework in India went in a way of higher repression. Under the Terrorist and Disruptive Activities (Prevention) Act, 1985, and the Prevention of Terrorism Act, 2002, the Death Penalty was included.
CONTEMPORARY ISSUES CONCERNING DEATH PENALTY IN INDIA:
Public Debate: “The question of the Death Penalty is highly controversial in India.”[10] Debates center on the deterrence value of capital punishment in checking the growth of crime, its supposed immorality, and wrongful miscarriage of Justice”[11]. Highly publicized cases, such as the 2012 Delhi gang rape, outraged public opinion and called for stern sanction that was certain capital punishment.
Recent Judicial Decisions: The Supreme Court has given numerous judgments concerning the imposition of the death penalty. Recently, terrorist attacks and other brutal crimes have brought the subject of the death penalty and its applicability back into the spotlight.
International Perspectives: India is one of the few democracies in which the death penalty is still practiced. Human rights organizations, including Amnesty International, have argued for a moratorium on the practice based on reasons ranging from perceived threats to human rights to the likelihood of miscarriages of justice that may culminate in wrongful executions.
DOCTRINE OF RAREST OF RARE:
The death penalty is a serious and weighty decision that should be reserved for only the most extraordinary situations. This concept was first introduced by the Indian Supreme Court in the case of Bachan Singh v. State of Punjab in 1980.
It asserts that the death penalty is irreversible and should thus be bestowed rarely. It also observes that capital punishment should be granted only when it is impossible to punish the crime with any other system since it is just too enormous for any punishment except death.
The factors that it exercises for the declaration of a case being “rarest of rare” are: How brutal is the crime, the Motive of committing the crime, the Impact of the crime on society, and the Possibilities of reformability with the criminal.
“This principle suggests that while life imprisonment or transportation can be common punishments, the death penalty is reserved for only the most exceptional and shocking cases.”[12][13][14]
Origins of the Doctrine
Constitutional Context: The death penalty in India is regulated by Article 21 of the Constitution, under which the right to life and personal liberty are considered guarantees. The Supreme Court has interpreted this to mean that capital punishment cannot be arbitrary or excessive.
Bachan Singh Case: The Bachan Singh case is a landmark event in Indian legal history, marking a pivotal moment that occurred in 1980. In this landmark decision, the Supreme Court recognized the death penalty as a part of our legal framework but emphasized that it should be applied only in the most exceptional situations. It was demanded that there should exist a judicial standard to distinguish between ordinary murder cases and those particularly heinous ones.
Essentials of the Doctrine
Conditions for “Rarest of Rare”: Capital punishment would be meted out only when the crime was of such a nature that the collective conscience of society was shocked. The various factors that went into forming such a conclusion could include the nature and manner of the commission of the crime and the motive behind it.
Guidelines for Sentencing: The Court decreed there was to be a two-stage sentencing process:
Phase One: Determine the guilt of the accused.
“Phase Two: Evaluate if the case meets the criteria of “rarest of the rare” for determining the appropriate sentence.”[15]
Important Judgments:
“Bachan Singh v. State of Punjab (1980): The Supreme Court used this doctrine and gave a dissenting opinion that the death penalty should be awarded in those rarest of rare cases where the crime is extremely brutal”[16]
“Machhi Singh v. State of Punjab (1983): In this case also, the Supreme Court of India directed the guidelines laid down to determine or find out which case should use this principle to determine Punishment.[17]
Uttar Pradesh v. Rajesh Gautam (2003): The Supreme Court restates the “rarest of rare” test and holds that sheer brutality or depravity alone will not suffice; the crime must also shock the collective conscience of the society.
Implications of the Doctrine
Judicial Discretion:
The doctrine states that judges should use discretion in implementing the death penalty, and so it should not be in routine or arbitrary procedure. It relates to human existence as well as concerns many atrocities.
Public Sentiment: The doctrine links the capital sentence with the social conscience. It illustrates the social sentiment toward the dispensation of justice as well as towards the punishment. The right to retributive justice is considered along with the rights under the Constitution13.
The “rarest of rare” doctrine remains the most controversial debate in law and morality, with abolitionists tagging it as an inappropriate warranty against arbitrariness in sentencing as well as miscarriage of justice.
Thus It provides the much-needed benchmark in Indian jurisprudence regarding capital punishment. The “rarest of rare” doctrine seeks to satisfy concerns that only such serious punishment should be reserved for the most heinous crime, representing the law as well as social values.
[1] https://en.wikipedia.org/wiki/Indian_Penal_Code
[2] https://link.springer.com/content/pdf/10.1057/9780230114388_5.pdf
[3] https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf
[4] https://www.historic-uk.com/HistoryUK/HistoryofBritain/The-Art-of-Hanging
[5] https://en.wikipedia.org/wiki/Capital_punishment_in_India
[6] https://www.amnesty.org/en/wp-content/uploads/2021/07/asa200062008eng.pdf
[7] https://theconversation.com/50-years-after-landmark-death-penalty-case-supreme-courts-ruling-continues-to-guide-execution-debate-189365
[8] https://en.wikipedia.org/wiki/Capital_punishment_in_India
[9] https://academic.oup.com/book/6561/chapter/150522518
[10] https://www.ijfmr.com/papers/2023/4/5525.pdf
[11]https://www.amnesty.org/en/wp-content/uploads/2021/07/asa200072008eng.pdf
[12] https://thelawbrigade.com/wp-content/uploads/2019/06/Kiran-Kale.pdf
[13] https://bnwjournal.com/2020/10/04/principle-of-rarest-of-rare-a-critical-analysis
[14] https://www.legalserviceindia.com/legal/legal/legal/article-17380-the-doctrine-of-rarest-of-rare-a-landmark-in-indian-jurisprudence.html
[15] https://www.mha.gov.in/sites/default/files/2022-08/criminal_justice_system%5B1%5D.pdf
[16] https://blog.ipleaders.in/analysing-the-judgment-of-bachan-singh-v-state-of-punjab-1980
[17] https://www.ylfkashmir.com/Projects/law-journal/critical-analysis-of-the-doctrine-rarest-of-the-rare
