This article has been written by Shalinee Sharma (1st Year law student from Banaras Hindu University)
Table of Contents
Abstract
India is a vast and well-developing country but at the same time crimes, pr offenses are increasing day by day. Despite lots of legislation regarding that to stop and control crime in India, even though offence rates are increasing. The wrongdoer has no fear of any legislation because the punishments are not ample for the crime. The punishment for any severe crime should be severe to reduce the crime rate. Every punishment is made for a common motive to give a penalty to the wrongdoer. There are various types of punishments in India such as capital punishment I.e death penalty, life imprisonment, fine etc. Capital punishment is the most severe form of punishment for a wrongdoer in India. The basic argument for awarding the death penalty is the theory of retributive justice. This theory embarks upon that the wrongdoer must also suffer the same fate. Capital punishment is awarded to create a deterrent effect on society so that the people fear the consequences of the offence. In this research paper, I have discussed the constitutional validity of capital punishment and various case laws, judgements and opinions of the eminent jurist and honourable judges and in the end, I have concluded myself with recommendations regarding the same.
Keywords
Capital punishment, deterrent effect, constitutional validity, retributive justice
Introduction
Capital punishment is commonly known as the ‘death penalty. It is awarded for a severe offence like murder or multiple murders, rate or any such offence that is prescribed by legislation. In India, the motive of providing punishments is based upon two aspects.
The first thing that offender should suffer for the pain and injury that he caused to the victim and another motive is to demoralize others from committing wrong by sanctioning punishments.
The term capital punishment is the most severe form of punishment. It is an integral part of the Indian criminal justice system. The increasing strength of the human rights movement in India. The existence of capital punishment is questioned as immoral. Although it is an odd argument as keeping one person alive at the cost of the lives of numerous members of victims in the society is unbelievable and in fact that morally wrong.
About abolition of capital punishment, questions are raised and debates are raging around the world among the social activists, jurists, judges, lawyers, legal reformers, and administrators. There has been a diverse opinion regarding the death penalty in India as some are in the favor of retention o the punishment while others are in favour of its abolishment.
There are 78 countries in the world that have retained capital punishment in the context that this will be awarded only in the rarest of rare cases and for a special reason. Although it’s not been clarified what constitutes a rarest of rare cases or special reason by the legislature or by Supreme Court yet.
If we see this with respect to rights Article 14 of the Indian Constitution an article from the part of fundamental rights, the right to equality which means that no person shall be discriminated under the discrimination is required to achieve the equality of a particular person this concept creates a dilemma and questioned the validity and constitutionality of capital punishment.
The main objective of this study is
- Study of procedure and method of capital punishment.
- To study its constitutionality and constitutional validity in India.
- There would be a special or reasonable for imposing capital punishment on a particular person.
Historical background
The inception of the Death Penalty can be traced back to Eighteenth Century B.C in the Code of King Hammurabi of Babylon, wherein the death penalty was codified for 25 different crimes. The death penalty can also be outlined in the Draconian Code in Athens, which made the death Penalty compulsory for all the types of crimes committed.
The criminals were made to serve the punishment by such means as burning alive, drowning, beating to Death, impalement, and burning alive. It was in the Tenth Century A.D., that hanging became the customary method of execution in Britain. In the subsequent century under the reign of William the Conqueror, it was not allowed to hang people except during wars. With the passage of time even in Britain started refraining from passing the death sentence.
Countries with no death penalty have a lesser number of murders taking place in comparison to the countries prescribing the death penalty. There has been an increase in the worldwide acceptance of the notion that Death Penalty is inhuman, cruel, and a very degrading punishment. It in its entirety is dangerous and endorses violence, with a failed attempt of delivering public safety or of deterring violent crimes. All the major cultures, religions, and regions have now done away with the death penalty. As per the statistics given by the United Nations, more than 150 countries no longer use it or have abolished it.
What is the rarest of rare case doctrine?
In the Machhi Singh And Others vs State Of Punjab on 20 July, 1983[1] the court considered certain procedures to judge an opinion when a case will fall under the ambit of rarest of rare.
The procedure are given below:
1. Manner of commission of murder – When the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, manner in order to awaken extreme infuriated of the community; for instance,
a. When the victim’s house is set on fire with the intention to burn him alive.
b. When the victim is tortured until he dies.
c. When the body of the victim’s body cut in pieces in a brutal manner.
2. Motive for the commitment of murder – When total Vicious and cruelty are the motive is there; for instance,
a. A hired killer committing murder only for the sake of a money.
b. A cold-blooded murder Encompasses a planning in order to get control to inherit property.
3. Socially hateful nature of the crime – When someone commits a murder of a person belonging to the backward classes.dowry deaths, are also covered in this.
4. Magnitude of the crime – When the nature of the crime is extremely brutal. For instance, in cases of more than one murders.
5. Personality of victim – When thevictim ischild, a woman or person, a public figure, etc.
procedure for the capital punishment which includes:
- After the proceedings in the trial court the judge announce the judgement under sec 235 of CrPC and the court must have to mention the special reason justifying the judgement.
- Then, the case will go to high court for the evidence of the judgement. The high court consider the same or may alter the judgment, or can order a new trail.
- When high court gives the evidence for the judgement also aleave petition could be filed.
- A petition seeking review of a judgment or order passed by the Supreme Court may be filed under article 137 of the Constitution before the Supreme Court within thirty days from the date of thejudgment.
- After the dismissal of special leave petition then the Supreme Court may allow a curative petition to review the judgment.
- Article72 and 161 of the Constitution give the President of India and the Governorthe pardoning powers to remit or commute rulings in certain cases.
The constitutional validity of capital punishment
Jagmohan Singh V. State of U.P[2]. 1973 AIR 947, 1973 SCR (2) 541 was the first case where the question of constitutionality of death penalty came before the Supreme court.The main argument before the Supreme Court was that it was violative of many fundamental rights granted to citizens. Article 14 stating the reason that in two similar cases thepunishment given for murder is life imprisonment and death sentence.
The Supreme court rejecting this argument held that the discretion of awarding death penalty or Awarding life imprisonment. The judges have to check the merits of the case and and the situation of the crime and thus Section 302 of The Indian Penal Code, 1860 was not held as unconstitutional.
Article 21 of the indian Constitution states Protection of Life and Personal Liberty to every people. And No person shall be deprived of his life or personal liberty except according to procedure established by law; it means.
In many countries in world death penalty has been abolished. In India, too there are many social workers including lawyers and Judges who have raised their voice. Prominent judges of Supreme Court Bhagwati J. and Krishna Iyer J., Krishna Iyer J. recently while addressing a Human right organization stated himself in favour of the abolition death sentence.
Justice A.K. Ganguly of the Supreme was also in favour of abolition of death sentence. He said death penalty as , anti-life, undemocratic and irresponsible”.
In case of Jagmohan Singh v. State of Uttar Pradesh, the constitutional validity of death penalty was upheld by the Supreme Court by a unite consensus of the five judges Bench.
In case of Rajender Prasad v. State of Uttar Pradesh[3],1979 AIR 916, 1979 SCR (3) 78 Krishna Iyer J. said that death penalty directly affects theArticle 21 of the Constitution. But it has been provided by law and there is nothing like due law in Article 21. Therefore, it is valid. He further said that the two things must be required to award a death sentence:
· The special reasons should be mentioned for awarding death penalty.
· The death sentence must be awarded only in extraordinary circumstances.
In Bachan Singh v. State of Punjab[4],.AIR 1980 SC 898, In Bachan Singh case Krishna Iyer J and other judges observed that the social, ethical and even spiritual aspect of death penalty while supporting the constitutional validity thereof.
When the death sentence is awarded by a trial court, this must be considered by a High Court to make it final. After the confirmation, the convict can appeal to the Supreme Court. if the Supreme Court refuses to hear the petition, the convict person can file a ‘mercy petition’ before the President of India and the Governor of the State.
Justice Krishna Iyer gave some factors on which the death penaltyshould be systemize.
1. Change is legislative rules and policy towards life and death.
2. Increase awareness or growth for abolition or restricted use of death sentence.
3. Human rights and social justiceare an integral part of theIndian Constitution.
Laws that prove to be violative
Those who are in favor of abolition of capital punishment argue about the violation of fundamental rights I.e Article 21 of Indian constitution right to life. And there are some prominent persons who also argue that the keeping of this punishment in criminal statutes is contradictory to individual’s rights. This can be drawn from that right to life is not an absolute right.
Depriving the individual’s right to life or liberty must be reasonable, fair. There is no any such provisions that describes the procedure that can be considered fair, just and reasonable.So due to lack of provisions, the right to life of a convicted one is in the hands of the court. This lack of an established framework structure proves that the procedure of law is not fair. And thus, it is a clear violation of Article 21 of the Indian Constitution.
Death penalty is strongly opposed as it is violative of the fundamental rights. It has also got recognized by the Universal Declaration of Human Rights. It states that the deliberate killing of a prisoner for punishing and deterrence is a purpose, which can be done in an alternative way. The gravity of the crime doesn’t matter, this cruelty cannot be justified. Considering that life is a fundamental right, the provision of death penalty is nothing but an abuse of our fundamental rights.
Capital punishment must only be awarded in extraordinary circumstances.
In Bachan Singh vs. State of Punjab[5], AIR 1980 SC 898, the five-judge bench of the Supreme Court overruled the previous judgement in Rajendra Prasad with a majority of 4 to 1, with Justice Bhagwati dissenting his opinion at this. It is found that capital punishment cannot be considered unreasonable as an alternative punishment for murder. Therefore, it does not violayive of Articles 14, 19 and 21 of the Constitution of India. It was observed that the “public order” considered clauses (2) to (4) of Article 19 is different from “law and order”. Further, it also articulated that capital punishment should only be awarded in the ‘rarest of rare cases’. The dissenting judgement of Bhagwati J. read that “death penalty does not only violate Articles 14 and 21, but it is also undesirable from several points of view.”
In Machhi Singh vs. State of Punjab,[6] 20 July 1983,In this case, Justice Thakkar, speaking before the Court, and observed that there are five kinds of cases which can be considered as rarest of the rare case and deserve capital punishment. They are:
- The manner of commission of murder: If the murder committed is in an extreme cruel, brutal manner.
- Bad motive: If the murder is done with a motive which depicts depravity.
- Causing social abomination: Murdering a minority, dowry death etc.
- Immensity of crime: If the crime committed is in a large proportion.
The victim’s personality.
Again, in Deena vs. Union of India[7].1983 AIR 1155, 1984 SCR (1) The court held that Section 354(5) of the I.P.C., where hanging as a punishment of execution was prescribed as fair, just and reasonable procedure, well within the meaning of Article 21. Therefore, it is constitutional.
In Sher Singh vs. State of Punjab[8],1983 AIR 465, 1983 SCR (2) 582 Chief Justice Chandrachud held that, as per the decision made in Bachan Singh case, capital punishment is constitutionally valid and permissible. This must be accepted as the law of the land.
Similarly, in Triveniben vs. State of Gujarat[9]1989 AIR 1335, 1989 SCR (1) 509 the Supreme Court clearly stated that, the constitution explicitly does not prohibit capital punishment.
The Application of Test of Rarest of Rare
The application of this principle, iscriticisedby many by declaring that its ambiguous.Justice Bhagwati himself criticised it by saying, “such a criterion would give rise to a greater amount of subjectivity in decision making and would make the decision whether a person shall live or die dependent on the composition of the Bench.” He consider the fact that the life of a convict based upon the minds and the decision of the judge bench is clearly violative of the Fundamental Rights enshrined in Article 14 and 21 of the Indian Constitution.
There is one more argument that the decisions given in regard tothis principle are given arbitrarily.For examples, if a person, suspecting the fidelity of his wife and subsequently killed her, the Supreme Court categorized it as a rarest of rare case and imposing death.The decision in Amruta v. State of Maharashtra[10] AIR 1983 SC 629,case where the court doesn’t impose death even when it has similar facts as the illustration given above.
The court ruled that a cold-blooded and brutal murder of a tender age girl after raped, will certainly fell in the category of rarest of rare.But in Kumudi Lai v. State of U.P “which is also a case of rape and murder of a tender age girl, the court didn’t award death sentence.
In Amrit Singh v. State of Punjab,[11]10 November, 2006 a girl six years of age, was raped. Consequently she died due to excessive bleeding and injuries. The trial and High court convicted the accused under section 302 and sentenced him to death. But the Supreme Court held that the death was not intentional although the rape was brutal.
The strongest criticisms were raised in the dissenting opinions of Bhagwati. J. at death penalty validity. He raised an important point that catrgorizes a crime as “gruesome”, “cold-blooded”, “brutal”, etc. are not clear-cut categories and are not uniform to all judges. Thus, if any one judge considereda fact as relevant, perhaps it it might not relevantto others.
At NLU, Contemplate study with about Sixty Supreme Court former judges, who had adjudicated over 208 death sentence cases, centre released a report over death penalty. The report shows that there is no uniform categorisation or understanding of the requirements of rarest of rare cases doctrine, said by a senior advocate Rebecca John.
The Nirbhaya case (Mukesh & Anr vs State For Nct Of Delhi & Ors on 5 May, 2017) [12]constitutes a c⁶rime which fits into the category of the ‘rarest of the rare’ cases because it violated collective conscience. The death penalty, as an exceptional punishment, follows from the judgment that the case fit the criteria of the ‘rarest of the rare’.
Conclusion
Contemplating over capital punishment has been ramping on for countless years. It is certain that the death penalty is not the best solution for the crimes that are increasing day by day, but at the same time, capital punishment inflicts physiological fear in the minds of criminals. In many countries, this punishment has led to deterring and decreasing the crimes rate and change the minds of future criminals against committing heinous crimes. Death penalty only be given in the rare of the rarest cases after the proper and thorough investigation of the criminal’s offence.
Suggestions
shouldn’t be banned because-.
1) It will vanish the fear from the mind of society leading to more crimes. We should think like criminals first so accordingly me as a criminal, I will have a strong urge to commit a crime and at that time the intensity of fear will be less but then also if there is no capital punishment, I will think like I don’t care about life imprisonment. First of all I am not going to be caught and if I got caught then in jail I will think of various methods to break it or live happily there as I will have a lot of time to think and do.
2) We are a part of a group or society to achieve something. We are not free to harm others as a whole. A society shouldn’t sacrifice due to one person if one person is affecting all the humanity then it is better to remove that particular criminal from the society. (As in case of apples).
3) We can’t say that we don’t have any right to kill a person and only the god has that right. Because god can never be a caption of that particular society we have a freedom to decide whether a criminal should be allowed to live or not.
4) By taking his life not only the society will get rid of him but also many who are going to do the same offence for them it will surely a scary one.
5) Capital punishment should be for severe cases only because in small crimes their is hope for criminals that they can change over a period of time.
References
https://www.indiabix.com/group-discussion/capital-punishment-should-be-banned-or-allowed/
https://www.vedantu.com/english/essay-on-capital-punishment
https://en.m.wikipedia.org/wiki/Capital_punishment_in_India
https://www.legalserviceindia.com/legal/article-726-the-doctrine-of-rarest-of-the-rare.html
https://www.legalserviceindia.com/article/l149-Presidential-Pardon.html
https://byjus.com/free-ias-prep/pardoning-power-president/
http://www.legalservicesindia.com/article/1882/Is-Capital-Punishment-Ethical.html
https://www-lawyersclubindia-com.cdn.ampproject.org/v/s/www.lawyersclubindia.com/amp/articles/constitutional-validity-of-capital-punishment-14273.asp?amp_gsa=1&_js_v=a9&usqp=mq331AQKKAFQArABIIACAw%3D%3D#amp_tf=From%20%251%24s&aoh=16498234034214&referrer=https%3A%2F%2Fwww.google.com
We, the Accused by Ernest Raymond
[1]https://indiankanoon.org/doc/545301/
[2]https://indiankanoon.org/doc/1837051/
[3]https://indiankanoon.org/doc/1309719/
[4]https://blog.ipleaders.in/analysing-the-judgment-of-bachan-singh-v-state-of-punjab-1980/
[5]https://blog.ipleaders.in/analysing-the-judgment-of-bachan-singh-v-state-of-punjab-1980/
[6]https://www.lawyersclubindia.com/judiciary/macchi-singh-v-state-of-punjab-1983-identifying-rarest-of-rare-cases-4832.asp
[7]https://indianexpress.com/article/explained/explained-in-the-supreme-court-some-questions-of-life-and-death/
[8]https://www.casemine.com/judgement/in/56b49488607dba348f00cfdb
[9]https://www.legalserviceindia.com/legal/article-7567-death-penalty-in-india.html#:~:text=State%20of%20Punjab%20and%20Triveniben,does%20not%20prohibit%20death%20penalty.
[10]https://www.lawyerservices.in/Amruta-Versus-State-of-Maharashtra-1983-04-22
[11]http://jajharkhand.in/wp/wp-content/judicial_updates_files/07_Criminal_Law/05_murderculpable_homicide_not_amounting_to_murder/Amrit_Singh_vs_State_Of_Punjab_on_10_November,_2006.PDF
[12]https://www.legalserviceindia.com/legal/article-7659-mukesh-v-s-nct-of-delhi-critical-analysis.html