DEATH PENALTY AND ITS EVOLUTION IN THE INDIAN LEGAL SYSTEM: A CRITICAL STUDY BY - DR. SATYA BRAT
DEATH
PENALTY AND ITS EVOLUTION IN THE INDIAN LEGAL SYSTEM: A CRITICAL STUDY
AUTHORED BY - DR. SATYA BRAT
ASSISTANT PROFESSOR (LAW)
SKJ LAW COLLEGE, MUZAFFARPUR
Abstract
Human life
plays a great role in the society because of its importance where it paves a
way to lot of emotions and attachments in cycle of nature. That may be the reason why human life is
valuable in this everlasting universe and sets humans apart from other living
things. The death penalty may be understood in its most basic form, which is
when the State takes a person's life after due process for a serious crime they
have committed. However, the death sentence is not new in the modern world; it
dates back to an era that seems to have no end. It was used in every human
community throughout the ages. The 21st century has brought forth something
unique in that it freely acknowledges that the death sentence should be
abolished, providing compelling arguments and perspectives as well as specific
guidelines for when it should be applied. The death penalty has become a
contentious subject, with several emerging nations taking a stand on it and
doing away with it. India is a well-known developing nation that has not
succeeded in ending the death penalty, but in the rarest of circumstances has
abolished the death penalty. Even if there are several laws that specify
penalties, the idea of the death penalty is essential to the criminal justice
system. The death penalty has caused a lot of problems for
modern civilization. This article aims to present and expand upon the general
perspective on the death penalty and its evolution in India.
Keywords: Death sentence, India,
Legal system, Humanity, Heinous Crime
Introduction
Criminals do not die by the hands of the law. They die
by the hands of other men.”
Gerorge Bernard Shaw
Since everyone in our society follows the same set of rules and laws, there
is a general sense of harmony. Every nation has laws and constitutions, and
those who disobey them face consequences. Is a crime with a penalty any
offense's penalty is determined by how serious it is. The United States of
America, which moved to outlaw the death sentence, was the first to question
the death penalty's constitutionality. The death penalty is known as capital
punishment in India. The death sentence is allowed under Section 53 of the
Indian Penal Code, 1860. The High Court has the authority to impose the death
penalty under Section 368 of the Code of Criminal Procedure. The death penalty
is used in situations when heinous crimes are committed and the public's
collective conscience is so shocked by the crimes that it expects the court to
execute the offenders. They can remain under the purview of significant
instances.[1] The
idea of substituting life in prison for the death sentence is now being
explored. The death penalty has been postponed for so long that convicted
convicts endure physical and psychological suffering while living in a state of
hopelessness and despair, according to the Supreme Court's repeated rulings.
When the death penalty is applied humanely, the sentence of the prisoner must
be altered to life in prison. In addition to making the death sentence more
effective, new research indicates that postponing the trial of death row
inmates benefits the criminal and his family. It is reported that 371 inmates
in India were awaiting execution as of the end of December 2017. Only four of
the 27-year-old offenders in the 1991 case we're working on received the death
penalty in 13 years. In 13 years, just four prisoners three guilty of terrorist
offences and one who had raped a minor were executed.
According to a 2015 investigation, delays have prevented death row inmates
from receiving their sentences. During the 2018 Supreme Court hearing, two of
the four convicted rapists and murderers had their death sentences maintained.
The decision drew criticism from several organisations. The death penalty has
been abolished in several nations. India has occasionally opposed the United
Nations' proposal to outlaw the death sentence. Every United Nations member
state is free to choose its own laws and standards of punishment. According to
the Supreme Court's ruling, India must restrict the use of the death sentence. Even
eminent academics who advocated for the social contract idea, such as Thomas
Hobbes, John Locke, and Plato, backed and encouraged this kind of punishment
for serious crimes. In the case in question, the idea of punishment underwent a
transformation in society that ultimately resulted in the death penalty, also
known as the capital punishment, being abolished. This controversial topic was
brought to light by renowned criminologist Cess are Beccaria, who persuaded a
large number of people that the death penalty should be abolished on the
grounds that it is inhumane, pointless, and, in legal terms, a public
assassination.
Michigan was the first state to outlaw the death penalty in 1846; Portugal
and Venezuela did the same in 1867. When the United Nations was formulating the
1948 Universal Declaration of Human Rights, they also advocated the abolition
of the death sentence.
INTERNATIONALSCENARIOANDITSPOSITION
The death penalty is a worldwide topic that is significant in international
affairs and is reflected in several national laws around the globe. Several
reasons have been made in favour of the death sentence.
Union of Nations (UN): The United Nations often plays a significant role in defending human rights in this fashion. They acknowledged that every nation must adhere to strict standards of fair trials and that the procedures that are followed must be just, fair, and reasonable. Furthermore, several international accords have stated the significance of human rights in the criminal justice system. A few are listed below:
Article 5 of the Universal Declaration
of Human Rights 1948 provides that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.
•
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) 1966 provides that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Subsequently, the UN made recommendations on when
to use or abolish the death sentence in relation to the preservation of human
rights. Here are some recommendations:
•
In nations that have not yet
abolished the death penalty, it can only be used to the most heinous crimes.
•
Currently in effect laws only
permit the application of the death penalty in cases of grave transgressions.
•
The penalty cannot have any
retroactive effects.
•
Why Death sentences shouldn't
be applied to young people who were under 16 years old when the offence was
committed.
•
Anyone convicted to the death
penalty has the right to appeal to a higher court, and measures should be made
to guarantee that this right is protected; the death penalty cannot be used to
pregnant women, new mothers, or crazy people.
POSITIONANDCONSTITUTIONALVALIDLITYOFDEATHPENALTYIN INDIANSCENARIO
The death penalty has undergone several dimensions of modification,
entailing various types of punishment since the beginning of time. The Indian
Penal Code, 1860 (IPC), which is the public law and substantive criminal law
that defines crimes and specifies punishments, is where the death penalty in
India originated. The death penalty and life in prison are available as
alternate forms of punishment under Section 53 of the Indian Penal Code. As of
right now, India recognises the death penalty as a legitimate punishment.
For major offences, the death penalty has been deemed applicable. The
Indian court asserts this by upholding the country's constitution, which
defines "protection of life and personal liberty" as Article 21. No
one "shall be deprived of his life or personal liberty except as according
to procedure established by law," according to this article. According to
this article, every Indian citizen is guaranteed the right to life. The Indian
Penal Code (IPC) imposes the death penalty as a penalty for a number of acts,
including murder, waging war against the state, aiding and abetting a mutiny,
dacoity with murder, and anti-terrorism. The Indian Constitution allows the
President to dispense the death penalty.[2]
This article comes into picture whenever the subject of the death penalty
or capital punishment comes up. It forces the judges to re-evaluate the case
and force them to consider their options before imposing a death sentence or
other punishment. Additionally, Article 14 of the Constitution states that
"equality before law and equal protection of the laws" means that no
one can face discrimination unless it is necessary to attain equality. The
preamble of the constitution echoes the idea of equality included in Article
14. Therefore, it would appear that a capital sentence is the opposite of a
person's right to life.
It is an unavoidable reality that the Indian Constitution does not
specifically declare the death penalty to be illegal, despite several clauses
implying that the death penalty is permitted within the terms of the document.
Nonetheless, a number of clauses in the constitution, including the preamble,
the Fundamental Rights, and the Directive Principles, might be used to argue
against the legitimacy of the death penalty.[3] It is
evident that the death penalty was only applied to a small number of dangerous
criminals. This implies that a person's life may end at any moment following
the death of another person or the commission of another grave crime. The main
point of contention is that everyone has an inalienable right to life, which no
one may violate unless doing so would require sacrificing their own life. Many
academics and legal professionals contend that it is against an individual's
right to life for Indian criminal legislation to even maintain the death
sentence. It is argued that these knowledgeable jurists most likely ignore the
reality that not even the right to life is unalienable.
Although the Indian Penal Code's provision for the death penalty has been
challenged on several occasions, the Supreme Court has always maintained that
the death penalty is constitutionally permissible. There were several reasons
both in support of and against the death penalty. Additionally, the
constitutionality of the death penalty may be taken into account from two
different angles. First, the issue is whether the death penalty in general is
unlawful and should never be applied. Stated differently, the question is
whether or not there is a mechanism that prohibits the imposition of the death
penalty for any kind of conduct.
Secondly, although the death penalty in and of itself might not be
unconstitutional, the question is whether the death penalty as it is stipulated
in different sections of the Indian Penal Code is unconstitutional because
those sections violate specific provisions of the constitution. To have a
comprehensive understanding of the topic at hand, these two parts of the
situation might need to be taken into consideration independently.
(i) Constitutionality of capital punishment as such.
(ii) Constitutionality of the provisions of I.P.C providing for capital punishment.
DISSCUSSIONOFLANDMARKCASESDEALINGWITHDEATHPENALTY
ININDIA
Examining whether the death penalty or the death sentence is
constitutionally permissible is a crucial consideration for the criminal
justice system. The majority of India's historic cases concern both the
legitimacy of the death penalty and its application. When debating the matter,
the idea of RAREST OF RARE CASE also became relevant.
The first case addressing the constitutional legality of the death penalty
in India was Jagmohan Singh v. State of Uttar Pradesh[4]. In
this case, the appellant's counsel presented three arguments that invalidate
section 302 of the IPC. The appeals council also argued that the death penalty
violates all of the rights guaranteed by Article 19 (1) of the Constitution,
and the court upheld their arguments. The second point put out was that there
was no set criteria or policy that guided the discretion used to determine
which cases should result in the death penalty. Thirdly, it was claimed that
Article 14 of the constitution, which protects equality before the law, was
broken by this unrestrained and unguided discretion. It was said that in
several instances, two people who had committed murder ended up with one
receiving the death penalty and the other receiving life in jail. Additionally,
it was argued that the death sentence contradicts the Constitution's articles
19 and 21 in addition to article 14. The reason the method is unclear in this
situation is that, once the accused is found guilty, there is no legal process
in place to decide whether the death penalty or some other less severe
punishment is suitable in that specific instance.
However, the Supreme Court disregarded this argument, ruling that "the
court always gives the accused a chance to address the court on the question of
death penalty in important cases like murder." The Court also ruled that
"deprivation of life is constitutionally permissible as long as it is
carried out in accordance with the legal process." In and of itself, the
death penalty is neither irrational nor opposed to the general welfare. The
difficulties of setting criteria is the root of the legal doctrine that grants
judges extremely broad discretion when it comes to punishment. It would be
difficult to try to establish guidelines for why punishment should be increased
in certain situations and decreased in others. The same holds true for the
penalties imposed for other Code violations and murder, which is penalised by
section 302 I.P.C. There isn't a formula that could offer a rational standard
for the countless situations that might alter how serious a murderous offence
is. The fundamental basis of the criminal law as "applied in India which
invests the Judges with a very wide discretion in the matter of fixing the
degree of punishment" is the inability of setting standards.
However, the situation in Rajendra Prasad v. State of Uttar Pradesh[5]changed
in contrast. According to Justice Krishna Iyer, the courts have not given much
thought to the humanistic mandate of the Indian Constitution, which is crucial
to the penal code's punitive approach in this "life or death"
situation when people are subject to the law. Our judgement primarily focuses
on this striking human rights discrepancy. Section 302 of the Indian Penal Code
and Section 354(3) of the Code of Criminal Procedure must be read in the
context of the human rights of Parts III and IV, as further elucidated by the
Preamble to the Constitution. This is case law within the confines of the Penal
Code, which is impregnated by the Constitution.
Furthermore, he maintained that until it could be demonstrated that the
offender posed a threat to society, the death penalty would not be appropriate.
Furthermore, it was decided that granting the judge authority under section
354(3) of the Cr.P.C. to choose between a life sentence and the death penalty
for "special reasons" would violate Article 14, which forbids
arbitrariness. He begged that the death penalty be abolished and kept
exclusively as a form of punishment for "white collar offences". It
is argued that the minority ruling is accurate since, following the I.P.C.
amendment and the ruling in Jag Mohan Singh's case, life in prison is now the
norm rather than the death penalty. The judges have the authority to select
between the two penalties at their discretion.
LAW COMMISSION REPORT
When it comes to discussing the significant rulings on the death sentence
in India, the Law Commission Report is an essential and indispensable element.
Its debate centres on the legitimacy of the death penalty, a point of
contention that the judges in the Jagmohan case also emphasised. In 1967, the
Law Commission of India issued and presented its 36th Report to the Government
following a thorough and in-depth investigation of the topic of the death
sentence in India. The decision to apply the death sentence or capital
punishment is based on weighing the pros and cons of each side. Arguments must
be presented fairly, rationally, and with sufficient weight. The strength of
many of the arguments varies from case to case and is difficult to rule out in
all circumstances. The severity of the death penalty, the necessity for a
contemporary strategy, and the strong sentiment expressed by some segments of
the population over more fundamental issues of human values.
Considering the current state of affairs in India, the diverse social
upbringing of its citizens, the differences in moral and educational standards
across the nation, the size and diversity of the country, and the critical need
to preserve law and order at this time, India cannot afford to take a chance on
the experiment of abolishing the death penalty.
The second most significant ruling in the historic case of Ediga Anamma v. State of Andhra Pradesh V.R. Krishna Iyer and R.S. Sarkaria[6], replaced the death penalty with life in prison in addition to a twelve-year moratorium on hanging. The personal grounds for the substitution included youth, imbalance, sex, and being kicked out of her marriage.
CONCEPTOFRARESTOFRARE
One of the most significant instances that raise the legitimacy of the
death penalty is Bachan Singh v. State of Punjab[7],
which gave rise to the idea of the "rarest of rare cases." This
particular case gave rise to the concept of the "rarest of the rare
cases" and continues to spark discussion on whether the death penalty is
still permissible under Article 21 of the Constitution. While upholding the
death sentence, the Supreme Court stated that it is incompatible with a genuine
and unwavering respect for human life to take a life via the use of the legal
system.
Judges have long wondered whether and under what conditions the death
sentence may be used, what crimes are punishable by it, how much of an impact
it has on sentencing, and other related questions justice in the victim's case.
It was also established that the Court must give equal weight to the criminal
and the offence when determining whether or not there are "special
reasons" in a given case. Investigating the aggravating or mitigating
variables is necessary. When determining the appropriate penalty, factors such
as the accused's age, mental state, and whether or not the conduct was carried
out at the behest of a superior must be taken into account. In this case,
Justice Bhagwati was the only one to disagree, but the problem was that his
ruling was rendered just two full years after the verdict was rendered. Thus, a
few of his most important objections to the death sentence were never raised.
Furthermore, he felt that Article 14, which protects equality before the law,
is plainly broken by this very idea. Furthermore, it is against Articles 19 and
21 since there is no established procedure for when the state may take away
someone's life or personal freedoms. In addition to discussing the cruelty and
irresponsibility associated with the death sentence, Justice Bhagwati
demonstrates via reason and statistical evidence why the death penalty is
ineffective in achieving any of penological goals.
In the case of Mithu v. State of Punjab[8], the
mandatory death penalty under Section 303 was ruled to be illegal due to
constitutional violations. The reasoning for this provision was that a person
who has been convicted of a life sentence and is still capable of killing
someone is too cold-blooded and unreformed to be let to live. Since Section 303
was deemed to have violated Articles 14 and 21 of our Constitution by the
courts in Mithu's case, it was removed from the IPC.
Additionally in the cases of Sher Singh v. Punjab[9] and
T.V.Vatheeswaram v. State of Tamil Nadu[10]. The
Supreme Court had to decide whether a protracted delay in carrying out the
death penalty was sufficient justification for commuting it to life in prison.
The majority in the second judgement disagreed with the first, which
established that the prisoner had sufficient grounds to use section 21 and get
a lighter sentence in such a circumstance.
Four men were given the death penalty in the Macchi Singh v. State of
Punjab[11]case by
both the sessions court and the high court for killing seventeen people—men,
women, and childrenat their houses throughout the night in five different
occurrences. A family dispute was the driving force. Three of the four people's
death sentences were affirmed by the Supreme Court. Speaking for the court,
Justice Thakkar felt compelled to try to define the "rarest of rare"
case and determine punishment in order to further clarify the "rarest of
the rare rule," which describes circumstances in which the imposition of
the death penalty might be appropriate. Judge M.P.
Thakkar made the following points:
ü Manner of Commission of Murder
ü Motive for the commission of murder
ü Nature of crime
ü Magnitude of crime
ü The personality victim of the murder
CONCLUSION
The use of the death penalty has always raised ethical and societal
questions across the globe. Execution is not only a punishment; it is more than
that since, in accordance with the principles of human rights, it is immoral
and shows a lack of regard for human life. Execution is the process of
murdering someone who is accused of a horrible crime in the name of justice.
Furthermore, refusing to execute a criminal does not imply that the person is
endorsing the offender. The Indian Constitution, as well as various other
national constitutions, recognizes the validity of the death penalty and
guarantees the right to life and human dignity. Even though India is a
participating member of the UN and supports its elimination, the death penalty
is still permitted under our national laws. This is due to the terrible
conditions and circumstances surrounding crime in today's world; two of the
most notorious incidents to date are the gang rape cases in Hyderabad and
Delhi. As a result, society wants justice to be just as harsh as the crime
committed. This is the reason India continues to apply the death sentence. However,
we must recognise that even if the death sentence is a severe punishment.
Everyone should always remember that "No one has the right to take
away one's life" unless it is required by law. Current events and problems
with the death sentence are mostly the consequence of a failure to consider the
nature of crime. The subject of whether the death penalty is still necessary is
raised. The death penalty has been abolished in the majority of nations; yet,
it should be emphasised that in today's society, when every individual stands
for himself, the death sentence is still necessary. Severe punishment is
necessary to deter potential offenders and to guarantee that the peace,
tranquilly, and order of society are not jeopardised. For the sake of one prisoner
who doesn't even deserve to exist in a society of civilised people, the State
cannot jeopardise the lives of hundreds of thousands of innocent people. The
death penalty must thus remain in place.
REFERENCES
BOOKS
·
Ghosh,
S.K., The Traffic In Narcotics & Drug addiction (New Dehli,1987)
·
K.D.
Gaur, Textbook on the Indian Penal Code, 4 th Edition, Universal Publication.
·
Kumar,
K., Narcotic Drugs & Psychotropic Substance Act, 1985 (Lucknow, 1988).
·
Saini
Kamal, Police Investigation, (Deep & Deep Publicatiions) Pvt. Ltd. 2001.
·
Siddiqui
Ahmed, Criminology: Problems and Perspectives. (4th ed., Eastern Book Company,
Lucknow, 1997).
·
Sutherland,
Edwin H. and Cressey, Donald, R., Principles of Criminology (6th ed., The Time
of India Press, Bombay, 1968)
·
Smith
& Hogan, Criminal Law, 10th Edition, 2002 Butterwoths Publication
·
Verma
S.K., Legal Framework for Health care in India, LoxisNexiaButterworths
Publication, 2002.
ARTICLES
·
ArunBeriwal,
Capital Punishment: A matter of Prudence, Not of Law. (1998) Cr.L.J. (Sept.)
·
D.P.
Das, Discretion in the Sentencing Process : Case studies under the Indian
Criminal Justice System Cr.L.J. July (1996) p.65
·
Dr.
K.S. Chhabra, quantum of punishment in criminal Law in India. p. 104-06
·
Dr.Mool
Singh, Death Sentence – Rethinking in terms of its abolition, 1989 Cr.L.J. p.
126
·
Death
sentence – constitutionality and sentencing By: P.K. Srivastava H.J.S.,
Additional Director, UTR U.P. Lucknow
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