CAPITAL PUNISHMENT IN INDIA (By- Srikar Krishna B R)
CAPITAL
PUNISHMENT IN INDIA
Keywords:-
Punishment – Criminal Procedural Code
– Human Rights – Deterrence – United Nations
Abstract:-
“Life is precious and death is irrevocable”.
Capital punishment is the process of
executing a person involved in criminal activities by the decree of a Court of Law.
It is the highest degree of punishment that can be awarded. The method for the
same used in India is by hanging by the neck. The death penalty is provided
under Section 53 of the IPC, 1860 and the power to confirm the same is
conferred upon the High Courts under Section 368 of the Code of Criminal
Procedure. However, the principle of “Rarest of the Rare” is followed in India.
Between 2002 – 2015, 4 criminals have been executed in India. This is because
of the Judgement passed in Shatrughan Chauhan Vs. Union of India (2014)
provides certain guidelines regarding the conversion of capital punishment into
life imprisonment, which was implemented by the Supreme Court in the popular
case of Rajiv Gandhi assassination. The other side to this coin is that many people
feel this to be inhuman. Even among the legal fraternity, many criminologists
demand the abolition of capital punishment. Studies reveal that the death row
convicts suffer both physical and mental stress awaiting their execution. Many
NGOs are fighting against this punishment and for the protection of human
rights. Even after considering the application of the Rarest of the Rare, the
idea of Capital Punishment itself is against the Constitutional provisions of
Article 21. The main objective of any criminal punishment is the deterrence it
brings about among the public. Unfortunately, statistical evidence does not
show the working of the same which may be due to various mental, social reasons
and also due to the time gap between the crime and the punishment. It is proven
that the effectiveness of deterrence decreases with time. The UN is strictly
against Capital punishment and considers it a violation of Human Rights. The UN
relies upon the Reformative theory instead of that of Deterrence. However,
India has not
completely banned Death Penalty, the
number of executions in the last 20 years are drastically reduced.
Introduction:-
The death penalty, additionally
called capital punishment, execution of a wrongdoer condemned to death after
conviction by a courtroom for a criminal offence. The death penalty ought to be
recognized from extrajudicial executions completed without fair treatment of
law. The term capital punishment is some of the time utilized conversely with
the death penalty, however, the burden of the punishment isn't constantly
trailed by execution (in any event, when it is maintained on offer), due to the
chance of compensation to life imprisonment.[1]
Historical
Background:-
The death penalty is an old
authorization. There is at any cost no country in the world wherecapital
punishment has never existed. History of human civilization uncovers that
during notimeframe, the death penalty has been disposed of as a method of
discipline[2].
The deathpenalty for homicide, treachery, illegal conflagration and assault was
broadly utilized inancient Greece under the laws of Draco (fl. seventh century
BCE), however, Plato contendedthat it ought to be used distinctly for the worse
off. However, the Romans likewise utilized itfor a wide scope of offences, residents
were excluded for a brief time frame during therepublic. This observes support
in the perception made by Sir Henry Marine who expressedthat "The Roman
Republic didn't nullify capital punishment however its non-use wasfundamentally
coordinated by the act of discipline or exile and the methodology of
inquiries".[3]
Cautious investigation of the
discussions in British India's Legislative Assembly uncovers that no issue was
brought about the death penalty up in the Assembly until 1931, in British
India's Legislative Assembly, issue of death penalty was not at all brought up.
Techniques
for Execution in India: -
At the time of independence, India
held a few laws set up by the British government, which incorporated the Code
of Criminal Procedure, 1898 ('Cr.P.C. 1898'), and the Indian Penal Code, 1860
('IPC'). The IPC endorsed six punishments that could be forced under the law,
among which death was also one. For offences where capital punishment was a
choice, Section 367(5) of the CrPC, 1898 expected courts to record reasons
where the court chose not to force a sentence of death, it was given that,
If the accused is convicted of an offence punishable with death, and the
court sentences him to any punishment other than death, the court shall in its
judgment state the reason why the sentence of death was not passed.
In 1955, the Parliament revoked
Section 367(5), CrPC 1898, fundamentally modifying the situation of capital
punishment. Capital punishment was as of now not the standard, and courts
didn't require unique purposes behind why they were not overwhelming capital
punishment in cases where it was an endorsed discipline.
Subsequently, due to the re-enactment
of the CrPC in 1973, certain major changes were made to section 354(3) which
stated that:
When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years,
the judgment shall state the reasons for the sentence awarded, and, in the case
of sentence of death, the special reasons for such sentence[4].
Now, there was a requirement for the
judges to provide specific and precise reasons for the death sentence
sanctioned by them.
Supreme
Court On Validity Of Capital Punishment In India
Article 21 of the Indian Constitution
guarantees the Fundamental Right to life and freedom for all people. It adds
that no individual will be denied of his life or individual freedom aside from
per method set up by law. This has been lawfully interpreted to mean if there
is a method, which is reasonable and legitimate, then, at that point, the state
by outlining a law can deny an individual of
his life. The central government has
reliably kept up by holding the capital punishment in the resolution books to
go about as an obstruction, and for the individuals who are a danger to
society, the Supreme Court also has maintained the protected legitimacy of
capital discipline in "rarest of the rare" cases. In Jagmohan Singh
versus State of Uttar Pradesh (1973), then, at that point, in Rajendra Prasad
versus State of Uttar Pradesh (1979), lastly in Bachan Singh versus Province of
Punjab (1980), the Supreme Court confirmed the sacred legitimacy of the death
punishment. It said that if the death penalty is given in the law and the
methodology is a reasonable, just and sensible one, capital punishment can be
granted to a convict. This will, in any case, just be in the "rarest of
the rare" cases, and the courts should deliver "extraordinary
reasons" while sending an individual to the gallows[5].
Evolution
Of The Alternative Approaches For Death Penalty
Considering the severity of the death
punishment and the issues relating to human rights, the Supreme Court of India
bought into light the idea of a life sentence, which determines a specific
number of years of the sentence. This was formulated by a 3-judge bench in the
case of Swamy Shraddhanand and the
court set up certain guidelines and explained that the matter might be checked
out from a different point of view. These cases have two sides. A sentence
might be unreasonable and unduly cruel or it very well might be exceptionally
excessively deficient. At the point when litigant results in these present
circumstances Court conveying a capital punishment granted by the preliminary
court and affirmed by the High Court, the Supreme Court might find, as in the
current allure, that the case simply misses the mark concerning the rarest of
the rare classification and may feel to some degree hesitant in underwriting
capital punishment. And yet, having respect to the idea of the crime, the Court
may firmly feel that a sentence of life detainment subject to reduction
regularly works out to a term of 14 years would be terribly insufficient. What
then, at that point, should the Court do is that in such case the Court's
choice is restricted uniquely to two punishments, one a sentence of detainment,
in every practical sense, of not over 14 years and the other passing, the Court
might feel enticed and end up going on to support capital punishment. Such a
course would without a doubt be shocking.
The most logical way of dealing with
this issue would be to provide alternatives along with
assuming authority of the actual
courts according to their derived powers. One ex will be dealing with 14 years
imprisonment and death. The court highlighted that the courts would take
response to the extended choice essentially on the grounds that in certain
facts of the case, the sentence of 14 years imprisonment would add up to no
punishment by any means.
The case of Swamy Shraddhanand is a landmark case. In the cases of Haru Ghosh
v. State of West Bengal, State of Uttar Pradesh v. Sanjay Kumar, Sebastian v.
the State of Kerala, Gurvail Singh v. the State of Punjab and various others,
keeping aside the death sentence, the Supreme Court has awarded the life
sentence with a specific number of years.
Clemency
Powers
On the off chance that the Supreme
Court turns down the allure against the death penalty, the person who is
awarded a death sentence can present an appeal to the President of India and
the Governor of the respective State. Under Articles 72 and 161 of the
Constitution, the President and Governors, individually have the power "to
concede pardons, respites, breaks or abatements of discipline or to suspend,
transmit or drive the sentence of any individual indicted for any offense
"[6].
Neither of these powers is sentimentally or emotional to the holders of the
Office, yet are to be carried out (under Articles 74 and 163, separately) on
the guidance and the cumulative decision of the Council of ministers.
Mercy powers, while exercisable for a
wide scope of contemplations and on mutable events, additionally work as the
last shield against the plausibility of legal mistake or unsuccessful process
of equity. This projects a weighty obligation on those employing this power and
requires full utilization of psyche, investigation of legal records, and wide
going requests inarbitrating a mercy appeal, particularly one from a detainee
under a judicially affirmed capital punishment who is on the edge of life and
in line for the execution.
A document is known as the “Procedure
Regarding Petitions for Mercy in Death Sentence Cases” has been drafted by The
Ministry of Home Affairs, Government of India, to provide proper protocol and
guidance to the Jail authorities as well as to the State Governments as to the
proper
way of disposing of a mercy petition
of the inmate who will be executed[7].
Annexure-III provided a detailed explanation of the petitions disposed of by
the President in India.
Judicial
Review Of Exercise Of Mercy Powers
The following have been laid down by
the Home Ministry as the essentials to be looked upon while dealing with such
petitions.
a) Personality of the accused (like
age, sex or mental inadequacy) or conditions of the case (like incitement or
comparable avocation);
b) Cases in which the investigative
Court communicated question regarding the unwavering quality of proof, in any
case, has by and by settled on conviction;
c) Cases where it is affirmed that
new proof is possible fundamentally so as to see regardless of whether the new
enquiry is legitimized;
d) Where the High Court on request
switched quittance or on an allure improved the sentence;
e) Is there any distinction of
assessment in the Bench of High Court Judges requiring reference to a bigger
Bench;
f) Consideration of proof in the
obsession of liability in a posse murder case; g) major postponements in
examination and preliminary and so on
Nonetheless, when the genuine
exercise of the Ministry of Home Affairs (on whose proposals these petitions
are chosen) is dissected, it is seen that on multiple occasions these rules
havenot been followed. The Courts in various cases have analysed the petitions
from an executive point of view and have taken decisions similar to what the
decisions of the executive would be. Indeed, the Supreme Court as a feature of
the cluster case Shatrughan Chauhan case heard 11 writ petitions testing the
dismissal of the leniency appeal by the Executive[8].
Supreme Court, last year held that legal mercy could be allowed on the ground
of exorbitant delay even after such an appeal is
dismissed.
Law
Commission Of India's Report On Death Penalty:-
The Law Commission of India in its
262nd Report (August 2015) suggested that capital punishment be abrogated for
all wrongdoings other than psychological warfare related offences and pursuing
war. Complete proposals of the Report are as per the following:
The Commission suggested that actions
proposed that police changes, witness assurance plans and casualty pay plans
ought to be taken up speedily by the public authority.
Although there is no substantial
penological support for treating psychological warfare in an unexpected way
from different violations, the concern is frequently raised that cancellation
of capital punishment for psychological oppression related offences and taking
up arms, will influence public safety. Notwithstanding, given the worries
raised by the administrators, the Commission didn't perceive any motivationto
stand by any more drawn out to venture out towards cancellation of capital
punishment for all offences other than illegal intimidation related offences.
The Commission as needed is suggested
that capital punishment be cancelled for all violations other than
psychological oppression related offences and taking up arms. Further, the
Commission genuinely trusts that the development towards outright nullification
will be quick and irreversible[9].
Conclusion
India is a country where diversity is
at its peak. Some people feel that if a person kills a person, then the
appropriate punishment for the murderer is taking away his life. But, as human
beings, we have evolved more than that in the past century and the aspect of
human rights has come into play. We have understood the value of life and how
the concept of an eye for an eye may not always be necessary, appropriate
and/or moral. However, there is a difference of opinion between various kinds
of people when it comes to the punishment of capital offenders and hence, the
judiciary has taken a prominent role in deciding the same after considering all
the aspects and after providing the accused all the chances to prove himself in
front of various authorities to reduce his/her death sentence to life
imprisonment.
Prior to giving a decision on whether
or not capital punishment ought to be nullified, many things should be thought
of. In spite of the fact that India has up to now, stood immovably behind
holding the death penalty, the legal executive saves it for the shocking of
wrongdoings and it happens on incredibly uncommon events. In the event that we
consider, the quantity of individuals who were granted capital punishment and
the number of individuals who were really executed, the numbers justify
themselves. Somewhat recently, there have been just 3 executions, and all three
were of fear monger cases. In Bacchan Singh v. The territory of Punjab, the
Hon'ble Supreme Court made unmistakably capital punishment to be granted in the
‘rarest of the rare’ cases which shows the inborn expectation of the court to limit
the act of granting the death penalty however much as could be expected. This
judgment turned into a benchmark for every one of the courts in India on which
they were to base their choices ofgiving death penalties in situations where
the person who received the death sentence had submitted one or more capital
offences i.e., killed another person.
Consequently, not exclusively do the
courts practice their ability to grant the death penalty in very uncommon
cases, yet in addition, a considerable lot of these death penalties are driven
to lifetime detainment on grounds of wellbeing, pregnancy, family conditions,
and so forth At whatever point any court grants a capital punishment, it makes
reference to extraordinary explanations behind giving such discipline
identifying with the uncommon conditions of the case. Is capital punishment
substantial in this day and age? It is up to the Judiciary and legitimate
specialists to choose.
[1]CAPITAL
PUNISHMENT IN INDIA, published by Lok Sabha SECRETARIAT, PARLIAMENT LIBRARY AND
REFERENCE, RESEARCH, DOCUMENTATION AND INFORMATION SERVICE (LARRDIS)
[2]Capital
Punishment by Dr. Subhash C. Gupta, 2000, p. 1
[3]Capital Punishment in India by Dr. Subhash C. Gupta,
2000, p. 1
[4]
Code of Criminal Procedure, 1973
[5]Indian Express, New Delhi, dated 27.5.2015.
[6]Indian Express, New Delhi, dated 27.5.2015
[7]Law
Commission of India, Report No.262 on Death Penalty, August 2015, pp.176, 179
[8]Law Commission of India, Report no.262 on Death
Penalty, August 2015, pp.190-191 10 Indian Express, New Delhi, dated 27.5.2015
[9]Law Commission of India, Report no.262 on Death
Penalty, August 2015, pp.217-218