India is a nation that comprises of a huge number of wrongdoings and criminals. In India, all punishments depend on the intention to give punishment for the wrongdoer. There are two primary explanations behind imposing the punishment, one is the wrongdoer must suffer and another one is that giving punishment to wrongdoers demotivates others who are like-minded as the wrongdoer. There are many types of punishments in India depending on the offence, for example, capital punishment, detainment, life imprisonment, imprisonment with fine, fine, etc. In this article, the analyst mainly focuses on the death penalty or capital punishment.
The death penalty is one of the significant parts of the Indian criminal justice system. Wrongdoings which bring about capital punishment are known as capital crimes or capital offences. The term capital punishment came from the Latin word ‘capitalis’ which signifies ‘regarding the head’. The term capital punishment is otherwise called the death penalty. Capital Punishment is a process by which an individual is killed by the State for committing a criminal offence.
The death penalty has been granted for the most heinous offences against humankind. Death punishment changes with the place, from State to State, and nation to nation. There are several human right movements which argue that Capital Punishment is immoral. The Human Rights Organization has contended that the death penalty influences the individual’s rights. In jurisprudence, criminology and punishment, the death penalty implies a sentence of death. Indian criminal jurisprudence depends on the mixture of two theories. The Constitution too offers powers to the President and the Governor to suspend or pardon capital punishment.
In India, Capital Punishment is granted for the most serious and heinous offences. The death penalty is given for murder, robbery with murder, waging war against the legislature and abetting mutiny, etc. Capital punishment is given just when the Court concludes that life imprisonment is not sufficient, given the circumstance of the case.
The death penalty is an ancient authorization. There is essentially no nation in the world where capital punishment has never existed. History of human development uncovers that during no timeframe has the death penalty been disposed of as a method of punishment. The death penalty for murder, conspiracy, illegal conflagration and assault or rape was broadly utilized in antiquated Greece under the laws of Draco.
However, Plato contended that it ought to be utilized distinctly for the hopeless. The Romans likewise utilized it for a wide scope of offences; however, residents were excluded for a brief timeframe during the Republic. This discovers uphold in the perception made by Sir Henry Marine who expressed that the Roman Republic didn’t declare capital punishment as void however it wasn’t used so it was principally coordinated by the act of punishment or exile and the methodology of questions.
Evolution of Capital Punishment In India
India enacted the Indian Penal Code in 1861, which accommodated capital punishment for murder. Abolishing capital punishment was communicated by a few individuals from the Constituent Assembly during the drafting of the Indian Constitution somewhere in the years of 1947 and 1949, yet no such provision was incorporated in the Constitution. In the following twenty years, in order to abolish capital punishment, private members; Bills were presented in both Lok Sabha and Rajya Sabha, yet none of them were adopted.
It was assessed that somewhere between 1950 and 1980, there were 3000 to 4000 executions. It is harder to quantify the number of individuals condemned to death and executed between 1980 and the mid-1990s. It is assessed that a few people were hanged every year. In the 1980 Bachan Singh judgment, the Supreme Court decided that capital punishment should just be utilized in the rarest of rare cases, yet it isn’t clear what characterizes the term ‘rarest of the rare.’
Capital Punishment: The Current Status
Supreme Court on the Status Of Capital Punishment In India
Article 21 of the Indian Constitution guarantees the Fundamental Right to Life and Liberty for all people. It includes that no individual will be denied of his life or individual freedom aside from as indicated by the system built up by law. This has been legitimately interpreted to mean if there is a law, which is reasonable and substantial, at that point the State by confining to the law can deny an individual of his life. While the Central Government has reliably kept up it would keep capital punishment in the law books to go about as an impediment, and for the individuals who are a danger to society, the Supreme Court also has maintained the protected legitimacy of capital punishment in the rarest of rare cases.
In Jagmohan Singh v. State of Uttar Pradesh, in Rajendra Prasad v. State of Uttar Pradesh and lastly, in Bachan Singh v. State of Punjab, the Supreme Court confirmed the established legitimacy of the death punishment. It is said that if the death penalty is given in the law and the system is a reasonable, just and sensible one, capital punishment can be granted to a convict. This will, nonetheless, just be in the rarest of rare cases, and the courts should deliver “unique reasons” while sending an individual to the scaffold.
In Jagmohan v. State of U.P., the Supreme Court held that Articles 14, 19, and 21 didn’t disregard capital punishment. The appointed authority was said to settle on the decision between capital punishment and life detainment dependent on conditions, facts, and the idea of the wrongdoing recorded during the trial. The decision to grant capital punishment was made following the method set down by law as required by Article 21.
In the case of Rajendra Prasad v. State of U.P., the Judge held that except in cases where it was demonstrated that the criminal was risky to the society, the death penalty would not be justified. The educated Judge argued that capital punishment should be abolished and said that it ought to be held uniquely for white-collar crimes. It was likewise held that capital punishment for the offence of murder granted according to Section 302 of IPC didn’t abuse the Constitution’s basic feature.
Further, in Bachan Singh, v. State of Punjab, it was clarified that, as per an equitable and reasonable method set by law, the Constitutional Bench of the Supreme Court has perceived Article 21 to be inclusive of the State’s right to deny an individual of his life. Also, there was no infringement of the essential character of the Constitution by capital punishment for the murder offence allowed under Section 302 of IPC.
Criminological Approach Of Capital Punishment In India
There are two types of theories of Punishment which are generally followed in the concept of the death penalty-
Reformative Theory ‘An eye for an eye would turn the entire world blind‘ is a very famous quotation by Mahatma Gandhi. This line is the basis of the reformative theory. All theories depend on the rule to change the offender. The primary target of all the theories is to change the convicted through individual treatment. The principle point of the reformative theory is to change the individual. An offender is punished for their betterment. This hypothesis has been upheld from different sides. Reformative theory is to uphold criminology. Criminology says each wrongdoing is an unhealthy phenomenon, a mellow type of madness. Criminal anthropology, criminal sociology, and psychoanalysis uphold the Reformative theory. This theory expects to address the criminal minds decently such that they can lead a day to day existence like a typical resident. This theory scrutinizes all sorts of corporal punishment.
Preventive Theory ‘Prevention is always better than cure‘. The primary point of this preventive theory is to get the criminal far from the general public. As per the preventive theory, the principle point of punishment is to set a model for other people and prevent them from committing crimes. In this theory, the wrongdoers are punished with death punishment, life detainment, etc. The preventive theory was upheld by many law reformers because the preventive hypothesis has to humanize penal law. Many reformers observed that preventive theory has a genuine impact on wrongdoers. The primary reason for preventive theory is to make strides that the blamed individual doesn’t repeat the wrongdoing. This theory clarifies that capital punishment is the most extreme type of punishment. A man has ended the life of another man and so he is capable to be denied of his life. In India, the preventive theory is followed.
Methods Of Execution Of Capital Punishment In India
India, the death penalty is executed by hanging or shooting.
Hanging All death penalty in India is actualized by hanging. After Independence, in Mahatma Gandhi’s case, Godse was the primary individual to be executed by the death penalty in India. The Apex Court of India proposed that the death penalty must be awarded uniquely to the rarest of rare cases in India.
Shooting In India, the Army Act and Air Force Act likewise give usage of the death penalty. In the Air Force Act, 1950, Section 34 permits the Court military to push capital punishment for the unlawful demonstration referenced in Section 34(a) to (o) of The Air Force Act, 1950. In India, the legislature generally utilizes the hanging technique to execute the death penalty.
Article 21 of the Constitution ensures the privilege of life and individual liberty to all, including the option to live with human pride. The State may remove or abbreviate this Right for the sake of law and public order but only by following the due procedure of law. In any case, it must be ‘fair treatment‘ as held in Maneka Gandhi v. Union of India. It should be reasonable and sensible. Our protected rule can be expressed as follows-
Capital punishment ought to be utilized only in most extraordinary of cases.
Capital punishment can be condemned and ought to be treated as an exceptional punishment on extraordinary grounds.
The accused will have the right to be heard.
In the light of individual circumstances, the sentence ought to be individualized.
In cases where capital punishment is affirmed by the High Court, Under Article 136 of the Constitution and Section 379 of the Code of Criminal Procedure, there is an option to appeal to the Supreme Court.
The accused may pray for forgiveness or commutation of sentence under Sections 433 and 434 of the Cr.P.C. Furthermore, the President or the Governors under Articles 72 and 161 contain, aside from the legal force, optional power for the to meddle with the benefits of the issue; notwithstanding, there is a restricted expert for legal specialists to survey it and it must guarantee that the President or the Governor has every significant record and material before them. Notwithstanding, the pith of the Governor’s capacity ought not to lay on race, religion, position, or political affiliations, however on a standard of law and rational issues.
As per Articles 21 and 22 of the Constitution, the accused has the option to a brief and reasonable trial.
The accused should not be tormented or tortured under Articles 21 and 22.
Under Articles 21 and 19 of the Constitution, the accused has the right to freedom and expression.
The accused has the right to be represented by appropriately qualified appointed legal counsellors.
Different Types Of Death Penalty Crimes
The wrongdoings and offences which are punishable with the punishment of death are:
Aggravated Murder Murder is deserving of the death penalty as per Section 302 of the Indian Penal Code, 1860. In Bachan Singh v. State of Punjab, the Supreme Court of India held that capital punishment is sacred just when applied as a remarkable punishment in the ‘rarest of rare cases‘. In the Indian Penal Code, capital punishment is given to an individual who murders during an armed robbery. The abduction of the victim for the cash is punishable with capital punishment if the victim is murdered. Organized wrongdoing inclusion, on the off chance that it prompts death, is deserving of death. Committing or assisting with committing Sati to someone else is likewise deserving of capital punishment. Terrorism related offences not bringing about death The utilization of any extraordinary classification of explosives to cause a blast that could imperil life or cause serious harm to property is deserving of capital punishment.
Assault or Rape not bringing about death An individual who incurs injury in a rape that brings about death or is left in a persevering vegetative state might be rebuffed with death under the Criminal Law Act, 2013. Assaults are punishable with capital punishments. These progressions were forced after the case of clinical understudy Jyoti Singh Pandey’s assault and death in New Delhi in 2012.
Kidnapping not bringing about death According to Section 364A of the Indian Penal Code, 1860, kidnapping not bringing about death is an offence deserving of death. In case any individual confines anyone and takes steps to execute him or damage him during which the criminal’s demonstration brought about the demise of the person in question, he/she will be at risk under this Section.
Drug Trafficking not bringing about death If an individual is convicted for a commission or attempt to commit, abet, or financing conspiracy to carry out any of the scopes of dealing offences, or financing of particular kinds and measures of narcotic and psychotropic substances, the person can be condemned to death.
Treason Capital punishment is given to any individual who is pursuing or attempting to wage war against the legislature and helping Navy, Army, or Air Force officials, fighters, or individuals to commit a mutiny.
Military Offence not bringing about death Abetment of attack, insurrection, or endeavouring to tempt an army, navy or air force officer from his obligation, and different offences are deserving of death whenever committed by an individual from the Army or Navy or Air Force.
Different Offences not bringing about death In cases where an individual is involved with criminal intention to carry out a heinous crime, the offence is deserving of death. Endeavours to murder those condemned to life detainment are deserving of death if the victim is hurt by the endeavour. If an individual furnishes false evidence with the information that it can prompt the conviction of an individual who belongs to SC or ST for committing a capital offence based on such proof, will be punished with capital punishment on the off chance that it brings about the conviction and execution of an innocent individual.
At a point when capital punishment is granted to the accused, it is more than simply a punishment; we are finishing or murdering an individual in the name of equity and law. Murdering an individual is unethical as it exhibits the absence of regard towards human life. Restricting capital punishment doesn’t imply that somebody is supporting the lawbreaker. At the point when capital punishment is granted, it dispenses with the extent of progress which could have changed the life of a person; this is the reason why popular Governments around the globe are supporting the reformative theory of punishment as against the deterrent theory of punishment. Indeed, even the most abhorrent criminal stays a human being equipped with regular human pride. As a result, one should regard all individuals.
We are nobody to choose who gets to live and who gets the chance to die based on rules and guidelines which we ourselves have made for our own selves. It cannot be denied that a criminal should be punished for the wrongdoings he has committed; however, we should focus on finishing off the crime and not the criminal.
This is the fundamental distinction between people and creatures. We are given a valuable blessing – we are a human, and murdering another person misrepresents the simple reason of being a person. We consider ourselves a ‘socialized Society‘; however, we execute another person for the sake of equity or justice. The guideline of capital punishment depends on the deterrent theory which in generic terms sets a model by delivering fear on the minds of others however there are certainly different ways by which the main model can be set, for example, in reformative theory.
Editor’s Note Punishment is a very crucial concept in any criminal law justice system. There are different categories of punishment depending on the nature of the crime committed. Death Penalty or Capital Punishment is one of them. This kind of punishment is awarded in India only in cases of heinous crimes and in what can be categorised as the ‘rarest of the rare‘ cases. This article explains the history, background and the evolution of capital punishment in India.
It also explains the current scenario with respect to capital punishment in India in light of various landmark judgments passed by the Supreme Court of India. Further, it also explains the two important theories of punishment, the constitutional provisions relating to capital punishment, the methods of executing capital punishment and the various crimes resulting in capital punishment in India. The author concludes by saying that capital punishment should be abolished and reformative theory should be adopted as against preventive/deterrent theory.