According to the report published on death penalty by National Law University, there has been a total no. of 720 prisoners who have been executed in India (until 2015). The recent execution was of four convicts in Nirbhaya Rape Case in March 2020. Death penalty which is a violation of human rights or a measure to provide deterrent form of punishment is certainly a question that a revisit according to balance between the provisions and implementations regarding it. In this article, the offences under which death penalty can be awarded are briefly explained, the leading case laws, arbitrariness while awarding death penalty and delay in execution of the same is discussed. Moreover, the case of Shabnam Ali is discussed to review the need of the death penalty.
Keywords: Death Penalty, Execution, Capital Punishment, Deterrence, Right to Life, Human Rights
The question that whether capital punishment is appropriate form of punishment for even a criminal, committing the gravest of offence, has always puzzled us for we don’t have the right to take a life of a fellow human being even if he had done something awfully wrong as we need not stoop to his level. However, can a criminal, who have committed the gravest offence in the brutal manner should get away with proportionally less severe punishment than the severe act he has done? The adequacy of death penalty is a historical debate. Some argue over the doubt of innocence of the offender executed as this kind of human blunder is unavoidable and unreparable as well. Moreover, some argues that if killing someone is a crime then our criminal justice system is doing the same mistake again by awarding death penalty to the accused. However, it can be rebutted by the fact that killing a person is not crime unless prohibited by the law such as killing in self-defense, killing in war, etc. One can also argue that giving a person death penalty to make it a lesson for the rest of the members of the society is harsh. While other may argue that the plight of the victim and the gravity of crime done against the victim cannot be taken lightly as we live in a civilized society and moreover, there should be some repercussions for the horrific act which has made the members of the society to feel threatened and scared for their life.
Offences Punishable By Death Penalty in India
Before the amendment in 1955 in Criminal Procedure Code, as per the provision of CrPC, 1898, death penalty was the rule and less severe punishments, including life imprisonment, were the exception in the severe crimes. However, this picture changed gradually, first, the courts were given discretion while awarding death penalty or life imprisonment and now, as per Section 354(3) of CrPC, 1973 death penalty is the exception and less severe punishment including life imprisonment is the rule.
The offences punishable by death penalty:
Under IPC: Offence committed by being a party to a criminal conspiracy to commit a capital offence (Sec120B), Waging, or attempting to wage war, or abetting waging of war, against the Government of India (Sec 121), Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny (Sec 132), Giving or fabricating false evidence with intent to procure a conviction of a capital offence (Sec 194), Offence of committing Murder (Sec 302 and Sec 303), Abetting the suicide of a minor (Sec 305), Kidnapping, in the course of which the victim was held for ransom or other coercive purposes (Sec 364A), Offence of committing Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender (Sec 376A), Offence of committing Dacoity with murder, in cases where a group of five or more individuals commit dacoity and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty (Sec 396).
Under other Statutory provisions: Offence committed under Sec 5 of POCSO Act, 2012 of committing penetrative sexual assault,
Offence committed by Aiding or abetting an act of Sati under Part II, Section 4 of Prevention of Sati Act, 1829,
Offence committed under Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 which includes Drug trafficking in cases of repeat offences.
Constitutional Validity of Death Penalty
The constitutional validity of death penalty in India ha been challenged in plethora no. of cases. In Jagmohan Singh vs. State of Uttar Pradesh, the five judge bench of the Supreme Court, by a unanimous verdict, upheld the constitutional validity of death penalty held that capital punishment was not violative of Articles 14, 19 and 21 and . In this case the validity of death sentence was challenged on the ground that it was violative of Articles 19 and 21 because it did not provide any procedure. It was contended that the procedure prescribed under Cr. P.C. was confined only to findings of guilt and not awarding death sentence. The Supreme Court held that the choice of death sentence is done in accordance with the procedure established by law. It was observed that the judge makes the choice between capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during trial.
In another case Rajendra Prasad vs. State of UP, Justice Krishna Iyer empathetically stressed that death penalty is violative of articles 14, 19 and 21. He further said that to impose death penalty the two things must be required:
The special reason should be recorded for imposing death penalty in a case.
The death penalty must be imposed only in extraordinary circumstances.
But year a later in the landmark case of Bachan singh vs State of Punjab, by a majority of 4 to 1 (Bhagwati J. dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence violative of articles 14,19, and 21, of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the “rarest of rare cases”.
Further, The Supreme Court in Machhi Singh vs. State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed. Justice Thakkar speaking for the Court held that five categories of cases may be regarded as rarest of rare cases deserving extreme penalty. They are:
- Firstly: Manner of Commission of murder – When the murder is committed in an extremely brutal manner so as to arouse intense and extreme indignation in the community, for instance, when the house of the victim is set a flame to roast him alive, when the body is cut to pieces or the victim is subjected to inhuman torture.
- Secondly: Motive: When the murder is committed for a motive which evinces depravity and meanness eg. a hired assassin, a cold blooded murder to inherit property, or gain control over property of a ward, or a murder committed for betrayal of the motherland.
- Thirdly: Anti-social or socially abhorrent nature of the crime – where a scheduled caste or minority community person is murdered in circumstances which arouse: social wrath; or bride burning for dowry, or for remarriage.
- Fourthly: Magnitude of the Crime – Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community or locality.
- Fifthly: Personality of victim of murder.
Leading Cases regarding the provision of Death Penalty
|Jagmohan Singh v State of U.P. (1973): The Supreme Court held that the right to life was not a part of Article 19 and the death penalty could not be called unreasonable or opposed to public policy. The discretion given to courts is to impose the death penalty after balancing the aggravating and mitigating circumstances and it cannot be called unguided. Further, the Code of Criminal Procedure, 1973, lays down detailed procedures as to when a death sentence can be imposed and the imposition of the death sentence, following the procedure established by law, cannot be called unconstitutional. Bachan Singh v. State of Punjab (1980): In this case, death penalty was held constitutional if it is prescribed as an alternative for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life. This means that death penalty can only be imposed in rarest of the rare cases where an alternative option is excluded. Later, in the case of Macchi Singh v. State of Punjab, the court tried to lay down criteria for assessing whether a crime fell into the category of rarest of rare cases or not. Mithu v State Of Punjab (1983): Section 303 laid down mandatory death sentence for the offence of murder committed by a person undergoing life imprisonment. SC held that there is no rationale for drawing a distinction between a person who commits murder and a person who commits murder while serving a life sentence so as to make the death sentence mandatory for the latter class. It would be a savage punishment to impose a mandatory death sentence on a category of persons on an assumption that life convicts are dangerous per se. As the section was unfair and arbitrary it was struck down. ChhanulalVerma v State of Chattisgarh (2018): In the case, Justice Joseph stated that the time had come to review the need for the death penalty as a punishment. The majority opinion on this point stated that there was no need to re-examine the constitutionality of the death penalty in light of the decision in Bachan Singh Case. Hence, the sentence was commuted to life imprisonment taking into consideration the possibility of reform and rehabilitation of the appellant that was evidenced by his good conduct in prison. |
Arbitrariness while Awarding Death Penalty There have been various examples in cases where crimes committed are of similar nature but the sentences awarded to the convicts are distinct. In such two cases, one was of committing rape and murder a of minor in 1990 and the accused was hanged in Calcutta jail in 2004 and another one was of committing the rape and murder of 3 years old but his death sentence as awarded by lower court and high court was commuted by the Supreme Court in 2006. The offences are of similar nature but for the discretion provided by the Indian laws to the courts, one was hanged to death and other was given a lesser punishment which brings question to the whole concept of equality and justice to the Indian criminal justice system.
Delay in execution of Death Penalty Even if, death penalty is justified for whatsoever reason, in India, the biggest hurdle in providing effectiveness of the capital punishment is the delay in its execution. The recent execution in 2020 was of four convicts in Nirbhaya rape case of which the verdict was given in 2012. Other example could be the case of Shabnam Ali which has been in the news recently. The accused in the case was awarded death penalty in 2010 but she has not been hanged until this day.
International Scenario of Death Penalty The principles guiding the abolishment of death penalty and emphasizing the importance of human rights and dignity has been laid down in Article 3 of UDHR, Article 6 of ICCPR and the Second Optional Protocol of ICCPR. Comprehending the significance of Right to life, in a lot of countries awarding capital punishment is considered to be gross violation of one’s human right. For instance, England has banned the punishment of hanging to death under Murder Act, 1965. In Russia, the capital punishment has only existed in the books of law since 1996. Likewise, Poland, European countries (except Belarus), Netherland, Kazakhstan, Portugual and some other countries have banned the capital punishment either in law or practice for the sake of human dignity. However, as we know, there is no mandatory provision regarding the abolishment of death penalty in international law. USA, Pakistan, North Korea, Singapore, Japan are among the few countries where the capital punishment is still in existence.
Comment on the death penalty of Shabnam Ali The women are considered to have motherly instinct since the day they are born and in this case Shabnam Ali, who was one of the accused, killed her whole family including her 10 month nephew which makes this case brutal in nature and it comes within the category of rarest of the rare. “Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard the nature and circumstances of the crime and all the relevant circumstances”. Thus, the sentence of death penalty may be rightly awarded by the honorable courts. However, whether it is woman or man, who is accused the effectiveness of death penalty after 11 years would be less and in my understanding, executing the death penalty in this case or in any case in which is executed after so many years would be retributive in nature rather deterrent proving to be more cruel form of punishment and inhumane on part of us, as society.
Death Penalty is severe form of punishment but it has become the most cruel form of punishment in India due to its delay and lengthy procedures in our criminal justice system as it becomes mental torture for the offender to wait for the day of execution of his/her death penalty as rightly said by William E. Gladstone, “Justice delayed, is justice denied”. The objectives of death penalty could be vengeance/retribution in the name of justice to victim & preventing the accused from doing further crime and protection of the society i.e. Deterrence. The former reason cannot hold the basis of awarding the death penalty in the country like ours which gives priority to the human rights and also provides some fundamental rights to arrested person or accused and the later reason, has lost its essence in the lengthy procedures as provided by the law because of unwanted or unavoidable delay in the execution process. In my view, it cannot be suggested that the death penalty should be abolished altogether in India but if it is to be continued there needs to be promptness to make it effective and fulfill its main purpose of preventing crimes of similar nature otherwise it is futile and moreover, it is brutal to let them pass their time in jail with an alarm of upcoming death row for years.
The delay in cases results in delayed judgments which reduce the deterrent effect of the punishment. So, speedy and efficient trials are the urgent need to reduce the no. of cases and have an impact on the society of the different forms of punishment provided. Further, promptness in execution of death penalty is significant otherwise, the mental torture to the accused waiting for a death row makes it the most cruel form of punishment. Moreover, executing death penalty after 8-10 years for an act done before so long is little harsh than the capital punishment itself. So, a different unit/building of prison can be allotted to convicted prisoners with death penalty to monitor the overall improvement in them so that if they are going to be executed after so long the report prepared by the authorized officer should be analyzed by the court before rejecting the last resort as provided to them by law.
- Does death penalty deter crime? (March 8, 2021, 4:48 pm) (https://timesofindia.indiatimes.com/blogs/legally-speaking/does-death-penalty-deter-crime/)
- DEATH PENALTY INDIA REPORT, National Law University (March 8, 2021,5:10 pm) (Death+Penalty+India+Report_Summary.pdf (squarespace.com))
- Why We Can’t Have A ‘Democratic’ Discourse On Death Penalty? (March 8, 2021, 7:05pm) (https://www.livelaw.in/columns/why-we-cant-have-a-democratic-discourse-on-death-penalty-157582)
- To Hang Or Not To Hang: Death Penalty Often Depends On Judges’ Perception Of Crime, Outlook India Magazine (March 8, 2021, 7:08 pm) (To Hang Or Not To Hang: Death Penalty Often Depends On Judges’ Perception Of Crime | Outlook India Magazine)
- OHCHR | Second Optional Protocol to the International Covenant on Civil and Political Rights (March 30, 2021, 05:51 am) (https://www.ohchr.org/en/professionalinterest/pages/2ndopccpr.aspx)
- Rarest of rare- Death sentence in India and international scenario – iPleaders (March 30, 2021, 05:53 am) (https://blog.ipleaders.in/rarest-rare-death-sentence-india-international-scenario/) Constitutional Validity of Capital Punishment (madhavuniversity.edu.in) (March 30, 2021, 06:21 am)
- (Constitutional Validity of Capital Punishment (madhavuniversity.edu.in)) Constitutionality of Death Penalty (indianbarassociation.org) (March 30, 2021, 06:24 am) (https://www.indianbarassociation.org/constitutionality-of-death-penalty/)
 Indian Penal Code, No. 45 of 1860
Jagmohan Singh v State of U.P. (1973) AIR 947 (India)
Rajendra Prasad vs State of U.P, AIR 1979 SC 917 (India)
Bachan Singh v. State of Punjab (1980) 2 SCC 684 (India)
Macchi Singh v. State of Punjab (1983)SCR (3) 413 (India)
Jagmohan Singh v State of U.P. (1973) AIR 947 (India)
Bachan Singh v. State of Punjab (1980) 2 SCC 684 (India)
Macchi Singh v. State of Punjab (1983)SCR (3) 413 (India)
Mithu v State Of Punjab (1983) SCR (2) 690 (India)
ChhanulalVerma v State of Chattisgarh (2018) SCC OnLine SC 2520 (India)
DhananjoyChaterjee v. State of W.B. (1994) SCR (1) 37
Amrit Singh v. State of Punjab (2006) 12 SCC 79
 To Hang Or Not To Hang: Death Penalty Often Depends On Judges’ Perception Of Crime, Outlook India Magazine (https://magazine.outlookindia.com/story/india-news-am-i-to-live-or-die-judicial-vagaries-in-executing-death-penalty-one-case-too-many/302867#:~:text=In%20one%20of%20its%20landmark,%E2%80%9Crarest%20of%20rare%20cases%E2%80%9D.&text=An%20SC%20bench%20dismissed%20Jeet,death%20penalty%20to%20life%20term)
Shabnam Ali v. State of Uttar Pradesh (2015) 6 SCC 632