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Indian Journal of Law and Legal Research Volume III Issue II ISSN: 2582-8878

CAPITAL PUNISHMENT IN INDIA - CONSTITUTIONAL

VALIDITY OF CAPITAL PUNISHMENT

Avani Jain, NRI Group of Institutions

ABSTRACT

Capital punishment aka death penalty is a gravely discussed topic not only
among the Indian legal society but all around the world. Not only is it a
talking point amongst the legal professionals, but among the people in
general as well. On one hand many people are of the view that it violates
human rights on the other hand, there are plenty others who are of the opinion
that it sets a benchmark for the criminals in order to stay away from
committing crimes.

As a key to understanding the current status of capital punishment in India,

it is important to understand the history of capital punishment in India and
why it is applied only in certain crimes, making it a contradictory topic from
a moral standpoint. Ergo, this paper throws a light on the provisions
regarding the history of capital punishment in India and the constitutional
validity that it holds.

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Definition of Capital Punishment

Capital Punishment is defined as the lawful execution of an offender, who was sentenced to
death after conviction by a Criminal Court. A lawful execution here indicates adherence to the
due process of law, which specifies the laws applicable to that particular case.

Capital Punishment - A History

It is crucial to decipher the origins of capital punishment in order to understand its current
status. Death penalty was widely applied for murder, treason, arson, and rape under the Draco
law, although Plato argued that it should not be used.

Additionally, it has been sanctioned by most of the world's major religions at various times.
However, it is difficult to ascertain how frequently capital punishment was used in ancient
times, but it is likely to have been avoided, sometimes through banishment and sometimes by
execution.

In the United States, many offenders who committed capital crimes escaped the death penalty,
either because juries or courts did not convict them or because they were pardoned, usually on
condition that they accept banishment; some were sentenced to the lesser punishment of exile.

Historically, societies such as Rome, China and Europe used one of the most cruel forms of
capital punishment. Although by the end of the 20th century, nearly every state in the U.S. still
uses the death penalty, as does Guatemala.

In the past, executions were public events attended by large crowds, and the mutilated corpses
were often displayed until they rotted. Since the mid-1990s, public executions have taken place
in about twenty countries, including Iran, Saudi Arabia, and Nigeria.

Doctrine of "Rarest of the rare"

Capital punishment in India is based on the doctrine of the rarest of rare cases. According to
this doctrine, a person should be sentenced to death if the crime test is satisfied and if it does
not favor the accused in any way. Due to constitutional compulsion and public will, the courts
award the death penalty as a result of situations that demand it.

In the seminal case of Bachchan Singh v. State of Punjab (1980), the Constitutional Bench
questioned the constitutional legality of the death penalty for murder under section 302 of the

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Indian Penal Code, 1860 (hereinafter referred to as IPC) . The facts of the case were that the
appellant had been convicted of three murders and sentenced to death by the Sessions Court
under section 302 of the IPC.

The appellant's appeal was dismissed by the High Court, and his death sentence was upheld.
The appellant appeared before the Supreme Court on Special Leave to Appeal to ask if the facts
of his case constituted special reasons for the death penalty being imposed under section 354(3)
of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC)

.
In this case, the Supreme Court dismissed the challenges to the constitutionality of sections
302 of the IPC and 354(3) of the CrPC, concluding that : the impugned provision of section
302 of the IPC,1860 violates neither the letter nor the ethos of Article 19 of the Constitution of
India, and that a genuine and abiding concern for the dignity of human life precludes taking a
life through the use of law. That should only be done in the most extreme of circumstances.
The Court also established the rules and principles which are as follows :-

A court may impose the death penalty if the following conditions are met:

1. If the assassination was carried out with unusual forethought and savagery.

2. If the murder includes a high level of depravity or if the victim is a public servant.

3. The death penalty should not be used in every case. Instead, it should be based on the
degree of culpability in each situation. The circumstances of the offender and the
offence must be considered before such a punishment is imposed.

4. Only when life imprisonment is insufficient to punish the offender's offence can the
penalty be imposed.

5. Both aggravating and mitigating elements must be examined, and a balance must be
maintained between them.

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Considering the scope of this doctrine, the Supreme Court further held that:

The constitutional validity of this doctrine and the purpose of this doctrine, is not be a
disincentive but a gesture to disapprove the crime on the part of society and if this doctrine or
capital punishment is abolished then it will be riskier for the society.

Thus, the doctrine of the rarest of rare cases is strictly followed in India, with high degree of
consideration in giving death penalty, as the offenders do have their fundamental rights but that
doesn't mean that they should be easily left. The circumstances and the facts are highly
considered and then the punishment is awarded until and unless the crime is very grievous and
it harms the ethics of the society and act as a model, so that people fear in indulging and
committing such crimes again.

The Constitutional Validity of Capital Punishment in India

India is one of the few countries that has not totally abolished capital punishment or enacted
legislation establishing its legitimacy and constitutionality. Since the Indian Constitution was
enacted, a number of Supreme Court petitions have been filed challenging the validity of the
death penalty.

In 1973, Jagmohan Singh vs State of Uttar Pradesh was the first case to challenge the death
penalty. In this case, it was alleged that courts had the arbitrary power to inflict the death
sentence by Articles 14, 91, and 21, that the death penalty extinguished all fundamental liberties
under Article 19, and that there was no fair sentencing system with relation to the death penalty
under Article 19.

The next major judicial breakthrough in capital penalty law was Maneka Gandhi versus Union
of India, which established two important safeguards: first, that all fundamental rights are not
mutually exclusive. A statute has to pass the test of Articles 14, 19, and 21 taken together in
order to be pronounced constitutional. Furthermore, any procedure established under Article
21 must be fair, just, and reasonable, and cannot be whimsical, oppressive, or arbitrary,
according to this ruling.

Bachchan Singh versus State of Punjab, a landmark challenge against capital punishment in
1980, was heard under this paradigm by a five-judge bench which has been explained above.

Methods of Execution of the Death Penalty

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At the moment, the ancient methods of providing capital punishment have been abolished, and
new techniques are being used to reduce the physical pain experienced by the offender while
dying.

The new methods for carrying out capital punishment include:

1. Hanging
2. Beheading
3. Stoning
4. Injection of Death
5. Shooting by a fire department
6. Shooting
7. Electrocution

8. Gas chamber
9. Falling from an unknown height

Judicial opinions on the constitutionality of capital punishment:

In Rajendra Prasad v. State of Uttar Pradesh, Justice Krishna Iyer emphatically stated that the
death sentence is a violation of articles 14, 19, and 21 of the Constitution. He further stated that
in order to impose the death penalty, two conditions must be met :

" The exceptional basis for imposing the death penalty in a case must be recorded.

" Only under exceptional circumstances should the death penalty be used.

Furthermore, in Machhi Singh v. State of Punjab, the Supreme Court established wide
guidelines for when the death penalty should be applied. According to Justice Thakkar,
speaking for the Court, five types of cases can be classified as the rarest of rare cases, deserving
of the most severe punishment. They are as follows :

1. Murder in the Manner of Commission. When a murder is carried out in the most heinous
manner possible in order to elicit intense and extreme outrage.

2. When a murder is carried out with a motivation that suggests animosity or depravity.

3. When a person from a scheduled caste or a minority community is murdered, the crime
might be classified as socially reprehensible or anti-social.

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4. The severity of the crime must be taken into account. Multiple murders of family
members or members of a certain caste or group, for example.

5. Finally, the personality of the murder victim must be considered.

The Supreme Court concluded in Deena v. Union of India that section 345(5) of the Indian
Penal Code, which required hanging as a method of execution, was a fair, just, and reasonable
procedure that adhered to the interpretation of Article 21 of the Indian Constitution and thus
constitutional.

Section 303 of the Indian Penal Code was struck down in Mithu v. State of Punjab as a violation
of Articles 21 and 14 of the Indian Constitution, as the offence under the section was punishable
only by capital punishment, robbing the judiciary of its discretionary power and resulting in an
unfair and unjust procedure that cost a man his life.

Justice A.K. Ganguly has described the death penalty as brutal, anti-life, undemocratic, and
irresponsible, despite the fact that it is allowed under the current court system. The notion of
the rarest of rare crime in giving the death penalty was a grey area since it was interpreted
differently by different judges. He warned that a judge must use extreme caution and evaluate
mitigating and aggravating circumstances before imposing the death penalty.

In his lengthy majority opinion, Justice Sarkaria emphasised one point, saying, "I fail to see
why too much importance should be attached to the life of an individual who has been found
guilty of a heinous offence when the interests of the society demand that death penalty should
be awarded to him. Often in the event of a riot, the police are required to open fire in the
interests of society, if other methods fail. In such a firing, even an innocent soul can be injured
or killed.

So, shall we infer from this that the police should never resort to such drastic measures in order
to disperse an unlawful assembly, merely because there is danger to the life of an innocent? No
one will ever ask this question or say that. If so, then why should we have a sudden change of
conscience for awarding death penalty".

The Supreme Court ruled in Sher Singh v. State of Punjab that the death sentence is
constitutionally acceptable and permissible within the limits of the Bachchan Singh rule. This
must be regarded as the rule of law.

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The Supreme Court decided in the case of State of U.P. v. Satish that the repercussions would
be significant if the courts become indulgent in dispensing punishment for grave crimes, and
that the death sentence for rape of a six-year-old child appears constitutional and reasonable.

In the well-known case of Ajmal Kasab, the Mumbai Special Court found him guilty of murder,
waging war on India, possessing explosives, and other crimes, and sentenced him to death three
days after his conviction. Furthermore, the Bombay High Court supported the decision, adding
that he was guilty of 80 offences in total and that the only punishment suited for killing 166
people in Mumbai's 26/11 assaults appears to be the death penalty. The Supreme Court upheld
his death sentence as well.

In Shankar Kisanrao Khade v. State of Maharashtra, the Supreme Court asked the Law
Commission for help. In its 262nd report, the Law Commission responded to the topic by
stating that the death penalty does not serve any penological aim of deterrence any more than
life imprisonment in all cases, and suggested that the death penalty be abolished in all cases
except terrorism. It was specifically stated that the focus of the debate on the death sentence
misses the other pressing and essential issues plaguing the criminal justice system, such as bad
investigation, crime prevention, victims' rights, inefficient prosecution, and inadequate legal
aid.

CONCLUSION

Many countries have abolished the death penalty or capital punishment, citing the fact that it
is brutal and inhumane in nature, and that it violates citizens' rights to life and liberty. If a valid
view is to be accepted, it is reasonable to conclude that capital punishment, especially in its
most heinous form, is beneficial in lowering criminal offences and discouraging criminals to
some extent.

Furthermore, if we're talking about the right to life, it's important to note that the Indian
Constitution allows enough remedies and defences to offenders, such as the access to legal
assistance, treatment, and so on. In the instance of a convicted felon accused with committing
a horrific crime against an individual or the country as a whole, the right to life is not an
absolute right.As a result, I believe that capital punishment is constitutional.