DEATH PENALTY AND INDIA

Article submitted by Vamya Dhavan

INTRODUCTION:

With the cry for human rights on the increase, the controversy around the death sentence has also increased. In India, the death sentence is carried out by hanging the neck until death.[1] Section 163 of the Air Force Act, 1950 also contains the provision of the death sentence being carried out by shot to death at the discretion of the court-martial for offences under section 34 (a) to (o) of the Act. Similar provisions are also contained in The Navy Act of 1957 and The Army Act, 1950. The Death penalty has undergone a lot of scrutiny in India not only by institutions such as courts or the law commission but also by the general public. Many people believe the death penalty to be the only form of justice whereas others deem it to be a gross miscarriage of justice. Following the United Nations General Assembly resolution calling for a moratorium, several countries abolished the death penalty. India however voted against it and upheld the death penalty.

EVOLUTION OF DEATH PENALTY:

The total numbers of people who have been executed in Independent India are widely disputed with different estimates from different organizations. Nathuram Godse and Narayan Apte were the first people to be awarded the death sentence in Independent India. The death sentence is one of the punishments allowed by the law, other being life imprisonment, imprisonment, forfeiture of property, and fine.[2] The Law Commission in its 35th report, Capital Punishment, 1967, recommended the continuation of the death penalty in India. Earlier, if an offence was punishable by the death sentence, the courts were required to give reasons if they prescribed some other punishment.[3] This section was repealed by Parliament in 1955 and further, in 1973, several more changes were enacted to the Code of Criminal Procedure and the court was now required to give special reasons if they awarded a death sentence when there is an alternative of life imprisonment.[4] Thus, there was a shifting pattern in the legal structure of the country which recognized the sacrament of life and the death penalty was no longer the norm. Furthermore, in Bachan Singh v. State of Punjab[5], the Supreme Court declared that the death penalty was only to be given in “rarest of rare” cases. Also, in Mithu v. State of Punjab[6], section 303 of the Indian Penal Code was struck down as the offence was only punishable by the death penalty and did not leave room for the judiciary to exercise its discretion. The Death sentence was now being seen as a necessary evil of the judicial system rather than one of its essential pillars.

SHOULD THE DEATH PENALTY FOR HEINOUS CRIMES BE ABOLISHED

There are many reasons why people want to abolish the death penalty. Many are worried it is an extra burden for the tax-payers due to the trial process and the numerous appeals filed by a convict on a death row whereas others are worried that the flaws in our judicial system may cause injustice to an innocent. However, we must keep in mind that keeping a prisoner in life imprisonment is a burden on tax- payers too and regardless of the fact which of the two options cost more, we cannot allow justice to be hindered by such reasons. Moreover, it is the duty of the legal and the judicial system of our country to ensure a free and fair trial so no innocent get punished. But does the answer lie in abolishing the punishment altogether? A better way would be to ensure a meticulous police force and a fair trial so no innocent gets punished. Another cause of concern is that the death sentence in rape cases may lead to under-reporting of crime as the rapist is usually known to the victim. Rape is perhaps the most heinous crime one could commit and the situation is even worse when the rapist abuses the trust and confidence of the victim. Shouldn’t we focus on dismantling such societal structures that keep the victim from raising their voice rather than encouraging the stigma and fears associated with such a situation? Another concern expressed by people is that the death penalty is unconstitutional and a barbaric, uncivilized act. However, in Jagmohan Singh v. State of UP[7], the Supreme Court held that the death penalty was not unconstitutional and it did not violate Articles 14, 19, and 21 of the Constitution. Article 21 clearly states that no person shall be denied of his/her life apart from the procedure established by law and in Triveniben v. State of Gujarat[8], it was again held by the Supreme Court that the death penalty was within the provisions of the Constitution. As to the concern that the death penalty is barbaric or uncivilized, it should be noted that the death sentence is only given when the crime committed itself is barbaric in nature, when it is so heinous that no other punishment seems to be just enough. The Death sentence protects the ‘civilized’ society from such criminals. Moreover, in Macchi Singh v. State of Punjab[9], the court laid out guidelines as to which crime could be considered as “rarest of rare”. It is only when the manner of commission of murder, the motive, the nature of the crime and its magnitude are of abhorrent nature and indicate great meanness and brutality that the death sentence is to be given. We must keep in mind that punishment must be proportionate to the crime. It is also one of the reasons why the death sentence has been abolished for ordinary crimes. In 2015, the Law Commission submitted its 262nd report on the issue of the death penalty and recommended the abolition of the death penalty for all crimes apart from terrorism-related offences and waging war on the state.

CURRENT POSITION IN INDIA:

The most recent death sentence in the country was carried out on March 19, 2020 when the convicts of the Nirbhaya rape case were hanged to death. The following offences in India are currently punishable by death:-

1. Waging war Against India[10]

2. Abetting or engaging in a mutiny in armed forces[11]

3. Fabricating false evidence to ensure the conviction of someone for a capital offence[12]

4. Committing a capital offence or being a party to a criminal conspiracy[13]

5. Dacoity with murder[14]

6. Police officers being involved in ‘fake encounters’[15]

7. Rape, in case of repeat offender or causing injuries resulting in victim’s death, vegetative state, or incapacitation[16][17]

8. Rape or gang rape of a girl under 12 years of age[18][19][20]

9. Kidnapping someone for the purpose of ransom or other coercive purposes[21]

10. Murder[22]

11. Abetting a minor’s suicide[23]

12. Abetting or Aiding ‘Sati’[24]

13. Repeat offender of Drug Trafficking[25]

14. Manufacture and sale of poisoned alcohol resulting in death ( in Gujarat only)[26]

15. Fabricating false evidence resulting in the execution of an innocent person belonging to Scheduled Caste or Scheduled Tribe[27]

The duty to award the death sentence for a crime rests heavily on the shoulders of our judiciary. The law has evolved to ensure that this duty is not taken lightly. In the words of Paulomi Tripathi, First Secretary in India’s Permanent mission to the UN: The Death penalty is only exercised in India where the crime committed is so heinous that it shocks the conscience of the society. Indian Law provides for all procedural safeguards, including the right to a fair trial by an Independent Court, the presumption of innocence, the minimum guarantees for defense, and the right to review by a higher court. However, the unfortunate truth is the judicial proceedings are not full proof and are subject to mistakes. Between January 1, 2000 and June 31, 2015, the Supreme Court imposed 60 death sentences and later it admitted that it had erred in about 15 of them, i.e., 25% of the cases. These figures are a testimony to the grave reality. In Rupa Ashok Hurra v. Ashok Hurra and Anr. (2002), the Supreme Court evolved the concept of Curative Petition to prevent abuse of the process of justice. All such provisions contained in the Indian Constitution must be kept in mind so no innocent suffers the death penalty. While the world of law is black and white, guilty, or not guilty, there are certainly many gray areas and the judiciary has to rise to the challenges posed by this.

CONCLUSION:

The judicial system of a country speaks volumes about it. The citizens put their faith in the courts that they will secure justice for them and it is the duty of the law to ensure that promise is fulfilled. When a heinous crime is committed against a victim, death sentence is the fulfilment of that promise. If the courts fail to secure justice, it threatens democracy. Strict punishments alone are not the solution. We need certain punishments too, i.e., the fear in the minds of criminals that they will certainly be punished strictly. Only then will the criminals be deterred. Plato, a Greek philosopher also advocated death penalty for those crimes which were incorrigible in nature. The law must protect its citizens at all costs and a death sentence is one of its ways to do that.

[1] Section 354 (5), Code of Criminal Procedure, 1973 [2] Section 53, Indian Penal Code [3] Section 367 (5), Code of Criminal Procedure, 1898 [4] Section 354 (3), Code of Criminal Procedure, 1973 [5] Bachan Singh v. State of Punjab, (1980) 2 S.C.C 684. [6] Mithu v. State of Punjab, (1983) 2 SSC 277. [7] Jagmohan Singh v. State Of UP, A.I.R. 1973 S.C. 947. [8] Triveniben v. State of Gujarat, A.I.R. 1989 S.C. 142. [9] Macchi Singh v. State Of Punjab, A.I.R. 1979 S.C. 916. [10] Section 121, Indian Penal Code [11] Section 132, Indian Penal Code [12] Section 194, Indian Penal Code [13] Section 120 B, Indian Penal Code [14] Section 369, Indian Penal Code [15] Section 304, Indian Penal Code [16] Section 376 A, Indian Penal Code [17] Criminal Law (Amendment) Act, 2013 [18] Section 376 AB, Indian Penal Code [19] Section 42, Protection of Children from Sexual Offences Act, 2012 [20] Criminal Law ( Amendment) Act, 2013 [21] Section 364 A, Indian Penal Code [22] Section 302, 303, Indian Penal Code [23] Section 305 [24] Part II, Section 4, The Commission Of Sati (Prevention) Act, 1987 [25] Section 31 A, Narcotics and Psychotropic Substances Act, 1985 [26] Bombay prohibition (Gujarat Amendment) Act, 2009 [27] Section 3(2), Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989