The discourse of capital Punishment in India and the need for amendment in Penal Law

Meaning And Definition Of The Death Penalty

According to the Oxford Dictionary, Capital punishment is the legally authorized killing of someone as punishment for a crime. Capital punishment is the death sentence awarded for capital offenses like crimes involving planned murder, multiple murders, repeated crimes; rape and murder, etc where the criminal provisions consider such persons as a gross danger to the existence of the society and provide death punishment. Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime.

The death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The judicial decree that someone is punished in this manner is a death sentence, while the actual process of killing the person is an execution. There has been a global trend toward the abolition of capital punishment; however, India has not adopted this position.

What makes this form of punishment different from the others is the obvious element of irreversibility attached to it. A man once executed for a crime can never be brought back to life. So if any error has crept in while deciding on a matter, this error cannot be rectified at a later stage. The death penalty has existed since antiquity. Anthropologists even claim that the drawings at Vallaloid by prehistoric cave dwellers show an execution.

The death penalty may have its origins in human sacrifices. Capital punishment can be traced back as early as 1750 B.C., in the lextalionis of the Code of Hammurabi. The Bible too set death as punishment for crimes such as magic, violation of the Sabbath, blasphemy, adultery, homosexuality, bestiality, incest, and rape. Plato too discussed the scope of the death penalty at length in his Laws[1].

Capital Punishment: A Comparative Study

Capital Punishment In America:

In the wake of the American Revolution, the U.S. Constitution gave both the states and the federal government the right to set their own criminal penalties. The very first congress of the United States passed federal laws making the death penalty for rape and murder and other crimes. Although the death penalty was widely accepted in the early United States its approval was not the result.

Some of the people viz. Cesare Beccaria, Thomas Jefferson, and Dr. Benjamin Rush expressed serious doubts and objections and advocated that capital punishment might be abolished. And in 1917, the state of Missouri and the territory of Puerto Rico both abolished the death penalty. The opposition to the death penalty gathered strength again in the mid-twentieth century after the controversial executions of Willie Francis, Burton Abbot, Caryl Chessman, and, Barbara Graham. Once again, several states either abolished or restricted the use of the death penalty.

In 1972, American abolitionists scored their greatest success. In the case of Furman v. Georga[2], the U.S. Supreme Court declared that the death penalty, as it was then carried out, was a 'cruel and unusual punishment, therefore it was unconstitutional. Four years later, the Court ruled in several cases. In Gregg v. Georga[3], Supreme Court said that death penalties imposed in some states under new laws were constitutional. But murder is a capital offense in all thirty-eight of the U.S. states that have the death penalty.

Capital Punishment In Britain:

Hanging was the traditional form of capital punishment in England. However, it was not the only one. In England, beheading was normally reserved for the highborn and it was last used in 1747. Hanging was the most common method of execution in England from the Saxon times until the 20th century. The last people to be hanged in Britain were two men, Peter Allen and Gwynne Jones who were hanged on the same day in 1964.

In Britain, the death penalty for murder was abolished for an experimental period of 5 years in 1965. It was abolished permanently in 1969. Free votes were held on the restoration of capital punishment in 1979 and 1994 but both times it was rejected[4].

Capital Punishment In China:

Capital punishment in the People's Republic of China is usually administered to offenders of serious and violent crimes, such as aggravated murder, but China retains in law a number of nonviolent capital offenses such as drug trafficking. The People's Republic of China executes the highest number of people annually, though other countries (such as Iran or Singapore) have higher per capita execution rates.

Watchdog groups believe that actual execution numbers greatly exceed officially recorded executions; in 2009, the Dui Hua Foundation estimated that 5,000 people were executed in China — far more than all other nations combined[5].

Capital Punishment In India:

The year 1975 and 1991, about 40 people were executed. Years 1995-2004 when there were no executions. Anti-death penalty activists dispute those figures, claiming much higher numbers on Death Row and actual executions. In August 2004, a 41-year-old former security man, Dhananjoy Chatterjee, was executed for raping and killing a 14-year-old schoolgirl in Calcutta.

This was the country's first execution since 1995. In 2005, about a dozen people were on the country's Death Row. It was reported in 2006 that the number of mercy petitioners with President Abdul Kalam from convicts on death row stands at 20, including 12 who were submitted when K.R. Narayanan was the president[6].

The execution of the death sentence in India is carried out by two modes namely hanging by the neck till death and being shot to death. The jail manuals of various States provide for the method of execution of the death sentence in India. Once the death sentence is awarded and is confirmed after exhausting all the possible available remedies the execution is carried out in accordance with section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck till death.

Section 354(5) of the Code of Criminal Procedure says, "When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead." It is also provided under The Air Force Act,1950, The Army Act 1950, and The Navy Act of 1957 that the execution has to be carried out either by hanging by neck till death or by being shot to death. 4.1

Capital Punishment Under Various Legislations In India

Capital punishment is prescribed as one of the punishments in various provisions of the Indian Penal Code 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic Substances Act 1985, and The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, 1987, The Air Force Act, 1950, The Army Act 1950 and The Navy Act 1957. In the Prevention of Terrorism Act, of 2002 also, there was a provision for the death penalty for causing the death of persons using bombs, dynamite, or other explosive substances in order to threaten the unity and integrity of India or to strike terror in the people. It is also interesting to note that under the Arms Act, NDPS Act, and the Scheduled Caste and Scheduled Tribes Act, Capital Punishment is the only punishment for the offense covered by those sections, thus leaving no room for the judiciary to exercise its discretion. It is doubtful whether these provisions can stand the test of constitutional validity in the light of the decision in Mithu v. State of Panjab[7] Because in this case section 303 of the Indian Penal Code was struck down as it was deemed violative of Articles 21 and 14 of the Constitution of India, as the offense under the section was punishable only with capital punishment and did not give the judiciary the power to exercise its discretion and thus resulted in an unfair, unjust and unreasonable procedure depriving a person of his life.

Abolitionist Perspective

There are four groups of countries regarding the abolition or retention of capital punishment.

These are:

1. Abolitionist For All Crimes:

   Countries whose laws do not provide for the death penalty for any crime: Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Belgium, Bhutan, Bosnia-Herzegovina, Bulgaria, Burundi, Cambodia, Canada, Cape Verde, Colombia, Cook Islands, Costa Rica, Cote D'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Haiti, Holy See, Honduras, Hungary, Iceland, Ireland, Italy, Kiribati, Kyrgyzstan, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Rwanda, Samoa, San Marino, Sao Tome And Principe, Senegal, Serbia (including Kosovo), Seychelles, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, Timor Leste, Togo, Turkey, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Uzbekistan, Vanuatu, Venezuela.
    

2. Abolitionist For Ordinary Crimes Only:

   Countries whose laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances: Bolivia, Brazil, Chile, El Salvador, Fiji, Israel, Kazakhstan, Latvia, and Peru.
    

3. Abolitionist In Practice:

   Countries that retain the death penalty for ordinary crimes such as murder can be considered abolitionists in practice in that they have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions. The list also includes countries that have made an international commitment not to use the death penalty: Algeria, Benin, Brunei, Burkina Faso, Cameroon, Central African Republic, Congo (Republic of), Eritrea, Gambia, Ghana, Grenada, Kenya, Laos, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Morocco, Myanmar, Nauru, Niger, Papua New Guinea, Russian Federation, South Korea, Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga, Tunisia, Zambia.
    

4. Retentionist:

   Countries and territories that retain the death penalty for ordinary crimes: Afghanistan, Antigua, and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, Chad, China, Comoros, Democratic Republic of Congo, Cuba, Dominica, Egypt, Equatorial Guinea, Ethiopia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Mongolia, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan, Thailand, Trinidad And Tobago, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen, Zimbabwe.

Debate Over Its Abolition And Retention

"An eye for an eye will make the whole world blind." ---Mahatma Gandhi UNITED NATIONS' VIEW: The United Nations High Commissioner for Human Rights called a meeting in early July to commemorate the fifth anniversary of the General Assembly's vote in favour of a moratorium on the death penalty.

The Secretary-General, Ban Ki-moon, delivered some remarks in which he reminded listeners that more than 150 countries have either abolished capital punishment or restricted its application. Some 32 states retain the death penalty in case of drug-related crimes and last year only 20 countries actually conducted executions.

In the United States, 17 states have done away with the death penalty. The right to life is the most fundamental of all human rights. It lies at the heart of international human rights law. The taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. Where the death penalty persists conditions for those awaiting execution are often horrifying, leading to aggravated suffering.

Information concerning the application of the death penalty, including secret trials and executions, is often cloaked in secrecy. And it is beyond dispute that innocent people are still put to death. The United Nations system has long advocated the abolition of the death penalty. Yet the death penalty is still used for a wide range of crimes that do not meet that threshold.

What does the constitution say?
It is pertinent that we discuss the constitutional validity of capital punishment as we conclude the topic, in the case of Jagmohan Singh v. State of U.P[8] which was the first case dealing with the question of the constitutional validity of capital punishment in India. The counsel for the appellant, in this case, put forward three arguments that invalidate section 302 of the IPC.

Firstly that execution takes away all the fundamental rights guaranteed under Clauses (a) to (g) of Subclause (1) of Article 19 and, therefore the law with regard to the capital sentence is unreasonable and not in the interest of the general public.

Secondly that the discretion invested in the Judges to impose capital punishment is not based on any standards or policy required by the Legislature for imposing capital punishment in preference to imprisonment for life.

Thirdly, he contended, the uncontrolled and unguided discretion in the Judges to impose capital punishment or imprisonment for life is hit by Article 14 of the Constitution because two persons found guilty of murder on similar facts are liable to be treated differently one forfeiting his life and the other suffering merely a sentence of life imprisonment.

Lastly it was contended that the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life. The trial under the Criminal Procedure Code is limited to the question of guilt.

In the absence of any procedure established by law in the matter of sentence, the protection given by Article 21 of the Constitution was violated and hence for that reason also the sentence of death is unconstitutional. After looking into the arguments the five judge bench upheld the constitutionality of death penalty and held that deprivation of life is constitutionally permissible for being recognized as a permissible punishment by the drafters of our Constitution

The researcher has attempted to conclude this project by answering both the questions that were raised at the beginning of this project.

Conclusion
India is certainly moving forward as a democracy with a remarkable role played by all three organs of the state but from a legal or penal perspective judiciary is the central pillar. Judiciary in India like other democracies is active and keeps checks on the violation of the rights of the citizens.

As already discussed above the discourse of capital punishment is thoroughly discussed in India in various cases by the supreme court itself. On the relevance of capital punishment which is the main question researcher raised and tried to answer in this project, SC has given the "rarest of the rare case" doctrine in Bachan Singh v state of Punjab, 1980[9].

The doctrine simply states that the death penalty is an absolute, unique exception, and cannot be the rule (as compared to what was at one point the legal position in cases punishable with the death penalty). In keeping with this, it should only be awarded when life imprisonment is not an option by a far stretch, and there is no alternate remedy available.

To end capital punishment as a matter of routine this doctrine was given by the court but I must opine here, as much as I admire the Hon'ble Supreme courts effort in defining this stringent punishment I believe the cases should be further narrowed down further when this penalty must be awarded, there is still scope of discrepancies as it is up to the discretion of the judges to decide. Talking about the relevance is evident that capital punishment in its entirety can not be abolished but its scope is further curtailed.

Bibliography
Books:

• KD Gaur, Indian Penal Code (LexisNexis, India, seventh edition 2021)
• P.S. Atchuthen Pillai, P.S.A. Pillai's criminal law (LexisNexis, India, 12th edition 2014)

End-Notes:

1. Death Penalty Research Paper, available at : - https://bohatala.com/death-penalty-research-paper
2. 408 US 238 - 1972
3. 428 US 153 - 1976
4. A History of Capital Punishment in Britain, available at: - A History of Capital Punishment in Britain - Local Histories (last visited: 8th December 2022).
5. Death Penalty Reform, available at: - https://duihua.org/resources/death-penalty-reform/ (last visited: 5th December 2022).
6. Capital punishment in India Faizlawjournal, 2007.
7. AIR 1983 SC 47
8. 1973 AIR 947
9. (1982) 3 SCC 24, 1983 1 SCR 145a