Capital punishment also known as death penalty, is the legal practice in India in which a person is put to death by state for serious crimes. It is legal but rarely voted and also a highly debated matter in India. Execution is not always carried out, because of the possibility of commutation to life imprisonment. Since 1995 it has been used only five times on Auto Shankar in 1995, Dhananjoy Chatterjee in 2004, Ajmal Kasab in 2012, Afzal Guru in 2013 and Yakub Memon in 2015.

Capital punishment breaches the human rights as it violates the right to life which happens to be the most basic of all human rights. Eighty four countries banned the use of capital punishment and the number of countries using this practice is declining. Being a civilised state India should abolish the Capital punishment as there is no credible evidence that it deters crime more effectively than life imprisonment and other punishments.

This paper analyses the constitutional validity and circumstances under which it may be granted with the help of some admissible cases and the rarest of rare doctrine prescribed by Supreme Court in Bachan Singh case. This paper culminates by perceiving that Indian judiciary always recedes from implementation of capital punishment as there are other alternative modes of punishment.

Introduction
Capital punishment is a government sanctioned practice whereby a person is put to death by the state as a punishment for the gravest of crimes such as: murder, acts of terrorism, gang rape, etc. Terminating the life of a criminal would never terminate the crime itself. Thus, it is often argued that if we execute a criminal then there would be no difference between us and the criminal.

A majority of countries in the world has now abandoned the use of the death penalty. But the world has not yet formed a consensus against its use. The most populous country in the world, China, executes thousands of people every year, and the most powerful country, the United States, uses it regularly.1 Eighty-four countries retain the use of capital punishment. However, the number of countries employing the death penalty is declining and it is possible that worldwide opinion and pressure will gradually influence all countries to abandon this practice.2

History of capital punishment

Capital punishment is a method of punitory punishment as old as civilization itself. It is a lawful castigation of death as a punishment and since ancient times, it has been used for a wide variety of offences. Both the Greeks and Romans invoked the death penalty for a wide variety of offences.3

Socrates and Jesus were perhaps the most famous people ever criticized for a capital crime in the ancient period. Hammurabis code, a code of laws developed by king of one of the first empire, dates back from the third or second millennium before Christ. This code claims that retribution, an eye for an eye and a life for a life, is justice. In Anglo American law the death penalty has been a customary response to certain kinds of offences.4

Evolution of Capital Punishment In India

At independence in 1947, India retained the 1861 Penal Code which provided for the death penalty for murder. During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly expressed the ideal of abolishing the death penalty, but no such provision was incorporated in the Constitution. Private members bills to abolish the death penalty were introduced in both houses of parliament over the next two decades, but none of them was adopted.

It has been estimated that 3000 to 4000 executions occurred between 1950 and 1980. Information on the numbers of persons sentenced to death and executed from 1980 to the mid- 1990s is harder to measure. It is estimated that two or three persons were hanged per year.5

In the Bachan Singh 6 judgment of 1980, the Supreme Court ruled that the death penalty should be used only in the rarest of rare cases, but what defines rarest of the rare is not clear.

The Rarest of The Rare Doctrine

In 1973 to 1980, the legislative dictate has changed from death sentence being the norm to becoming an exception, and necessarily to be accompanied by reasons. Bachan Singh vs. State of Punjab,7 was a landmark in the escalating debate on the question of the compatibility of the death sentence with Art. 21 of the Constitution. The Supreme Court while holding the validity of the death penalty expressed the opinion that a real and abiding concern for the dignity of human life postulates resistance for taking a life through laws instrumentality.8 That ought not to be done save in the rarest of rare cases, when the alternative option is unquestionably foreclosed.9

However, the Court declined to formulate any aggravating or mitigating factors as it would fetter judicial discretion, but held that a murder diabolically conceived and cruelly executed may attract extreme penalty. 10 It is not possible, the court opined, to feed numerous imponderable circumstances in an imperfect and undulating society. But what are those rarest of rare occasions is the dilemma.11

What appears as brutal and gruesome, to one judge may not appear to be so to another.12 For example, in one case the murder of wife and two children with the motive of leading life with the paramour could not convince Krishna Iyer, J. for death penalty, while Sen, J. wondered what else could be a fit case for death penalty than the one at hand.13 It is submitted that if the difference in perception is so glaring among two judges of the highest court in the country what is relative position among very large number of sessions judges in the country.

A. Significance And Extent

The doctrine rarest of the rare cases is based on Gandhian theory, i.e., hate the crime not the criminal.14 And thus, from this quotation, we can interpret the significance and extent of Death Penalty. And if we go through the deep study of it, we find that the court wants to say that the death penalty should be awarded rarely and only in such cases which are heinous, affecting the humanity and are brutal.15

The problem of Death Penalty is not very acute in respect of death sentences awarded by criminal courts in cases of general course of nature because death penalty is being awarded in very few cases of murder and in most of the cases of murder the alternative penalty of life imprisonment is awarded.

There is also one other characteristic of death penalty that is revealed by a study of the decided cases and it is that death penalty has a certain class complexion or class bias in as much it is largely the poor and the down trodden who are the victims of this extreme penalty.16

We would hardly find a rich person going to the gallows whoever has money to hire the services of great talents, has a reasonable chance of escaping the gallows though he has really committed a murder. It is only the poor, the resource less people who have nobody to support them, who usually go to the gallows. The death penalty in its operation is declaratory. 17 Capital punishment Death penalty as pointed out by warden Duffly is a privilege of the poor.18

Keeping the above points in the view the Apex Court propounded the doctrine of rarest of rare.

B. Judicial Discretion And The Circumstances of The Accused

The decision in Jagmohan Singh v. State of U.P 19 involved a failed challenge to the constitutionality of the death penalty. Its importance lies in the fact that it highlighted the need for noting special reason when imposing death sentences. Bachan Singh v. State of Punjab 20 ,which followed, was landmark decision, which despite affirming the constitutionality of the death penalty diluted the scope of its imposition substantially by introducing the test of rarest of the rare case.

It was held that:
….for persons convicted of murder, life imprisonment is a rule and death sentence is an exception. A real and abiding concern for dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when alternative option is unquestionably foreclosed.

The present position regarding Capital Punishment, as one might suppose of any system of law with pretensions of being considered civilised, is to use it sparingly as possible- i.e. in Rarest Of Rare cases and this is the system as it stands in India. To have it in the statute book, but to use it as rarely, is the compromise that the Courts, and we as a nation, adopt. In a relatively recent case Panchhi v. State of U.P21 , the Court observed: Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the rarest of rare cases.

The death sentence is not a rule but an exception. Mr M. Hidayatullah, the former Chief Justice of the Supreme Court, observed that the doctrine of the Rarest of Rare evolved in Indian Jurisprudence for use specifically with regard to the death sentence is capable of discounting the possible errors and abuse of the sanction

Constitutionality of The Death Sentence

Indian constitution is an amalgam of many constitutions, i.e., the constitution of America, Britain and Japan. It should not surprise anyone, therefore, that the main provisions of the constitution of India guaranteeing the right to life has been lifted from the American and the Japanese constitutions.22 It may be added here that what we have borrowed is the form or style of expression and not the right itself. The right to life is not the something that constitutions create or even confer.23 The constitution only recognises this inalienable and indispensable right.

The constitutional provision is therefore, only evidentiary value. Allan Gledhill has given an interesting statement regarding it, which is: In some of the older countries the right to life and liberty receives more effective protection from constitutiona1 conventions than they do in countries with constitutions elaborating the right. The degree of personal liberty enjoyed by the average Indian is not remarkably less than that enjoyed by a citizen of any other parliamentary democracy.24

With the on-going debate as to whether the death penalty should be abolished or not, the question of constitutionality of this sentence repeatedly comes into the spotlight. The basic question that comes to the mind of many peoples is how something can be so brutal, barbaric, uncivilised, inhumane, and cruel or degrading, be constitutional. Justice Krishna Iyer observed in Rajendra Prasads case25:

it is fair to mention that humanistic imperatives of Indian Constitution, as paramount to punitive strategy of Penal Code, have hardly been explored by courts in this field of life or death at the hands of the law. The main focus of our judgement is on this poignant gap in human rights jurisprudence within the limits of Penal Code, impregnated by the Constitution.

To put it pithily, a world over voicing the worth of the human person, a cultural legacy charged with compassion an interpretative liberation from colonial callousness to life and liberty, a concern for social justice as setting the sights of individual justice, interact with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14, 19, and 21.Yet, Article 21 of the Constitution states, No person shall be deprived of his life or personal liberty except according to procedure established by law. 26

A. Constitutional Powers Of The Supreme Court In Matters Relating To Death Sentence

Accordingly, the Supreme Court of India, considering the Constitution of India, regards the use of capital punishment as a legitimate penalty in certain of the most extreme criminal cases.

In Bachan Singh v. State of Punjab 27 , the constitutional bench of the Supreme Court discussed at length the question of whether the provision of death penalty as an alternative punishment for murder is violation of Article 19 and 21 of the Constitution. In this judgement, Justice P.N Bhagwati gave his minority judgment observing that the death penalty is violation of Article 19 and 21 of the Constitution. While the four judges in majority agreed otherwise. Machhi Singh and others v. State of Punjab28, is considered as a landmark judgement on the subject of the death penalty.

The Apex Court while discussing the aggravating and mitigating circumstances laid down the principles which would serve as guideline to the courts while deciding the sentence to be awarded in murder cases. Mithu v. State of Punjab29 is a historical judgment of the full bench of the Supreme Court, wherein the court declared Section 303 of the IPC as unconstitutional and violative of Article 14 and 21 of the Constitution.

It held that:
We Strike down Section 303 of the Penal Code as unconstitutional and declare it void. It is needless to add all cases of murder will now fall under Section 302 of the Penal Code and there shall be no mandatory sentence of death for the offence of murder. Therefore Supreme Court has a constitutional power in matters relating to death penalty.

B. Constitutional Powers Of The President And The Governor In Matters Relating To Death Sentence

After all the remedies under the judicial system are exhausted, a person on death row has the last remedy to knock at the doors of the first citizens of the country and seek pardon in the form of mercy petition which must be addressed by the convict either through authorised representative or himself from the prison. The Constitution under Article 72 and 161 confers the power on the President and the Governors, respectively, to suspend, remit or commute sentences in certain cases.30

The mercy jurisdiction of the President and the Governors to reduce or rescind punishment becomes operative only after the courts have delivered conviction and passed sentence. Also, the power under Article 72 and 161 bear an onus for the President and Governors to act fairly and reasonably. The power of President under Article 72 is wider than that of Governor in the sense that the President has exclusive powers to grant pardon in case of death sentence and court martial.31

In a petition of Kuljeet Singh alias Ranga v. Lt. Governor of Delhi 32, seeking to declare that the President had transgressed his executive power to grant clemency in exercise of the power under Article 72 of the Constitution, by refusing to grant clemency to him, the Supreme Court- after discussing the power of the President to commute the sentence of death – dismissed the petition.

In Mohinder Singh v. State of Punjab33, the Supreme Court held that while the mercy petition is pending before the President of India, the Supreme Court has no jurisdiction to hear any application for stay on execution as it is not maintainable. The President of India has to be approached for a stay of execution.

It is true that the ambit of capital punishment may be found fundamentally under Article 21 of the Constitution, it is also true that many countries have such provisions in their constitutions or in their law, which allow for the use of death penalty. It is certainly true that the majority of these countries and the vast majorities of the worlds democratic countries have abolished the death penalty in law. Constitutional challenges come in many forms to the death penalty, however, and it is clear that challenges regarding its constitutional validity are not limited to death penaltys right to life under Article 21 of the Constitution of India.

As former Chief Justice of India P.N Bhagwati stated that:
Death penalty does not serve any social purpose or advance any Constitutional value and is totally arbitrary and unreasonable so as to be violative of Articles 14, 15, 21 of the Indian Constitution…..

For the time being, however, despite profound concerns regarding the constitutional validity of the death penalty, it has been held as constitutional by the Supreme Court, as already discussed above. It is from this basis that the judiciary of India manage its imperfect application, and from this basis, too, which any analysis any challenge of that application must proceed.

Conclusion
In the issues related to the administration of capital punishment, some very important developments in the capital sentencing law have turned the balance in favour of the capital convicts substantially. First, in Swamy Shraddananda case34 , the court has emphasised the availability of sentences other than the life sentence and death penalty.

The Court held that:
….if the Courts option is limited only to two punishments, one is a sentence of imprisonment, and other is death sentence, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact lawfully belong to the court.

Thus Court expanded the range of alternative option which needs to be exhausted before opting for death sentence and the Supreme Court gave the judgment in favour of convict in terms of a Bachan Singh case35 – that ought not to be done save in rarest of rare cases when
alternative option is unquestionably foreclosed.

A study of death sentences after the Swamy Shraddananda case36 reveals that many cases which normally would have resulted in award of death sentences to the prisoners, have got the benefit of various alternative option between the minimum sentence of 14 years to a sentence of full life.37Moreover, Indian Jurisprudence on death penalty is not oblivious to the development in international law as also worldwide trends on the issue.38

The Supreme Court in Bariyar 39 referred to the international trends in the following terms:

Although these questions are not under consideration and cannot be addressed here and now, we cannot help but observe the global move away from death penalty. Latest statistics show that 138 nations have now abolished the death penalty in either law or practice. We are also aware that on 18th Dec. 2007, the United Nations General Assembly adopted resolution 62/149 calling upon countries that retain death penalty to establish a worldwide moratorium on executions with a view to abolishing the death penalty.

Recently, the Apex Court in Vodafone International Holdings B.V v. Union of India 40 stated  that certainty is integral to the Rule of Law. In a case involving the imposition of death penalty,  the courts cannot continue to judge under uncertainty. The normative standards in this behalf  must be finally settled leaving the uncertainty into oblivion, which is the least judiciary can do. Therefore we can say that, Indian judiciary is moving away from the implementation of capital  punishment as there is a greater emphasis on alternative modes of punishment and the  international legal developments which are against the such punishments.

Footnotes:
1 Richard C. Dieter, The Death Penalty and Human Rights: U.S. Death Penalty and International Law, Feb 2004, http://www.deathpenaltyinfo.org/Oxfordpaper.pdf
2 Franklin E. Zimring, The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code, http://www.jstor.org/stable/4099437
3 Monica K. Miller and R. David Hayward, Religious Characteristics and the Death Penalty, http://www.jstor.org/stable/25144611
4 Dr. A. Krishna Kumari, Capital Punishment: The Never Ending Debate (12 Oct.
2005), http://www.richard.clark32btinternet.co.uk/thoughts.html
5 Walia, Arunjeev Singh,Can society escape the noose–? : the death penalty in India : cases, materials, and opinion,201 (Human Rights Law Network, 1st edition, 2005)
6 Bachan Singh v. State Of Punjab , AIR 1980 SC 898
7 AIR 1980 SC 898
8 Ranga Billa vs. Union of India, Supreme Court, 1982.
9 Sher Singh v. State of Punjab, A.I.R. 1983 SC 365.
10 Shankaria vs. State of Rajasthan, A.I.R., 1978, S.C.p. 1248.
11 Nirmal Singh v. State of Haryana 1999Cr.LJ. 1836.
12 Supra note 5
13 Om Prakash vs State of Haryana 1999 Cr.L.J. 2044
14 Supra note 2
15 State of M.P. vs Molai 1999 Cr.L.J. 2698.
16 Monica K. Miller and R. David Hayward, Religious Characteristics and the Death Penalty, http://www.jstor.org/stable/25144611
17 RajyaSabha Debates, April 25,1958, Col. per Sh. B.B.B. Sinha
18 Ragjuir Singh vs. State of Haryana, A.I.R., 1975, S.C. 677.
19 AIR 1973 SC 947
20 Id
21 AIR 1998 SC 2726
22 Death Sentence: A Critical Analysis, http://shodhganga.inflibnet.ac.in/bitstream/10603/12841/10/10_chapter%204.pdf
23 Supra note 2
24 Gledhill, The life and liberty in first ten years of republican India, 2. J.I.L.I. 241 at 266 (1959-60).
25 Rajendra Prasad Etc. v State Of Uttar Pradesh, 1979 AIR 916
26 INDIA CONST. art. 21
27 Supra note 16
28 Machhi Singh and others v. State of Punjab, 1983 AIR 957
29 Mithu v. State of Punjab, 1983 AIR 473
30 INDIA CONST. art. 72 & 161
31 187th Report of Law Commission Of India, Consultation Paper On Mode Of Execution Of Death Sentence And Incidental Matters, http://lawcommissionofindia.nic.in/reports/187th%20 report.pdf
32 Kuljeet Singh alias Ranga v. Lt. Governor of Delhi, 1982 AIR 774
33 Mohinder Singh v. State of Punjab, AIR 1965 SC 79
34 Swamy Sharddananda v. State of Karnataka, 12 SCC 288
35 Supra note 6
36 Supra note 34
37 See Dilip Premnarayan Tiwari v. State of Maharashtra, (2010) 1 SCC 775, Haru Ghosh v. State of West Bengal, (2009) 15 SCC 551, Ramraj @ Nanhoo @ Bhinu v. State of Chhattisgarh, (2010) 1 SCC 573, Mulla v. State of U.P, (2010) 3 SCC 508, Sebastian @ Chevithiyan v. State of Kerala, (2010) 1 SCC 58
38 Rajesh Kumar v. State through Govt. of NCT of Delhi, (2011) 13 SCC 706
39 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, CRIMINAL APPEAL NO. 452 OF 2006
40 (2012) 1 SCALE 530