Capital punishment or death penalty have always been a topic of contradiction not only in India but also in several developed countries. In India, the motive for providing punishment is based on two aspects; the first being that the offender should suffer for the pain and injury he/she casted upon the victim and another motive is to discourage others from committing wrongs by sanctioning punishments. This paper focuses on Capital Punishment in India which is also known as the death penalty which is awarded by the court in very rare cases. Furthermore, this paper also explores the constitutional validity of capital punishment in the context of Indian Judiciary.

To understand the present status of Capital Punishment in India, it is important to know the history of advent of capital punishment and why is it given only in certain crimes, making it a contradictory topic from a moral point of view. Therefore, this paper shall deal with the history of Capital Punishment, followed by landmark cases decided by the Indian Courts.
In order to acquire clarity of Capital Punishment on a large scale, it is essential to have the knowledge of differentiating ideologies of other countries as well.

So, this paper will also briefly define methods used by different countries for giving capital punishment, including India. This paper extols the opinions as to why this sort of punishment is a formidable question on morality and its aspects while delivering at the same time, arguments for the veracity of its need.

Objectives Of The Study
The aim of the following study is:

• To study the meaning of the doctrine of rarest of rare cases
• To identify the constitutional validity of capital punishment.
• To understand the value of differing judicial opinions on its constitutional validity.

Research Methodology
Doctrine methodology is adopted for this project research. It involves the use of secondary data which is collected from various articles, websites, books etc. Doctrinal research asks what is law on a particular issue. It is concerned with analysis of the doctrine and how it has been applied and developed. This type of research is known as pure theoretical research. It consists of, either simple research directed at finding a particular statement of law or, more complex and in-depth analysis of legal reasoning.

Constitutional Validity of Capital Punishment

Definition
Capital Punishment can be defined as the lawful execution of an offender, who was sentenced to death after conviction by a Criminal Court. The lawful execution here indicates adherence to the due process of law, which specifies that capital punishment is different from extrajudicial executions which are carried out without due process of law.

History of Capital Punishment

To comprehend the current validity of capital punishment, it is essential to decipher the historical background of its origin. Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece under the laws of Draco, though Plato argued that it should be used only for the incorrigible. The Romans also used it for a wide range of offenses, though citizens were exempted for a short time during the republic.

It also has been sanctioned at one time or another by most of the world’s major religions. However, the prevalence of capital punishment in ancient times is difficult to ascertain, but it seems likely that it was often avoided, sometimes by the alternative of banishment and sometimes by payment of compensation. Death was formerly the penalty for a large number of offenses in England, during the 17th and 18th centuries, but it was never applied as widely as the law provided.

As in other countries, many offenders who committed capital crimes escaped the death penalty, either because juries or courts would not convict them or because they were pardoned, usually on condition that they agreed to banishment; some were sentenced to the lesser punishment of transportation to the then American colonies and later to Australia.

From ancient times until the 19th century, many societies like Rome, China and Europe administered exceptionally cruel forms of capital punishment. Although by the end of the 20th century many jurisdictions like nearly every U.S. state that employs the death penalty, Guatemala, the Philippines, Taiwan, and some Chinese provinces, had adopted lethal injection[1].

Historically, executions were public events, attended by large crowds, and the mutilated bodies were often displayed until they rotted. Since the mid-1990s, public executions have taken place in some twenty countries, including Iran, Saudi Arabia, and Nigeria, though the practice has been condemned by the United Nations Human Rights Committee as incompatible with human dignity.

Doctrine of rarest of rare cases

The capital punishment in India is based on the doctrine of the rarest of the rarest cases. According to this doctrine, to sentence a person for death, the crime test should be fully satisfied and it should not favour the accused in any circumstances. This philosophy depends upon the perception that the court should consider variety of factors such as society's abhorrence, personality of the criminal, motive and manner of the commission of the crime, extreme indignations and antipathy to certain crimes such as rape of minor girls etc.

The courts award death sentence because the situation demands for it as constitutional compulsion reflects the will of the society.

The philosophy of the doctrine of rarest of rare case was established in the landmark case of Bachchan Singh v. State of Punjab[2], (1980) where the Constitutional Bench raised question in regard to the constitutional validity of death penalty for murder under section 302 of the Indian Penal Code. The facts of the case were such that the appellant in a criminal appeal, was convicted for three murders and was sentenced to death under section 302 of the Indian Penal Code, by the Sessions Court.

The High Court rejected the appellant’s appeal and confirmed his death sentence. The appellant, by Special Leave to Appeal, came up before the Supreme Court to raise the consideration that whether the facts of his case were ‘special reasons’ for awarding him death penalty under section 354(3) of Code of Criminal Procedure, 1973.

The Supreme Court in the present case dismissed the challenges pertaining to the constitutionality of section 302 of IPC and section 354(3) of CrPC and finally held that:
the impugned provision of section 302 of IPC, 1860 violates neither the letter nor the ethos of Article 19 of the Constitution of India and that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done except in rarest of rare cases.

The Court further provided the guidelines and principles to be adhered to and considered while giving death penalty to a person, which are enumerated below;

A Court may impose death penalty:

• If the murder has been committed after peculiar planning and involves extreme brutality
• If the murder involves exceptional depravity or murder has been committed of a person on public duty.
• Capital punishment should not be given in every case. Instead it should be given on the basis of the culpability of various cases. Before granting such punishment, the circumstances of offender and the crime must be taken care of.
• The punishment can only be given when the life imprisonment falls short of the crime done by the offender.
• Both aggravating and mitigating factors should also be considered and the balance between them must be maintained.

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.

Constitutional Validity of Capital Punishment in India

India is one of the countries that has neither completely abolished the provision of capital punishment nor has created laws specifying its legality and validity. Since the establishment of the Indian Constitution, a number of challenges to the constitutionality of the death sentence have arisen through Supreme Court petitions.

There are seven crimes under which offenders may be sentenced to the death penalty. These include;

1. murder,
2. dacoity accompanied with murder,
3. abetment of suicide of a minor or insane or intoxicated person.

The first challenge to the death penalty came in 1973, with Jagmohan Singh vs State of Uttar Pradesh[3]. In this case, it was claimed, under Articles 14, 91, and 21, that judges possessed the arbitrary power to impose the death penalty; that the death penalty annihilated all fundamental freedoms under Article 19, and that there was no fair sentencing procedure with regard to the death penalty. The Bench in this judgement upheld that ‘the death penalty did not violate any fundamental rights or freedoms, and that it was indeed constitutional’.

The next development in capital punishment regulation came from Maneka Gandhi vs Union of India, which ensured two essential safeguards: first, that not all fundamental rights are distinct from one-another. Specifically, in order to be considered constitutional, a law needed to pass the test of Articles 14, 19, and 21 collectively.

Further, this judgement asserted that any procedure established under Article 21 needed to be ‘fair, just and reasonable,’ and couldn’t be fanciful, oppressive, and arbitrary. It was under this framework that the five judge Bench considered the landmark challenge to capital punishment in 1980, through Bachchan Singh vs State of Punjab.

There have been several diverse opinions regarding the death penalty in India as some are in the favour of the retention of capital punishment while others are in the favour of its abolishment.

Methods of giving capital punishment

At present, the ancient methods have been abolished for providing capital punishment and new techniques are being adopted in order to reduce the physical pain experienced by the offender while dying.

The new methods adopted for providing capital punishment include[4]:

• Hanging
• Beheading
• Stoning
• Lethal Injection
• Shooting by fire squad
• Shooting
• Electrocution
• Gas chamber
• Falling from an unknown height

Arguments: For and Against

Those who are in the favour of death penalty argue that it should be given in the most heinous and rarest of the rare crimes, for example ‘Delhi gang rape case’ in which the demand for death penalty for the accused was raised. The people who are against the capital punishment argue on the religious, moral and ethical grounds and declare it inhuman and a callous investment. It is also suggested that it should be replaced with life imprisonment or any other substitute. However, contemporary arguments for and against capital punishment, fall under three general headings namely[5];

Moral Arguments

Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life. Opponents of capital punishment, argue that, by legitimizing the very behaviour that the law seeks to repress, killing; capital punishment is counterproductive in the moral message it conveys. Moreover, they state that when it is used for lesser crimes, capital punishment is immoral because it is wholly disproportionate to the harm done. Abolitionists also claim that capital punishment violates the condemned person’s right to life and is fundamentally inhuman and degrading.

Utilitarian Arguments

Supporters of capital punishment also claim that it has a uniquely potent deterrent effect on potentially violent offenders for whom the threat of imprisonment is not a sufficient restraint. Opponents, however, point to research that has demonstrated that death penalty is not an effective deterrent than the long-term imprisonment.

Practical Arguments

There also are disputes about whether capital punishment can be administered in a manner consistent with justice. Those who support capital punishment believe that it is possible to fashion laws and procedures that ensure that only those who are really deserving of death are executed. By contrast, opponents maintain that the historical application of capital punishment shows that any attempt to single out certain kinds of crime as deserving of death will inevitably be arbitrary and discriminatory.

They also point to other factors that they think preclude the possibility that capital punishment can be fairly applied, arguing that the poor and ethnic and religious minorities often do not have access to good legal assistance, that also enhances racial prejudice. Finally, they argue that, because the appeals process for death sentences is protracted, those condemned to death are often cruelly forced to endure long periods of uncertainty about their fate.

Judicial opinions on Constitutionality of capital punishment

In the case of Rajendra Prasad v. State of U.P [6], Justice Krishna Iyer empathetically stressed that death penalty is violative of articles 14, 19 and 21. Her further said that to impose death penalty two things are required that should be fulfilled;

• The special reason should be recorded for imposing death penalty in a case.
• The death penalty must be imposed only in extraordinary circumstances

Further, the Supreme Court in Machhi Singh v. State of Punjab, laid down broad outlines of the circumstances when death penalty 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:

• The Manner of Commission of Murder. When the murder is committed in the most brutal manner so as to give rise to intense and extreme indignation
• When the murder is committed for a motive which speaks of enmity or depravity.
• Where a person from scheduled caste or minority community is murdered and his/her murder can be said to have a socially abhorrent nature or an anti-social nature.
• Magnitude of the crime must be considered. For example, multiple murders of family members or a particular caste or community.
• Lastly, the personality of the victim of murder must be taken into account

In Deena v. Union of India[7], the Court held that:
section 345(5) of the IPC, which prescribed hanging as mode of execution as fair, just and reasonable procedure adhering to the meaning of Article 21 of the Indian Constitution and hence, constitutional.

In Mithu v. State of Punjab:
Section 303 of the IPC was struck down as violative of Article 21 and 14 of the Constitution of India, as the offence under the section was punishable only with capital punishment and deprived the judiciary of its discretionary power and thus, results in an unfair and unjust procedure that costed a man his life.

Justice A.K Ganguly of the Supreme Court has termed the award of death sentence as:
barbaric, anti-life, undemocratic and irresponsible which is legal in the prevailing judicial system. The doctrine of the crime falling in the rarest of rare category in awarding the death penalty was a grey area as its interpretation depended on individual judges. He cautioned that before giving death penalty, a judge must be extremely careful and weigh mitigating and aggravating circumstances.

Justice Sarkaria, in his elaborate majority judgement stressed on one aspect saying that 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[8].

In Sher Singh v. State of Punjab, the Supreme Court held that the death penalty is constitutionally valid and permissible within the constraints of the rule in Bachchan Singh. This has to be accepted as the law of the land.

In the case of State of U.P v. Satish, the Supreme Court held that:
the consequences would be serious if the courts became lenient in delivering punishment for grave crimes, and so, therefore, death penalty for a rape of a six-year old girl seems constitutional and appropriate.

In the famous case of Ajmal Kasab, the Mumbai Special Court convicted Ajmal Kasab for murder, waging war on India, possessing explosives and other charges and after three days from his conviction sentenced him to death. Furthermore, this decision was upheld by the Bombay High Court stating that he was guilty of 80 offences in total and the only punishment fit for killing 166 people in 26/11 attacks in Mumbai, seems to be death penalty. His death sentence was upheld by the Supreme Court also.

The Apex Court in Shankar Kisanrao Khade v. State of Maharashtra, requested assistance of the Law Commission. The Law Commission in its 262nd report, answered the question by observing that the death penalty does not serve any penological goal of deterrence any more than life imprisonment in all matters and recommended the abolition of death penalty in all matters except terrorism. It expressly highlighted that the focus of debate on the death penalty ignores the pertinent and more important problems ailing the criminal system like poor defective investigation, crime prevention, victims’ rights, ineffective prosecution and poor legal aid.

Conclusion
Many countries have abolished death penalty or capital punishment by providing justification that it is barbaric and inhumane in nature and violates the right to life and liberty given to the citizens of the countries. However, if a valid opinion is to be taken, it would be right to say that capital punishment even in its brutal nature is effective in reducing criminal offences and discouraging offenders to some extent.

Moreover, if we are to talk about the right to life, it would be correct to stipulate that the Constitution of India provides enough remedies and defences to the person of offenders such as right to legal aid, right to treatment etc. And right to life is not an absolute right in case of a convicted felon who was charged for some heinous crime against an individual or the country at large.

Therefore, in my opinion, capital punishment is constitutionally valid and reasonable provided it is given in cases of grievous and extreme nature. Furthermore, in my opinion, a person, who neither values the life of others nor values the integrity of his/her own nation, should not be treated with empathy. Even though it is hard to quantify the crimes in terms of which crime deserves capital punishment, still, crimes of grievous nature like rape, terrorism and murder should always be awarded with capital punishment or death penalty.