Capital Punishment is the state-sanctioned killing of a person as punishment for a crime. Since the British Era, Capital Punishment or the death penalty has been part of our judicial system. It is still a legal form of punishment for crimes in India. While 109 countries across the globe have abolished Capital Punishment, 55 countries still retain capital punishment, few countries do not practice capital punishment but they have provisions of Capital Punishment in their judicial framework. Countries like India, Pakistan, China, the USA, Japan have retained capital Punishment as punishment for certain crimes.

In India under Code of Criminal Procedure, 1898 punishment for murder was Capital punishment or death penalty. Even before the courts can decide about the validity of Death Penalty, the 35th Law commission in the year 1967 in its report stated that Death Penalty should be retained as it acts a s a deterrent and creates fear among criminals.

The Constitutional validity of Death Penalty has been challenged from time to time and after the re-enactment of the Code of Civil Procedure in 1973, there have been certain changes in the concept of Death Penalty. Under the 1898 Act, A judge has to assign reasons for not imposing the death penalty whereas under the 1973 Act, under section 354(3) special reasons have to be given for awarding the death penalty not life imprisonment.

For the first time, the constitutional validity of capital punishment was challenged in the case of Jagmohan Singh versus The state of Uttar Pradesh AIR 1973, this case was decided before the enactment of the Code of Criminal Procedure, 1973. It was stated in the said petition that the death penalty violates Article 14, 19 and 21 of the Indian constitution because it does not prescribe any procedure. It was contended that the procedures established under the Act were confined only to findings of guilt and not awarding a death sentence.

The Supreme Court held that the choice of awarding a death sentence is done in accordance with procedures established by law and the judge makes the choice between the death penalty and life imprisonment based on the nature of crime, circumstances, and facts brought on records during the trial of the case. A 5 judges Bench of the Supreme Court held that Capital Punishment was not violative of Articles 14, 19, and 21 of the Indian Constitution.

After this case the code of criminal procedure was re-enacted in the year 1973 and certain important changes were made in procedures relating to imposition of capital punishment. Again in Rajendra Prasad Versus The state of Uttar Pradesh AIR 1979 SC 918, Justice Krishna Iyer held that Capital punishment would not be justified unless it is shown that the criminal is dangerous to society.

He stated that giving discretion to judges to make choice between capital punishment and life imprisonment on the basis of special reason will be violative of Article 14 of the constitution. Justice Sen sitting alongside him dissented with his view on some points but held that it violates provisions of the Indian constitution.

However, the judgment in Rajendra Prasad Versus The state of Uttar Pradesh AIR 1979 SC 918 was overruled by Supreme Court by 4:1 majority in Bachan Singh Versus The state of Punjab 1980 SC 898, Supreme Court held that imposition of the death penalty is an alternative punishment for murder and it does not violate any of the fundamental rights enshrined under the constitution. It was, in this case, the doctrine of rarest of rare was propounded.

The ‘rarest of rare’ doctrine developed in Bachan Singh requires judges to balance aggravating and mitigating circumstances while determining whether a death sentence is an appropriate punishment.

In Machi Singh Versus the State of Punjab 1983 AIR SC 957, the Supreme Court re-instated and re-emphasized the principles of sentencing policy propounded in Bachan Singh's case
Certain conditions/guidelines were laid down in landmark cases following Bachan Singh's case:

1. The death penalty should be awarded in the rarest of cases. Some of the rarest of rare cases include Section 121 of IPC, section 302 of IPC etc.
2. Judges should take into consideration aggravating and mitigating circumstances into consideration.
3. Nature and gravity of the crime, chances of reformation of the criminal should also be taken into consideration

In Santosh Kumar Bariyar versus State of Maharashtra 2009, the Supreme court held that life imprisonment is the standard and the death penalty is an exception.

India has been one of the signatories of International Covenants of Civil and political rights, in 1966, India ratified this in 1979. Article 6 of the Covenant recognizes the individual's "inherent right to life" and requires it to be protected by law. It is a "supreme right" from which no derogation can be permitted, and must be interpreted widely. While Article 6 does not prohibit the death penalty, it restricts its application to the "most serious crimes".

The UN Human Rights Committee interprets the Article as "strongly suggesting that abolition is desirable" and regards any progress towards abolition of the death penalty as advancing this right. There are two optional protocols attached to this covenant and The Second Optional Protocol commits its signatories to the abolition of the death penalty within their borders. India is not a party to the second optional protocol and has no international commitment to abolish the death penalty.

In my view all the questions about the death penalty being inhumane, contrary to standards of Human rights, violative of Article 14, 19, and 21 is not to be considered at first, at first gravity of the crime is to be seen  circumstances leading to crime, are there any chances of reformation? have the reasonable opportunity being given to the person convicted?.

India under Article 21 of its constitution states that:
No person shall be deprived of his life or personal liberty except according to a procedure established by law.

The procedure of law clearly states the death penalty is to be imposed under the rarest of rare cases following certain guidelines laid down by the Supreme Court in its landmark judgment and the special reasons for imposing the death penalty is to be recorded in the penalty.

Article 21 clearly states that no one will be deprived of his or her life except according to the procedure established by law. The death penalty is not awarded arbitrarily, it is awarded after following due process of law and the convicted person has remedial measures available to him even after Supreme Court has upheld the death penalty.

The convicted person has a mercy petition to the President and Governor of state, even after dismissal of review petition the convicted person can file a curative petition, a concept evolved by the supreme court in Rupak Ashok Hurra versus Ashok Hurra and another, 2002. In my Opinion death penalty should stay for the rarest of rare cases and it will also act as a deterrent.

End-Notes:

1. Article 21 of the Constitution of India
2. Jagmohan Singh versus The state of Uttar Pradesh AIR 1973
3. Rajendra Prasad Versus The state of Uttar Pradesh AIR 1979 SC 918
4. Bachan Singh Versus The state of Punjab 1980 SC 898
5. Machi Singh Versus the State of Punjab 1983 AIR SC 957
6. Santosh Kumar Bariyar versus State of Maharashtra 2009
7. International Covenants of Civil and political rights
8. Rupak Ashok Hurra versus Ashok Hurra and another, 2002