AUTHOR: SUHANI DAS, A STUDENT AT KIIT LAW SCHOOL, KIIT DU
CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT
ABSTRACT
Death penalty or the death sentence has always been a contentious issue, not just in India but also in a number of developed nations. In India, the justification for punishment is founded on two factors: the first is that the criminal should suffer for the suffering and harm they caused the victim, and the second is that punishing penalties would deter others from doing wrongdoing. Understanding the origins of the death penalty and why it is only applied to particular crimes makes it difficult to grasp the current position of capital punishment in India from a moral standpoint. The state has the power to limit or revoke the right to life and personal liberty under Article 21 of the Indian Constitution to uphold law and order. Capital punishment or death penalty, is a type of punishment reserved for the rarest of rare offences. When a crime is so heinous that it has the potential to terrorise society as a whole, the death penalty is applied. No final decision about the retention or abolition of death sentence has been made yet by Indian legislators. This article will deal with the validity of death penalty under article 21 of the Constitution.
Keywords: Right to life and personal liberty, capital crimes, death sentence, constitutionality.
INTRODUCTION
The death penalty can be characterized as the legitimate execution of a guilty party, who was condemned to death after conviction by a Lawbreaker Court. The legal execution here shows adherence to the fair treatment of regulation, which indicates that death penalty is unique in relation to extrajudicial executions which are done without fair treatment of regulation. The death penalty for homicide, treachery, illegal conflagration, and assault was broadly utilized in old Greece under the laws of Draco, however Plato contended that it ought to be utilized exclusively for the simply irredeemable. The Romans likewise involved it for a large number of offenses, however residents were excluded for a brief time frame during the republic. It likewise has been endorsed at some time by the greater part of the world’s significant religions. In any case, the commonness of the death penalty in old times is challenging to learn, however it appears to be probable that it was many times stayed away from, now and again by the option of expulsion and once in a while by instalment of remuneration. Passing was previously the punishment for countless offenses in Britain, during the seventeenth and eighteenth hundreds of years, however it was never applied as generally as the law gave. As in different nations, numerous guilty parties who perpetrated capital violations got away from capital punishment, either in light of the fact that juries or courts wouldn’t convict them or in light of the fact that they were absolved, normally on condition that they consented to expulsion; some were condemned to the lesser discipline of transportation to the then American provinces and later to Australia. From old times until the nineteenth 100 years, numerous social orders like Rome, China and Europe directed outstandingly awful types of the death penalty. Despite the fact that toward the finish of the twentieth century numerous wards like practically every U.S. express that utilizes capital punishment, Guatemala, the Philippines, Taiwan, and a few Chinese regions, had embraced deadly infusion. By and large, executions were public occasions, went to by huge groups, and the mangled bodies were frequently shown until they spoiled. Since the mid-1990s, public executions have occurred in about twenty nations, including Iran, Saudi Arabia, and Nigeria, however the training has been censured by the Unified Countries Common Liberties Board of trustees as contrary with human poise.
CAPITAL PUNISHMENT IN INDIA
The death penalty, otherwise called capital punishment, is granted in the rare of the rarest cases. Section 354(3) of the Code of Criminal Procedure,1873 gives a strategy to execute capital punishment, i.e., “Hanging by the neck until dead.” As of late, the convicts of the Nirbhaya case were hanged till the very end in Tihar Jail. A few well known occurrences on capital punishment are:
- Mohammad Ajmal Amir Kasab, sentenced in the 2008 Mumbai dread assault, was held tight on 21 November, 2012, and Dhananjoy Chatterjee accused and sentenced for the homicide and assault of a 14-year-old young lady was hanged in 2004.
- Yakub Memon, sentenced in the 1993 Mumbai Impacts, was hanged for the wrongdoing of psychological warfare on 30th July, 2015.
- In a well-known Nirbhaya case, four convicts: Pawan Gupta, Vinay Sharma, Akshay Kumar, and Mukesh Kumar were hanged to death in Delhi’s Tihar Jail in the year 2020.
CONSTITUTIONALITY OF CAPITAL PUNISHMENT
India is one of the countries that has neither completely eliminated capital punishment arrangement nor passed regulation framing its lawfulness. The legitimacy of capital punishment has been challenged on a few events since the Indian Constitution was laid out through High Court petitions.
The established legitimacy of capital punishment was moved occasionally in different ways:
- The High Court’s five-judge seat consistently kept up with capital punishment’s defendability in Jagmohan Singh vs. Province of Uttar Pradesh, inferring that it did not abuse Articles 14, 19, or 21. For this situation, the legitimacy of capital punishment was challenged in light of the fact that it contradicted Articles 19 and 21 in light of the fact that no method was given. It was contended that the cycle framed by Code of Criminal Procedure,1873 was restricted to finding culpability alone and did exclude the burden of a capital punishment. That’s what the High Court held “the decision of capital punishment is finished by the system laid out by regulation”. It was noticed that the appointed authority chooses a capital punishment and a lifelong incarceration in view of the conditions, realities, and sort of wrongdoing introduced during the preliminary.
- The High Court managed in Rajendra Prasad vs. State of U.P. (1979) that capital punishment would not be proper except if it very well may be demonstrated that the respondent represents a serious and continuous gamble to government managed retirement. The court additionally decided that the inconvenience of capital punishment for a homicide conviction under section 302 of the Indian Penal Code, 1860 would not comprise a protected break. The death penalty might be forced in serious conditions of outrageous responsibility, yet the convict’s wellbeing should be thought of.
- The High Court in Machhi Singh vs. State of Punjab (1983) set out the rules of the conditions in which capital punishments can be forced.
- Way of Commission of homicide: When the homicide is committed in a very merciless way to stir serious and outrageous resentment locally.
- Thought process: When the homicide is committed for an intention that displays debasement and ugliness.
- Hostile to social or socially despicable nature of the wrongdoing: Where a booked position or minority local area individual is killed in conditions which stimulate social fury.
- Greatness of the Wrongdoing: Violations of huge extent, similar to various homicides of a family or people of a specific standing, local area, or territory.
- Character of the casualty of homicide.
- Deena vs. Association of India the Court held that section 345(5) of the Indian Penal Code,1860, which recommended hanging as a method of execution as fair, just and sensible technique sticking to the importance of Article 21 of the Indian Constitution was sacred.
- In Mithu vs. State of Punjab, section 303 of the Indian Penal Code,1860 was struck down as violative of Article 21 and 14 of the Constitution of India, as the offense under the part was culpable just with the death penalty and denied the legal executive of its optional power and hence, brings about an uncalled for and shameful technique that cost a man his life.
- In Sher Singh vs. Province of Punjab, the High Court held that capital punishment is unavoidably substantial and allowable inside the limitations of the standard in Bachchan Singh. This must be acknowledged as the rule that everyone must follow.
- On account of State of U.P vs. Satish, the High Court held that the outcomes would be serious on the off chance that the courts became tolerant in conveying discipline for grave wrongdoings, thus, in this manner, capital punishment for an assault of a six-year old young lady appears to be sacred and proper.
- The Apex Court in Shankar Kisanrao Khade vs. State of Maharashtra, mentioned help of the Law Commission. The Law Commission in its 262nd report, responded to the inquiry by seeing that capital punishment doesn’t serve any penological objective of prevention anything else than life detainment in all matters and suggested the nullification of capital punishment in all matters with the exception of psychological oppression. It explicitly featured that the attention of discussion on capital punishment disregards the appropriate and more significant issues sickly the criminal framework like poor flawed examination, wrongdoing avoidance, victims’ freedoms, incapable arrangement and poor lawful guide.
ARGUMENTS
The people who are in the blessing of capital punishment contend that it ought to be given in the most shocking and most extraordinary of the uncommon violations, for instance, Delhi assault case, in which the interest for capital punishment for the denounced was raised. Individuals who are against the death penalty contend on the strict, moral and moral grounds and proclaim it barbaric and an insensitive venture. It is additionally proposed that it ought to be supplanted with life detainment or some other substitute. Nonetheless, contemporary contentions for and against the death penalty, fall under three general headings namely:
- Moral Contentions: Allies of capital punishment accept that the individuals who carry out murder, since they have ended the existence of another, have relinquished their own right to life. Rivals of the death penalty, contend that, by legitimizing the very conduct that the law tries to stifle, killing; the death penalty is counterproductive in the ethical message it passes on. Besides, they express that when it is utilized for lesser wrongdoings, the death penalty is unethical in light of the fact that it is entirely unbalanced to the mischief done. Abolitionists likewise guarantee that death penalty disregards the sentenced person’s right to life and is in a general sense brutal and corrupting.
- Utilitarian Contentions: Allies of the death penalty likewise guarantee that it affects possibly fierce guilty parties for whom the danger of detainment is definitely not an adequate restriction. Rivals, nonetheless, highlight research that has shown that capital punishment is certainly not a successful impediment than the drawn out detainment.
- Viable Contentions: There likewise are debates about whether the death penalty can be controlled in a way reliable with equity. The people who support the death penalty accept that it is feasible to design regulations and strategies that guarantee that main the individuals who are truly meriting demise are executed. Conversely, rivals keep up with that the authentic use of the death penalty shows that any endeavour to single out specific sorts of wrongdoing as meriting passing will unavoidably be erratic and oppressive.
They additionally highlight different variables that they think block the likelihood that death penalty can be genuinely applied, contending that poor people and ethnic and strict minorities frequently don’t approach great legitimate help, that likewise improves racial bias. At last, that’s what they contend, on the grounds that the requests interaction for capital punishments is extended, those sentenced to death are frequently brutally compelled to get through significant stretches of vulnerability about their destiny.
CONCLUSION
Granting Capital punishment is a subject of discussion yet it likewise brings up issues on strategies for examination and strategy of regulation, time taken to convey equity, and other such factors. In India, the High Court has been careful and hesitant in granting passing disciplines. Albeit, the regulation of most extraordinary of interesting has been put to address by numerous legal scholars. Hanging itself has gone under the radar of common freedom activists who think it is a brutal strategy. Capital punishment might be corrective however is an unspeakable atrocity and it has been contended that it doesn’t allow crooks an opportunity to apologize his activities or feel regret about it. Substitute disciplines like life detainment, isolation are being considered as options in contrast to death discipline. However, it is difficult to say whether it is the anxiety toward regulation or the apprehension about discipline that prevents a man from carrying out wrongdoing.
FAQ:
- What is capital punishment?
Capital punishment, also known as the death penalty, is the legally sanctioned execution of an individual as punishment for a crime, following a conviction in a criminal court.
- Under what circumstances is the death penalty awarded in India?
The death penalty is awarded in the “rarest of rare” cases, where the crime committed is considered heinous enough to shock society’s conscience, such as murder, terrorism, and certain cases of rape.
- What is the legal procedure for awarding the death penalty in India?
The death penalty is awarded following a thorough judicial process, as per Section 354(3) of the Code of Criminal Procedure, 1973, which mandates that the court must provide special reasons for imposing the death sentence over life imprisonment.
- How is the death penalty executed in India?
In India, the execution is carried out by “hanging by the neck until dead”, as prescribed by Section 354(5) of the Code of Criminal Procedure, 1973.
- Is the death penalty constitutional in India?
Yes, the death penalty is constitutional in India. The Supreme Court has upheld its validity in several landmark cases, such as Jagmohan Singh vs. State of Uttar Pradesh and Bachchan Singh vs. State of Punjab, subject to it being awarded in the rarest of rare cases.
- What are the main arguments in favor of the death penalty?
Supporters argue that it serves as a deterrent to heinous crimes, delivers justice to victims, and ensures that offenders who commit horrific crimes cannot harm society again.
- What are the main arguments against the death penalty?
Opponents argue that it violates the right to life, risks wrongful executions, disproportionately affects marginalized groups, and lacks evidence as a more effective deterrent than life imprisonment.
- Has the Supreme Court ever intervened to strike down mandatory death penalty provisions?
Yes, in Mithu vs. State of Punjab, the Supreme Court struck down Section 303 of the Indian Penal Code, which mandated the death penalty for certain offenses, deeming it unconstitutional.
- What role does the President of India play in death penalty cases?
The President of India has the constitutional power to grant clemency, commute, or pardon a death sentence under Article 72 of the Indian Constitution.
- What alternatives to the death penalty are being considered?
Alternatives such as life imprisonment without parole, extended solitary confinement, or reform-focused rehabilitation programs are being considered by some as more humane substitutes for the death penalty.