Author- Lipi Saini , National Forensic Science University, Delhi
Introduction
Death Penalty or Capital Punishment is the execution of a guilty person, sentenced to death after conviction by court under a criminal offence. The death penalty is given in the matters of heinous crimes. Death Penalty stands for the most severe form of punishment.
All punishments are based on the same proposition i.e. there must be a punishment for all the wrong doing. Capital punishment rests on the same preposition of wrongdoing.
The debate on the death penalty is the most generally relevant debate, keeping in mind the situations of criminal offences in the society. Death Penalty or Capital Punishment is an integral part of the Indian criminal justice system. The existence of the death penalty is questioned as immoral. However this is an argument to keep the person alive at the cost of humanitarian grounds.
By common usage in jurisprudence, criminology etc. death penalty means a sentence of death.
Historical Background of Death Penalty
Death Penalty is an ancient sanction. In India Capital Punishment is given from the time of rulers and kings. There is no single country in the world where the death penalty never existed. Death penalty for murder, arson, treason and rape was widely used in Greece under the laws of Draco.
Though Plato argued that Death penalty should be used only for the incorrigible.
Romans also used the Death Penalty for wide ranges of offences.
Death Penalty has been a part of the Indian legal system since the British colonial era. The Indian Penal Code, 1860 which was enacted by the British regime, included provisions for capital punishment for certain crimes. After India gained its independence in 1947, Death Penalty continued to be a part of the Indian Justice System.
Controversy surrounding Death Penalty
The death penalty is given in the matters of heinous crimes. Major arguments against the death penalty focus on its humanitarian grounds (inhumaneness). Theorists argue that no person should be given the death penalty given how inhumane and heinous the crime is. It includes irreversibility when a person is dead he/she can not be brought back to life. Most of the arguments are based on opinion unsupported by facts.
Capital Punishment in India
A careful study of debates in British India’s Legislative Assembly reveals that there were no issues raised about Death Penalty in the assembly until 1931. One of the members of Bihar, Shri Gaya Prasad Singh fought to introduce a bill to abolish the punishment of death for the offences under Indian Penal Code. However the motion of abolishing the death penalty was denied.
During the time of Independence, India retained several laws put in place by the British government, including the Code of Criminal Procedure (CrPc), 1898 and the Indian Penal Code (IPC), 1860.
The Indian Penal Code (IPC) described 6 punishments that could be imposed under the law including death penalty.
For offences where the death penalty was an option, Section 367(5) of the CrPc,1898 the court was required to give proper reason for why has the court decided to impose a sentence of death:
If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgement state the reason why the sentence of death was not passed.
In 1955, the Parliament repealed Section 367(5) from CrPc altering the position of the death sentence. The death penalty was no longer the norm, the court was not required to provide special reasons why death penalty is not being implemented in the cases where capital punishment is prescribed.
Changes were made in Section 354(3), when CrPc was re-enacted in 1973:
When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgement shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
Modification in Section 354(3) was a significant change.
Now the judges are required to provide reasons why they are imposing the death penalty on a guilty person.
Legal Framework
The Indian Constitution does not mention Death Penalty or Capital Punishment.
However, Article 21 guarantees the right to life and personal liberty to each and every person.
The Indian Penal Code (IPC) prescribes the death penalty for certain grave offences, notable among these are:
- Section 302 (Murder): It is most common crime attracting the death penalty in India
- Section 121 (Treason): Death penalty can be given if a person is waging war against the Government of India
- (Various sections of Terrorism): Acts of terrorism can result in death of the terrorist.
- NDPS Act (Drug Trafficking): In certain extreme cases of drug trafficking the death penalty can be given to the guilty.
Alternatives to Death Penalty or Capital Punishment
In India there are several alternatives to the death penalty that aim to balance the need to give justice and give respect for human rights and give potential for rehabilitation of the guilty. Here are some alternatives for death penalty:
- Life Imprisonment- Life imprisonment is an alternative to the death penalty which involves incarcerating the convicted person to live their life.
- Life Imprisonment without parole- Life Imprisonment without parole is a stricter form of life imprisonment, this sentence ensures that the guilty will spend the rest of their life in prison without any possibility of parole and will not be able to see the outside world for their whole life.
- Conditional Parole or release- In cases where the offender shows genuine remorse or good behaviour, the person will be released on conditions and parole can be granted. This involves strict conditions and supervision to ensure public safety in the society.
Case Studies
- Nirbhaya (Case 2012)
Details: The Delhi Gang rape and murder, commonly known as Nirbhaya case, involved a rape and fatal assault that occurred on December 16, 2012. The incident took place when Jyoti Singh a 22 yr old intern was beaten, gang raped, and tortured when she was travelling in a private bus with her male friend.
Outcomes: There were a total of 6 perpetrators involved in this heinous crime. Four of the accused were sentenced to death by court. The convicts were executed on March 20, 2020. One of the guilty died before the trial and Mohammed Afroz was sentenced to the maximum of three years in prison under Juvenile Justice Laws when the crime was committed.
- Yakub Memon (1993 Mumbai Blasts)
Details: Yakub Memon financially assisted his brother Tiger Memon and Dawood Ibrahim in planning and executing the 1993 bomb blasts.
Outcome: Justice P.D. Kode, in a terrorist and disruptive activities (prevention) act (TADA) court, found Memon guilty. Memon was executed at Nagpur Central Jail on 30 July, 2015 on his 53rd birthday.
- Ajmal Kasab (2008 Mumbai attacks)
Details: Mohammed Ajmal Amir Kasab was a Pakistani terrorist and a member of the terrorist organisation Lashkar-e-Taiba through which he took part in the 2008 Mumbai terrorist attacks, which killed around 166 citizens. Kasab was the only attacker who was caught alive by the police.
Outcomes: Kasab’s plea for clemency was rejected by the President Pranab Mukherjee on 5th November 2012. He was sentenced to death by a special court, a verdict upheld by the Supreme Court. Kasab was executed on November 21, 2012. At 7:30am in Yerawada Central Jail, Pune, Maharashtra, India
- Auto Shankar (serial murders, 1998)
Details: Gowri Shankar known as Auto Shankar, was an Indian criminal, murder from Tamil Nadu. Auto Shankar was convicted for the abduction and murder of 6 teenage boys in Tamil Nadu.
Outcome: He was sentenced to death and was executed in 1995 in Salem Central Prison, Salem, Tamil Nadu, India.
There are several cases where the death penalty in India was given. Death Penalty in India is often reserved for crimes that are considered exceptionally heinous, where it is necessary to serve the ends of justice and deter future crimes in the country.
Conclusion
The death penalty in India remains a contentious issue, balancing between the need for justice and the respect for human rights. Death Penalty is reserved for “rarest of the rare” cases, involving the crimes that shook the whole society.
Reference
Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp. 17-18.
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.38-39
