THE CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT

          THE CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT

        Author: Bhupesh Sharma, Student of Department of Law, Kurukshetra University, Kurukshetra.

“NO ACTUAL PUNISHMENT CAN DETER A PERSON FORM COMMITTING CRIME THAN DEATH PENALTY” , By Sir James Stephen.

Introduction

In India Capital Punishment, also known as death penalty.  is always been a debatable subject matter, the constitutional validity of death penalty was challenged in the apex court as violate of Article 19 and 21 in the number of cases. In India it was firstly challenged in the case of Jagmohan Singh v. State of Uttar Pradesh in the year 1973 and as of now the punishment of death penalty is awarded in the rarest of rare cases as decided in the case of Bachan Singh vs. State of Punjab, AIR 1980 SC 898. Most of the countries in the world has now abandoned the use of the death penalty however, the world has not formed a consensus against its use for the time being. India is one of the nations in the world that have neither totally abolished the punishment of death penalty nor passed any statutory legislation that highlights the validity or legality of death penalty or capital punishment. At present around eighty-four countries retain the use of capital punishment. However, the number of countries employing the death penalty is consistently reducing and it is also possible that worldwide opinion and pressure will gradually influence all the countries to abandon the practice of Capital Punishment. In this article we will discuss tin detail about this punishment.

Historical Background of Capital Punishment

The concept of Capital Punishment is as old as the civilization itself. This has been used as a retributive punishment. About 3700 years ago, the penalty of death was prescribed in Babylon. Some ancient societies have prescribed this punishment for only serious offences and on the other hand some have prescribed this for every offence.

In Greece, under Draconian law all the offences were punishable with death Penalty. In the Anglo American law the it has been a customary response to certain kinds of crimes. Even the Bible prescribes death penalty for the offence of murder and many other crimes such as kidnapping and witchcraft.

Earlier the death penalty was executed in various ways including shooting, burning, drowning and many more, and at that time the concept of public hanging was prevalent. Public hanging serves twofold objectives firstly, it creates the deterrence among the criminals and secondly, it gives satisfaction to the victim and his family members of getting justice but later public hanging was condemned by various organizations such as UNO, Human Rights Committee.

Capital Punishment in India

In 1947 when India got independence, India retained the Indian Penal Code of 1860 in which death penalty was provided for the offence of murder.At the time of drafting of the Indian Constitution between 1947 and 1949, some members of the Constituent Assembly expressed the idea of abolishing the capital punishment, but no such provision was incorporated in the Constitution. Private members introduced the bills in both houses of parliament over the next two decades to abolish the capital punishment, but none of them was adopted. It has been estimated that around 3000 to 4000 executions occurred between the period of 1950 to 1980. It is harder to measure the numbers of persons sentenced to death and executed from 1980 to the mid- 1990s It is estimated that two or three persons were hanged per year. From 1990 to 2004 no execution was took place but then in 2004, a security guard was hanged for committing rape and murder of a 14 year old girl. In 2005, this number increased to 12 and as of now approximately 403 persons have been awarded and executed with the capital punishment. Last execution was done in march 2020 of four culprits of  Delhi gang rape and murder culprits.

Offences Punishable with Capital Punishment

The criminal justice system of India is based on various theories of punishment which include retributive theory, deterrent theory, preventive theory and now Indian is moving towards the reformative theory of punishment. Death penalty has been a hardest punishment that is given to an accused and at the same time courts in India also have to follow the principles of natural justice while giving any punishment to an accused and because of that while giving death penalty to an accused judges are duty bound to record the reasons while giving death penalty. The legislations that provides for capital punishment are illustrated below:

1. Indian Penal Code, 1860

• Section-121: This section provides that Anyone whoever wages war or attempts to wage war against India may be sentenced to death.
• Section-132: As per this section whoever abets to the commission of a mutiny by an officer, soldier, sailor, or pilot in the army, navy, or air force of the Indian government and mutiny will be committed as a result of that complicity, may be punished with death penalty.
• Section-194:  If any evidence has been fabricated in order to obtain a capital conviction for an offence. Such person may be punished with death penalty.
• Section-302: Any person who commits murder may be punished with death penalty.
• Section-305: This section deals with punishment for assisting or supporting any minor child or an mentally disabled person in committing suicide and as a result he commits suicide now such person can face the punishment of death penalty.
• Section-364A: Anyone who commits the offence of Kidnapping for ransom or for any other purposes is a serious offence punishable with death.
• Section-396: Any person who commits dacoity with murder may be punished with death penalty.
• Section-376A:  This section specifies the punishment of death penalty for the offence of rape which results in death or a permanent vegetative state of the victim. 
• Section-376E: This section specifies death penalty for the repeated rape offenders.

1. The commission of Sati {Prevention} act 1987

As per this act, any person who is involved in the commission of Sati whether directly or indirectly may be punished with death penalty under this act.

2. Narcotic Drugs and Psychotropic Substances act {NDPS}, 1985

As per Section-31A of this act, the punishment of death penalty may be awarded for providing financial help or taking part in the production or sale of any kind of narcotics or psychoactive substances at a predetermined price (e.g., opium 10 kg, cocaine 500 grammes).

3. The Scheduled Castes and Scheduled tribes {Prevention of Atrocities} act {SC/ST}, 1989

Any person who forges any evidence that leads to the conviction and execution of an innocent member of a scheduled caste or tribe may be punishable with death penalty under this act.

4. Army Act, 1950; Air Force Act, 1950 and Navy Act, 1957

Some of the offences committed by the members of the military forces under the military laws may also be punishable with death penalty.

Offenders Exempted from Capital Punishment

 Some categories of persons who are exempted from criminal liability are illustrated below:

1. Minors
2. Pregnant woman
3. Intellectual Disabled Persons

Courts authorized to give Capital Punishment

1. High Court
2. Sessions Court. Subject to the ratification by the High Court under section-366 of the code of criminal Procedure, 1973.

Execution Procedure in India

1. Hanging

As per section-354{5} of the code of criminal procedure,1973, Hanging was the method of execution of death penalty in the civilian court system and that it is the only method which is permitted for the execution of death penalty in the criminal justice system in India.

2. Shooting

Another method of executing death penalty which is used India is shooting. However this method is used by only Army, Air Force, and Naval forces. As per the Army Act of 1950, the army court-martial system recognizes both hanging and shooting as legitimate ways of executing death penalty.

Constitutionality of Capital Punishment

Article 14, 19 and 21 of the Indian Constitution provide the most crucial fundamental rights to the citizens of India which includes right to live with human dignity. Now the question arises that whether these rights are absolute? The answer is no as sate has power to limit these rights to maintain law and order in the society provided that the restrictions must be imposed as per the procedure established by the law. The hon’ble supreme court held in the case of Maneka Gandhi vs. Union of India {1978}, that the procedure of the law must be due as it takes away a person’s sacred life and also must be fair, reasonable, and unbiased.

India is one among the 78 nations that have retained the punishment of death penalty in its criminal justice system. Moreover, ‘rarest of the rare’ and ‘special reasons’ are the two grounds for imposing the death penalty in India.

The constitutional validity of the Capital Punishment has been challenged in the number of cases by the apex court. In the case of Machhi Singh & ors vs. state of Punjab {AIR 1983 SC 95}, The Hon’ble Supreme Court has issued the directions to the courts that need to be kept in mind while deciding the sentence to be awarded in murder cases.

In the case of Mithu vs. The State of Punjab {AIR 1983 SC 473}, the full bench of the Supreme Court in its full judge Bench, declared Section 303 of the IPC as unconstitutional and violative of Article 14 and 21 of the Constitution.

In the case of Rajendra Prasad vs. The state of U.P. {AIR 1979 SC 916}, the Hon’ble Supreme Court held that the capital punishment would be inappropriate unless it has been proved in the Court that the defendant poses an ongoing serious risk to social security. In the opinion of Justice Krishna Lyer, three types of criminals should get the death penalty which include, white collar crimes, to eliminate a dangerous killer who may cause serious harm to the society, and for crimes against social disorder. The top Court then ordered that the death penalty imposed on an accused for a murder conviction under Section 302 of the Indian Penal Code,1860 did not violate the basic feature of the Constitution.

Later on, the full judge bench of the apex court in the case of Bachan Singh vs. the state of Punjab {AIR 1980 SC 898}, reversed the judgment delivered in the Rajendra Prasad case by a majority of 4:1 and ruled that the capital punishment is reasonable, therefore it can be construed that it does not violate Articles 14, 19 and 21 of the Constitution. In this case Majority opinion of the bench ruled that the principle of awarding capital punishment is applicable only in ‘rarest of rare cases.

Conclusion

The matter of awarding Capital Punishment is a debatable topic. Many countries has already abolished this concept however, India is one of those countries which neither completely abolished this concept nor fully adopted this concept. It’s constitutional validity has also been challenged as violative of Article 21 and even its execution by hanging also was also condemned by the human rights activist. However, after the decision of the Apex Court in the Bachan Singh’s case, Capital Punishment is given only in the rarest of rare cases. It can be said that death penalty is punitive in nature but at the same time it is also against the humanity. There are various other punishments such as life imprisonment, rigorous imprisonment, solitary confinement and many more that can be awarded rather than awarding with Capital Punishment.