capital punishment in India

1. CAPITAL PUNISHMENT IN INDIA

2. Introduction • Capital punishment is an integral part of Indian Criminal Justice System. The central government has consistently maintained it would keep the death penalty in the statue books to act as a deterrent, and for those who are a threat to society, the Hon’ble Supreme Court too has upheld the constitutional validity of capital punishment in “ rarest of rare” cases. • The constitutional regulation of capital punishment attempted in Bachan Singh vs State of Punjab in 1980 has failed to prevent death sentences from being arbitrarily and freakishly imposed. With the advent of death penalty, comes plethora of challenges attached to it, as individuals are protected from the arbitrary and excessive powers of the state by the statues. Also serious challenges to the retention and administration of the death penalty in India have restricted its use to “exceptional cases”. There is wide variance in understanding of the “rarest of rare” doctrine based predominantly on the nature of the crime.

3. Meaning of capital punishment • Capital punishment means, execution of an offender sentenced to death after conviction by at the Apex court for the criminal offences which are most heinous, grievous and detestable crimes against humanity. It is an integral part of Indian Criminal Justice System. • Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. • Now the question arises whether the kind of punishment discussed above i.e. capital punishment , whether this kind of punishment is moral or not i.e. people should be awarded for capital punishment is still a question • as we know that a good numbers of countries had already abolished capital punishment but India is still among those countries where it is still prevailing so the question arises whether such type of punishment for a crime be awarded for such grievous offences such as rape etc. Or should be abolished like other countries did.

4. Legal provisions • According to Article 21 of Indian Constitution – “No person shall be deprived of his life or his personal liberty except according to procedure established by law” Various statutes in India deal with criminal law have laid down provisions relating to death penalty. India retained the death penalty as one of the punishments in the Indian Penal Code, 1860 (IPC) after independence. • Death penalty is also prescribed in special or local laws for various offences. Presently, death penalty is provided under the IPC for various offences such as Section 121, Section 132, Section 194, Section 195A, Section 302, Section 305, Section 307(2), Section 364A, Section 396, Section 376E, and Section 376A. • Only the president has the power to confer mercy in cases related to death sentences. Once a convict has been sentenced to death in a case by the Sessions Court, it must be confirmed by the High Court. If the appeal to the Supreme Court made by the convict fails then he may submit a ‘mercy petition’ to the President of India. • Under Article 72 of the Constitution of India, the President has the power to grant pardon, reprieves, respites or remissions of punishment or to suspend, remit or reduce the sentence of any person who has been convicted of an offence.

5. What are the Death Penalty crimes? The crimes and offences which are punishable by death are: • Aggravated murder-It is punishable by death in accordance with Section 302 of the Indian Penal Code, 1860. • Terrorism-related offences not resulting in death-Muhammad Afzal was executed by hanging on 9th February 2013. • Rape not resulting in death-A person who inflicts injury in a sexual assault which results in death or is left in a “persistent vegetative state” may be punished with death under the Criminal Law Act, 2013. • Other offences resulting in death-In the Indian Penal Code, the death penalty is given to a person who commits murder during an armed robbery. • Military offences not resulting in death-Abetment of assault, mutiny or attempting to seduce airman, soldier, the sailor from his duty and various other offences are punishable by death if committed by a member of the Army or Navy or Air Force. and many more such crimes stated above.

6. Case laws The courts generally have to evaluate the facts in order to identify whether the case presents situation calling for death penalty or life imprisonment. The court may reduce punishment from death penalty to life imprisonment. If case fall in rarest of rare case than the death penalty may be awarded by court of law in India so concerned. #1 Dhananjay Chatterjee versus State of west Bengal[(1994) 2 SCC p.220]– • This is the case of Rape and Murder from trial court of Supreme court was agree that this is rarest of rare case and court impose Death Penalty in this case. Dhananjay Chatterjee was the first person who was judicially executed in India in the 21st century for murder. The execution byhanging took place in Alipore Jail, Kolkata, on 14 August 2004.  • He was charged in 1990 for the crimes of rape and murder of Hetal Parekh, a 15-year-old school-girl. The execution stirred up public debates and attracted immense attention from media. Dhananjay was convicted and hanged. This was the first hanging in West Bengal since 21 August 1991 at Alipore Jail

7. #2 Bachan Singh and Machhi Singh versus State of Punjab [AIR 1980 SC 898] This is the reference to the Constitution Bench which raises a question in regard to the constitutional validity of the death penalty for murder provided in Section 302, of Indian penal code, and with the sentencing procedure which is embodied in the subsection (3) of sec. 354 of the CRPC., The reference that has arisen in the following circumstances: The Appellant in the Criminal Appeal, was tried and convicted and later was sentenced to death under Section 302 of the Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge there . The High Court thus confirmed his death sentence and dismissed his appeal. Bachan Singh’s appeal by special leave, came up for hearing before a Bench of this Court (consisting of Sarkaria and Kailasam, JJ.). The only question for the consideration in the appeal was, whether the facts that were found by the courts below would be “special reasons” for awarding the death sentence as required under sec. 354 (3) of the Code of Criminal Procedure, 1973

8. #3 Surendra pal Shivbalakapal versus State of Gujarat The appellant was staying in one of the rooms of the building that was owned by the complaint, Kavalpati, a widow who was having three children. On 11-09-2002 at 10 p.m. he came to her and offered Rs. 150 for sexual favours. She got angry for the same and asked him to go . During that night, she along with her two minor daughters was sleeping in her room. At 1 a.m. she found that her daughter Savitri was missing and her dead body was found in the pond. The trial court found that accused guilty for the offence punishable under section 363,376 and 302 of IPC. He was sentenced to death and later it was confirmed by the high Court and Supreme Court also agreed on the same about the finding of guilt but the sentence of death was commuted to life imprisonment on the ground that the case did not belong to rarest of rare case…

9. Recent recommendation of the law commission of India • Shying away from the blanket ban on the capital punishment, the Law Commission is likely to recommend “gradual” abolish in all the cases, except for those related to terror ones. According to our ancient legal system it was mentioned that, capital punishment should be avoided even for the greatest offences committed, unless the guilty was a traitor who had indulged in any activity dangerous to the security of the state. • The Law Commission of India recently received a reference from the Supreme Court in Santosh Kumar Bariyar versus Maharashtra [(2009) 6 SCC 498] and Shankar KisanraoKhade versus Maharashtra [(2013)5 SCC 546] cases, to study the issue of the death penalty in Indian to “allow for an up-to-date and informed discussion and debate on the subject.” That Report recommended the retention of the death penalty in India. • The Supreme Court had also, in the Bachan Singh versus Union of India (AIR 1980 SC 898) case, upheld the constitutionality of the capital punishment. However, the social, economic and cultural contexts of the country have changed drastically since its 35 report. years since the foremost precedent on the issue was laid down, Commission says that, the death penalty does not serve the penological goal of the deterrence much more than the life Imprisonment.

10. conclusion • The death penalty is impossible to administer fairly or rationally. The supreme court has reportedly admitted that it has arbitrary imposed this extreme punishment. The law commission of India in its 262nd report, recommended that capital punishment or death penalty be abolished for all crimes except terrorism related offences and waging war. • Although there is no valid penological justification for treating terrorism differently from other crimes, concern is raised that abolition of death penalty for terrorism-related offences, will affect national security. However, given the concerns raised by the law makers, the Commission did not see any reason to wait any longer to take the first step towards abolition of the capital punishment for all the offences other than terrorism related offences. It is the hope that India too soon joins the abolishment of capital punishment drives by nations and does away with it. • It is a controversial topic which is related to the both social and moral aspect of the society. The Court expanded the range of “alternative options” to be exhausted before the death sentence was chosen and the Supreme Court ruled in favour of the conviction in the case of Bachan Singh. By retaining the death penalty, we may execute someone to death who turns out to be innocent and that would totally be not respected.

11. Thank you