CAPITAL PUNISHMENT UNDER CRIMINAL JURISPRUDENCE: A CRITICAL STUDY
By Chaitanya Sharma
National Forensic Sciences University, Delhi. Email: sharmac2005@gmail.com.
ABSTRACT
Capital punishment is one of the punishments which is prescribed by our criminal justice system. Till December 2023, the Indian judiciary has sentenced 1,303 people with death penalty[1] and 561 Indians are on the death row and only 8 have been executed in last 21 years[2]. It is very much important to have capital punishment in our criminal justice because it creates a fear in mind of criminal to not commit crime in the society. Capital punishment is the most severe form of punishment which any law can have as its remedy as capital punishment takes away the life of the offender and it must be used very cautiously as decision will take someone life and it can’t be undo. Proper investigation and procedure must be followed to initiate capital punishment.
Keywords- Capital punishment, Death penalty, Punishment, Criminal Justice System etc.
I. INTRODUCTION
The term “capital punishment” means most severe form of punishment that is awarded for most heinous, grievous crimes. The term usage in criminology, penology and jurisprudence means “death sentence”. The concept of capital punishment is based on the Retributive theory of punishment which means equal punishment is awarded that offender has given to the victim. Capital punishment is awarded to the offender to create fear in the society and making offenders afraid to commit the offence. The capital punishment is awarded under the Indian Penal Code,1860. In India the capital punishment is awarded by hanging the offender till death.
The recent case where death penalty was awarded is Nirbhaya rape case where the four convicts were hanged on 20th March 2020[3]. Secondly, Terrorist Yakub Menon[4] who was convicted for terrorism in Mumbai blast case of 1993 was hanged on 30th July, 2015. Thirdly, Muhammad Afzal[5] who was convicted for plotting the 2001 attack on parliament was hanged till death. Fourthly Mohammad Ajmal Amir Kasab[6] who was sentenced to death in Mumbai Terror Attack of 2008 was hanged in November 2012. Finally, Dhananjoy Chatterjee[7] was hanged in 2004 convicted for the rape and murder of a teen girl.
The capital punishment included capital crimes such as aggravated murders, mass murder, aggravated cases of rape, terrorism, hijacking, crime against state such as waging war against state, sedition etc. offenders were awarded death penalty only when they met the criteria of “Rarest of rare doctrine”[8].
II. ORIGIN OF CAPITAL PUNISHMENT
The capital punishment finds its origin from very ancient period where kings made the offender hanged for the crime he has committed. In the 18th century B.C, the code of king Hammurabi of Babylon codified the death penalty for twenty-five different offences. In the tenth century A.D., hanging was the usual method to execute capital punishment. Under the reign of Henry VIII, more than 72000 people were awarded capital punishment and common methods to execute the punishment were boiling, hanging, burning at the stake, beheading etc. In Britain due to severity of capital punishment juries usually acquit the defendant if the crime was not serious. This led to the reform of the Britain’s capital punishment. From 1823 to 1837, the death penalty was removed for over 100 of the 222 crimes punishable by death.[9]
III. HISTORY OF CAPITAL PUNISHMENT
The capital punishment is there in Indian judicial system since colonial period. Indians were always in favour of abolishing the capital punishment as it was used against Indians as they were awarded capital punishment without fair trial and there are instances where before trial only, they were executed.
The drafters of IPC[10] viewed that capital punishment should be used parsimoniously.[11] Before the amendment which was brought in Cr.P.C[12] of 1898 it was compulsory for the hon’ble court to give reasons for not awarding the death sentence to the convict in the murder case. The amendment in 1955 did away with this obligation of recording reason for not awarding death sentence to the convict. Under new Cr.P.C[13] the new rule was to record reason for awarding death penalty for a murder convict. It is now evident that the amendments in the Cr.P.C regarding capital punishment were relaxed and were done in favour of the convicted person.
Supreme court in its various judgements has preferred life imprisonment but at the same juncture supreme court also held capital punishment as constitutionally valid. During the drafting of the constitution point was raised to abolish the capital punishment it was contended that capital punishment existence would prevent people from committing offences where the death penalty or capital punishment is awarded.
The inception of capital punishment in India can be traced to Benthamite codification period of the 19th century that is IPC[14] and Cr.P.C[15].“Around ten offences under the IPC[16] prescribe capital punishment and the same so far remains un-amended”[17]
The case of Nathuram Godse[18] is regarded as the first case in history of independent India where the doctrine of Rarest of rare is used and after the trial, Justice Amarnath held Nathuram Godse guilty of murdering Mahatma Gadhi and awarded him death penalty which was later on confirmed by the three judges’ bench of Punjab High court.
The section 354(3) of Criminal Procedure Code,1973[19] is there to justify whether the judgement is in support of or against award of capital punishment. The like-minded people who support abolitionist see this section as green flag for diluting capital punishment whereas people with the view point of retentionist see this as death penalty is constitutionally valid.
In the case of Kunjukunju Janardhanan v. State of A.P.[20] hon’ble supreme court commuted the death sentence to life imprisonment by majority of 2:1. Justice Krishna Iyer of hon’ble supreme court of India in case of Rajendra Prasad v. State of U. P[21], held “that where the murder is deliberate, premeditated, coldblooded and gruesome”[22] and there are no extenuating circumstances, the offender must be sentenced to death as a measure of social defence[23].
The ruling of Rajendra Prasad v. State of U. P[24] was followed in two more cases which were decided by hon’ble supreme court of India Guruswamy v. State of T. N[25]. and Dalbir Singh v. state of Punjab[26] .After one year the hon’ble supreme court in Bachan Singh v. State of Punjab[27] by a majority of 4:1, expressed that capital punishment is not violative of Article 14[28],19[29],21[30] of Constitution of India which were previously condemned by Justice Krishna Iyer in Rajendra Prasad[31].
IV. ORIGIN OF THE DOCTRINE RAREST OF RARE
This doctrine is introduced by hon’ble Supreme court of India in its landmark judgement in Bacchan Singh v. State of Punjab[32] which led to the inception of this doctrine. In this particular case by a majority of 4:1, the constitutionality of capital punishment was upheld by hon’ble supreme court but with a rule that death penalty will impose in the rarest of rare cases but the hon’ble supreme court didn’t defined or limited the scope of ‘Rarest of rare’ which was quoted by hon’ble supreme court in their judgement.
In the case of Machhi Singh v. State of Punjab[33] the hon’ble supreme court tried to set rules for classifying the offences fall under the ambit of the doctrine of ‘Rarest of rare’ and also classified the mitigating circumstances which should be taken into consideration while deciding the serious cases.
Hon’ble Justice Thakkar speaking for the Court held that there are five categories of cases that may be regarded as rarest of rare cases, where the death penalty or capital punishment could be awarded[34]
1. The manner in which murder is committed — When the manner of the commission of the crime is grievous. For example – burning alive.
2. The intention of the offender— When the murder is committed for selfish reasons. For example - for issues related to property.
3. Offense considered as anti-social— When the offense committed is anti-social in its nature. For example - burning the bride alive for dowry.
4. The number of crimes committed — When the crime committed involves a variety of offences including murder. For example- Robbery along with the murder of several members of the same family.
5. The personality of the victim — when the victim is a renowned personality, a child, or an elderly person.
In the above-mentioned case of Machhi Singh v. State of Punjab[35] the hon’ble supreme court also held section 303 of IPC[36] which provides “compulsory death penalty for an individual who commits murder while he is serving for life imprisonment” to be unconstitutional. This section was inserted by the British to save the jail staff from the Indian freedom fighters as some cases were reported where jail inmates tried to murder the jail officials and staff.
Finally in the case of Prajeet Kumar Singh v. State of Bihar[37] the hon’ble supreme court defined and governed what might comprise a rarest of rare case.
In the case of T.V. Vatheeswaran v. State of Tamil Nadu[38] the hon’ble supreme court held that if there is a delay of more than two years in execution of a death penalty the convicted person can invoke Article 21[39] of Constitution of India and request the quashing of the death penalty.
V. CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT IN INDIA
Capital punishment in India has been prevailing from time immemorial. “India is one of the 78 countries which have retained capital punishment and the same is awarded for rarest of rare cases and for special reasons”[40]. The constitutionality of capital punishment is challenged by several abolitionist contending that capital punishment is violative of Article 14, 19, and 21[41]. The Indian criminal justice system is based on two theories of punishment i.e., reformative and deterrent theory.
In the case of Jagmohan Singh v. the State of U.P.[42] the five (5) judges’ bench of hon’ble supreme court by a unanimous verdict upheld the constitutional validity of capital punishment and held that death penalty is not violative of Article 14, 19, and 21[43]. It was also observed that the hon’ble judges make choice between capital punishment and life imprisonment on the basis of circumstances, facts and nature of crime and therefore, it was held by hon’ble supreme court “death sentence imposed after the trial in accordance with the procedure established by law is not unconstitutional under Article 21.”[44]
Article 21 of Constitution of India[45] guarantees the right to life and personal liberty but it is not absolute. In the case of Maneka Gandhi v.Union of India [46] the hon’ble supreme court held that state may take away or curtail certain right in name of law but the process must be “Due procedure” established by law as it takes away human being life and it must free from biasness and must be free and reasonable. But capital punishment is not awarded easily it is the last resort the court of law can have and judges give death penalty only in very heinous crimes or the cases which fall in the category of “Rarest of rare” which was originated from the case name Bacchan Singh v. State of Punjab[47]
The Indian Criminal Justice System is based on the principle of “Innocent until proven guilty” and when any serious case come in front of hon’ble court of law it is being closely watched by public as well as international organizations and moguls.
In the case of Sher Singh v. State of Punjab[48] Justice Sarkaria in his judgement said that “I fail to see why so much importance is given to life of someone who had been found guilty of a heinous offence when the interests of the society demand that death penalty should be awarded to him” and in another case of Triveniben v. State of Gujarat[49]the hon’ble court asserted that the constitution doesn’t prohibit death sentences and upheld the constitutional validity of capital punishment.
VI. CONCLUSION
Capital punishment is a very controversial topic as some strata of society is in favour of it which are called as retentionist and other strata of society is there which are in favour of removing capital punishment are called abolitionist. More than 70 percent of countries has abolished capital punishment in law or practice. The U.S. remains an outlier among its close allies and other democracies in its continued application of the death penalty[50]. The contention of these countries who abolished capital punishment is that capital punishment violates right to life and liberty[51]. According to my point of view it would be right to punish the offender of a heinous crime as it would create a deterrence for future offenders. The right to life and liberty[52] is not an absolute right and it can be taken away by procedure established by law.
The constitution of India provides remedies such as right to legal aid and Article 20[53] to the offenders. The capital punishment is very important in our country like India with such a huge population as it creates a fear in mind of offenders that their life can be taken if they will commit any heinous crime. No leniency should be shown towards the offender who has not valued the life of the victim and integrity of his nation. The Nirbhaya case[54] has made the country ashamed in front of whole world and the offenders who has committed that level heinous crime should have only one punishment which is Death.
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[1] 561 Inmates on Death Row in India, Highest in 20 Years: Report' (Hindustan Times, 14 October 2023) https://www.hindustantimes.com/india-news/561-inmates-on-death-row-in-india-highest-in-20-years-report-101707653878077.html accessed 21 October 2024.
[2]Project 39A, Annual Statistics Report 2023 (Project 39A, 2023) https://www.project39a.com/annual-statistics-report-2023 accessed 21 October 2024.
[3] Mukesh v. State for NCT of Delhi, (2017) 6 SCC 1
[4] Yakub Abdul Razak Memon v. State of Maharashtra Writ Petition (Cri) No. 129 SC, 2015
[5] State v. Mohd Afzal, (2003) 71 DRJ 178
[6] Md Ajmal Md Amir Kasab @ Abu v. State of Maharashtra, (2012) 9 SCC 1
[7] 1994 SCR (1) 37, 1994 SCC (2) 220
[8] Bacchan Singh v. State of Punjab, (1980) 2 SCC 684: AIR 1980 SC 898
[9] Early History of the Death Penalty | Death Penalty Information Centre
[10] Indian Penal code,1860
[11] The penal code provides for the imposition of capital punishment in several sections such as sections 121,132, para 2 of Sections 194, 302, 305, para 2 of sections 307 and 396.
[12] Criminal Procedure Code,1973
[13] Criminal Procedure Code,1973
[14] Indian Penal Code,1869
[15] Criminal Procedure Code,1898
[16] Indian Penal Code,1860
[17] Chaitanya Shah, ‘Capital Punishment in Indian Legal History’ (2020) 6 (4) International Journal of Legal Developments and Allied Issues, 111
[18] Nathu Ram Godse v. Crown, 1949 Cri LJ 834.
[19] 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 judgment shall state the reasons for the sentence awarded, and, in the
case of sentence of death, the special reasons for such sentence.
[20] Criminal Appeal No. 511 of 1978 disposed of along with Rajendra Prasad case, (1979) 3 SCC 646: AIR 1979 SC 916.
[21] (1979) 3 SCC 646: AIR 1979 SC 916
[22] Hari Har Singh v. State of U.P., (1975) 4 SCC 148: AIR 1975 SC 1501
[23] Sarveshwar Prasad Sharma v. State of M.P., (1977) 4 SCC 322: AIR 1977 SC 2423.
[24] (1979) 3 SCC 646: AIR 1979 SC 916
[25] (1979) 3 SCC 797: AIR 1979 SC 1177.
[26] (1979) 3 SCC 745: AIR 1979 SC 1384.
[27] (1980) 2 SCC 684: AIR 1980 SC 898
[28] The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
[29] . Protection of certain rights regarding freedom of speech, etc.— (1) All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions 2 [or co-operative societies]; (d) to move freely throughout the territory of India;
[30] Protection of life and personal liberty. —No person shall be deprived of his life or personal liberty except according to procedure established by law.
[31] (1979) 3 SCC 646: AIR 1979 SC 916
[32] (1980) 2 SCC 684: AIR 1980 SC 898
[33] (1983) 3 SCR 413
[34] Raashi Vaishya, ‘The Doctrine of Rarest of The Rare’ (Legal Service India)
<https://www.legalserviceindia.com/legal/article-726-the-doctrine-of-rarest-of-the-rare.html>
[35] (1983) 3 SCR 413
[36] Indian Penal Code,1860
[37] Prajeet Kumar Singh v. State of Bihar Appeal (Crl) 1621 of 2007 (SC)
[38] TV Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68: AIR 1983 SC 361 (India)
[39] Protection of life and personal liberty. —No person shall be deprived of his life or personal liberty except according to procedure established by law.
[40] Tatheer Fatima, ‘Constitutionality of Death Penalty’ (Indian National Bar Association)
<https://www.indianbarassociation.org/constitutionality-of-death-penalty/#:˜ :
text=In%20Jagmohan%20Singh%20vs.,14%2C%2019%20and%2021%20and%20>
[41] Constitution of India, art. 14, 19, and 21
[42] (1973) 1 SCC 20: AIR 1973 SC 947
[43] Constitution of India,1950
[44] Tatheer Fatima (n.37)
[45] Protection of life and personal liberty. —No person shall be deprived of his life or personal liberty except according to procedure established by law
[46] [1978] 2 SCR 621
[47] (1980) 2 SCC 684 : AIR 1980 SC 898
[48] AIR 1983 SC 365
[49] (1988) 4 SCC 574 : AIR 1989 SC 142
[50] International | Death Penalty Information Centre
[51] Article 21 of Constitution of India,1950
[52] Article 21(n.50)
[53] Protection in respect of conviction for offences. — (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself.
[54] Mukesh v. State for NCT of Delhi, (2017) 6 SCC 1