By Kshitij Sethi, 3rd Law Student, Pam Manohar Lohiya National Law University, Lucknow
In recent years, capital punishment has become a very burning issue not only in India but also all over the world. Whether this punishment should be retained in statutes or be abolished is being debated all around the world. Many countries have already abolished this severe punishment from their legal system but still some countries have it in their legislation. International laws and standards pertaining to death penalty are clear on this issue and state that death penalty can only be imposed after exacting legal standards.
In India, this issue is a very highlighted one. The debate is still going on whether death punishment should be retained in Indian legislation or it should be abolished. So, through this article, I have tried to find out whether the circumstances are favourable in India for total abolition of this punishment, or seeing the Indian circumstances, it is necessary to have this punishment in the statutes.
As far as India is concerned, the provisions relating to capital punishment are embodied in Indian Penal Code and Criminal Procedure Code. The Indian Penal Code is the substantive law, which suggests the offences, which are punishable with death sentence. Criminal Procedure Code is the procedural law, which explains the procedure to be followed in death penalty cases. In the present scenario, when 140 countries have abolished death penalty, it is need of the hour in India to do the same, but not entirely or immediately.
International Provisions on Death Penalty
Approximately one hundred and forty countries have abolished the death penalty in law or in practice. The international laws and standards pertaining to the death penalty are clear on this issue and state that death penalty can only be imposed after exacting legal standards. This trend towards abolition is evident in the developments in international law which have limited the scope of the death penalty by restricting the nature of crimes for which it can be implemented, limiting the manner in which it carried out, and introducing procedural safeguards. Recent political commitments on the international stage, such as growing support for the UN Assembly resolutions on a moratorium on executions, reaffirm this trend.
Now, there is a clear trend towards abolition in international law and state practices across the globe. International legal norms have evolved to restrict the lawful use of capital punishment in a very narrow variety of cases, and in a very limited manner. Various declarations and treaties such as Universal Declaration of Human Rights (1948) have been engaged in.
The Indian Penal Code, 1860, contains a number of specific provisions where punishment of death exists, namely,“section 121 (waging war, etc. against the Government of India), section 132 (abetment of mutiny by a member of armed forces), section 302 (Murder), section 303 (Murder by a person under sentence of imprisonment for life), section 305 (Abetment of suicide of child or insane person), section 396 (Dacoity with murder) etc. Certain other laws like the Narcotic Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities Prevention Act, 1967, the Navy Act, 1957, Army Act, 1950, Air Force Act, 1950, the Bombay Prohibition (Gujarat Amendment) Act, 2009, the Commission of Sati (Prevention) Act, 1987, the Defence of India Act, 1971, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Unlawful Activities Prevention Act, 1967 etc. also contain provisions for awarding death sentence.
“An eye for an eye will make the whole world blind,” said Mahatma Gandhi. An eye for an eye is the principle in which a person who has injured another person is penalized to a similar degree, or according to other interpretations, the victim receives the value of the injury in compensation. In the Indian legal framework, Indian Penal Code permits use of capital punishment for murder in“rarest of rare cases”. Section 302 of the Indian Penal Code says that whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
The death penalty, also known as capital punishment, is judicially ordered execution generally awarded to those guilty of heinous crimes, particularly murder and child rape. In the Indian system, the traditional way of awarding this punishment is “hanging by the neck” till the death of the criminal. In the above-mentioned categories of offences, the death sentence sets the upper limit of punitive strategies. The statutory provisions do not provide any guidelines as to when the judges should impose capital punishment in preference to imprisonment for life, or award lesser sentence of life imprisonment. The judiciary is allowed to exercise its discretion and reasoning in the adjudication process. It has to draw up a balance sheet of aggravating and mitigating circumstances from the facts of the case.
One of the foremost reasons for the abolition of death penalty is the ambiguity and lack of uniformity in what constitutes the “rarest of the rare cases”. But the exact definition of ‘rarest of the rare’ has not been laid down yet. Landmark case of Bachan Singh v. State of Punjab laid down the “rarest of rare” doctrine.
As a safeguard, Section 354(3) of the Code of Criminal Procedure which states that 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 the sentence of death, the special reasons for such sentence.
Recent trend in America is to restrict capital punishment only to the offence of murder and rape. The countries which have abolished capital punishment, notably, are Germany, Austria, Scandinavia, Netherlands, Denmark and some Latin American States, and they have reported no ill effects of abolition. India is still one such country where capital punishment is practiced even today. Long list of mercy petitions is pending before the President, some of them even from 1992, including Khalistan Liberation Force terrorist Davinder Singh Bhullar, the cases of slain forest brigand Veerappan’s four associates—Simon, Gnanprakasham, MeesekarMadaiah and Bilvendran, Praveen Kumar etc. Some of the recent cases in which capital punishment was given include those of Afzal Guru, Ajmal Kasab, Balwant Singh Rajoana, Nikka Singh etc.
The author would like to recommend the following suggestions on the basis of the research findings which may possibly help in forming an opinion regarding abolition or retention of death penalty in India:
In present circumstances, it would not be desirable to abolish death penalty immediately and totally. Death Penalty may be used as punishment, considering the nature of offence, security of state, public welfare or anticipated grave potential danger from dangerous criminals. However, mandatory death sentence must remain abolished and whenever death penalty is prescribed, it must be associated with imprisonment for life with a disjunctive ‘or’ so that either of the punishment may be imposed according to the discretion of the judge.
Currently the legal proceedings are too complicated and lengthy, the process moves slowly and the conviction rate is low. Hence, quick disposal of cases and immediate appropriate punishment is called for. The punishment of death must be proportionate to the nature and gravity of the offence and in the context of legislative judgment world-over, if we alone in India prescribe death penalty; it is likely to be judged being vulnerable as a punishment disproportionate to the nature and gravity of the offence.
Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is, death penalty. Retribution has its basis in religious values, which have historically maintained that it is proper to take an ‘eye for an eye’ and a life for a life. For the most cruel and heinous crimes, ones for which the death penalty is applied, offenders deserve the worst punishment under our system of law, and that is the death penalty. Any lesser punishment would undermine the value of society which protects the lives of the people. Death punishment is the highest form of punishment known to man. So, it has the maximum deterrent effect in general. By implementing this punishment, it becomes as a lesson to the remaining people of the society to deter before committing an offence of such nature.
On the basis of ultimate analysis, it is clear that from the angle of social justice and protection of society from hard-core criminals, death sentence is not unreasonable type of punishment. The death penalty is no doubt unconstitutional if imposed arbitrarily, capriciously, unreasonably, discriminatorily, freakishly or wantonly, but if it is administered rationally, objectively and judiciously, it will enhance people’s confidence in criminal justice system.
Thus, on the basis of the aforesaid discussion in this article, the author has come to the conclusion that in the present circumstances of the country, it is required to retain death penalty in the rarest of the rare cases, given that, firstly, proper guidelines as to what constitutes ‘rarest of the rare’ are laid down, secondly, the legislation and judgments must practise restraint in awarding such punishment since the time is not far for this nation to completely phase off this provision of capital punishment like nations have.