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Chetan Anand Mohapatra
National Law University and Judicial Academy, Assam
&
Darshee Madhukallya
National Law University and Judicial Academy, Assam
INTRODUCTION
Death penalty has always been an issue of debate in India. Earlier it was a rule and life imprisonment was an exception but after 1947, when India became a democratic state death penalty has turned out to be an exception. It is the highest degree of punishment. In India, it is handed out by the method of hanging by the neck. Section 53 of the Indian Penal Code (IPC), 1860 provides for a death sentence and Section 368 of the Code of Criminal Procedure provides power to High Courts to confirm death sentences. India is one of the 78 countries which have retained the death penalty. According to a study by National Law University in Delhi, 755 people have been hanged in India until now. The IPC awards death sentence for various offenses like a criminal conspiracy (Sec.120B), murder (Sec.302), waging or attempting to wage war against the Government of India (Sec.121), abetment of mutiny (Sec.132), Dacoity with murder (Sec.396) Aggravated Murder (Sec.396 & 364A), Terrorism-Related Offenses, Aggravated Rape, Treason (Sec.121 & 136) and Kidnapping. There are provisions for the death penalty under various legislations like the Anti-Terrorism Laws, NDPS Act, etc. A crucial change was made in 1955 when Parliament repealed Section 367(5) of the Code of Criminal Procedure. With its’ reenacted in 1973 where several changes were made, notably to Section 354(3) mandating judges to provide special reasons for why they imposed the death sentence.
Justice P.N Bhagwati criticized the death penalty to be unconstitutional and undermining human rights. It was in the Bacchan Singh v. State of Punjab case (1980) that the court laid down the renowned Doctrine of “Rarest of the Rare Case” which stated that death sentence can only be given by the courts in rarest circumstances pertaining to the nature of the crime, background of the convicted but still constitutes a ‘rarest of rare case’ or ‘special reasons’ has been left unanswered by the Supreme Court. But even after years, the lack of explanation and clarity of the ‘Aggravating and Mitigating Circumstances’ has given rise to the problem again. Thus in the case of Macchi Singh v. State of Punjab, the judiciary set guidelines on how to formulate such circumstances by deciding it on the grounds of the manner of commission of the act, motive, socially abhorrent nature of the crime, extent of the crime & personality of the victim. The constitutionality of the death penalty was for the first time challenged in the case of Jagmohan Singh v. State of U.P, (1973) which contended that the death penalty infringes the golden triangle of articles 14, 19, and 21 of the Indian Constitution.
CASES SUBJECT TO DEATH PENALTY
In the case of Bhaeru Singh v. State of Rajasthan, (1994), the Supreme Court classified it to be a case under the said doctrine as the accused person cut the head and killed his wife. But with similar facts in the murder case of Amruta v. State of Maharashtra (1983), the court declined to grant the death penalty. In Laxman Naik v. State of Orissa, [(1994) 3 SCC 381], the court ruled that the offence of committing rape and deliberate, cold-blooded, and barbaric murder of a child of very tender age certainly falls into the rarest of rare categories but in the case of Kumudi Lai v. State of U.P (1999) the court declined to affirm the death penalty where it involved the rape and murder of a 14-year-old girl. In Amrit Singh v. State of Punjab (2007), a 2nd standard girl died due to heavy bleeding after being brutally raped. Under section 302, Trial Court and the High Court convicted the accused and sentenced him to death but Supreme Court held that the death was not intentional though the rape was brutal and so commuted the sentence.
In the case of Mithu v. State of Punjab (2001), the Supreme Court made the decision that the mandatory death penalty is unconstitutional in nature and in the judgment in Shatrughan Chauhan v. Union of India (2014), has laid down certain guidelines as to how the death penalty can be converted into a life sentence which was also later followed in the Rajiv Gandhi assassination case. From the different judgments in the case laws, it is evident that there exists no any kind of uniform understanding of the basic requirements for a case to fall under the ‘Rarest of Rare’ doctrine. This has given rise to serious concerns of judge-centric sentencing.
FALLACIES IN THE EXISTING DEATH PENALTY LAWS AND RAMIFICATIONS REQUIRED
The circumstances and facts of the case should be set as the determining factors to award capital punishment. The death penalty should be imposed on cases where life imprisonment in all ways is inadequate. Judicial decisions should be based on the ground of rule of law along with the applicability of an unbiased judicial mind. With regard to the execution of the accused, the adjudicator plays a pivotal role. The way he/ she perceives society, his personal views on the idea of justice all have a huge impetus on the delivery of the sentence and it often becomes very arduous for the task. After 1947, India became a democratic state, and the death penalty regime changed dramatically. In accordance with the provisions laid down in the Constitution of India, the Indian Penal Code provided for the granting of capital punishment for such particular offenses.
Article 21 of the Constitution, which guarantees every citizen a fundamental right to life, also specifically states that 'no individual shall be deprived of his or her life or personal liberty except in accordance with the procedure laid down in the law.’ This means that under no circumstances will your right to live be taken away from you except through the due procedure laid down in the law, that is, the State can take away your life through the legal process if it deems fit. Not all crimes are punishable by death, in fact, most organizations are not responsible for capital punishment; instead, they are reserved for the most egregious crimes.
Apart from the controversy over the number of executions, the death penalty itself has been the subject of discussion for decades, with the existing criminal procedure attracting the attention of a number of human rights and civil liberties groups not limited to a single country. Well-known international human rights organisations, such as Amnesty International, the European Center for Human Rights (ECHR), have been actively working in this regard to achieve the aim of abolishing the death penalty for all crimes worldwide. It is not just the Foreign Organisations, but there is an agreement within the United Nations itself to abolish the death penalty for good. Until now, India has maintained a consistent stance on the issue of the legality of the death penalty in the international arena, despite ongoing discussions and debates both within and outside the country. One of the main accomplishments of international human rights organizations was the passage of the Juvenile Justice (Care and Protection of Children) Act, 2000. When the Juvenile Justice Act was passed in 2000, although it had never been enforced, the statute also allowed people under the age of 18 to be hanged. In 2007, the UN proposed to all its Member States to put an end to the granting of the death penalty in their respective countries for any kind of crime. India strongly opposed and turned down the above-mentioned proposal.
Our country is inclined to the mentality of hanging the murderers and rapists and however barbaric this may seem, it often is the right way to treat such heinous crimes and in a way preserves social justice in our nation. However, in this contemporary world, the notions of retribution have evolved and the death penalty is no longer deemed as the correct way of making the culprit realize his wrongdoings, in fact, it is no way at all. From the viewpoint of many abolitionists, punishment should be intended towards correcting the wrong-doer and thus accentuating social stability but this notion is often at crossroads with the idea of delivering justice to the victim. The adjudicator to adjudicate keeping all this aside.
Also, the idea of Audi Alteram Partem isn’t properly carried out when an incapable accused is represented by an underpaid and neophyte attorney while an affluent accused or accuser can always get hold of an efficacious lawyer and turn the game in his favour. Botched-up investigations and forced confessions are other aspects of the how so-called ‘justifiable’ death penalty would be doing more injustice than justice.
CONCLUSION
Capital punishment is a complex issue to conclude on. There are various contrasting arrays that need to be taken into account while discussing the legitimacy of the death penalty. The Bachan Singh Case has laid down principles that have guided the Indian Judiciary on cases relating to death penalties for over a decade now but quite certainly there have been deviations from these principles and there is a growing need to re-visit and re-structure the existing death penalty laws by the Apex Court and re-align these laws with the contemporary society. Our courts should be the differentiator between right and wrong. And the notions of right and wrong change with the changing society and our laws should be updated in accordance with these changes.
ENDNOTES
1. Sahastranshu; Death Penalty in India, Legal Services India, http://www.legalservicesindia.com/article/2418/Death-Penalty-in-India.html
2. Tatheer Fatima; Constitutionality of Death Penalty, https://www.indianbarassociation.org/constitutionality-of-death-penalty/
3. Srishti Chawla; Critical Analysis of Death Penalty in India, Ipleaders, (20th April, 2019) https://blog.in/death-penalty/
4. Soibam Rocky Singh; Getting the hang of death penalty, The Hindu, (17th March 2020 01:31 pm), https://www..com/news/cities/Delhi/getting-the-hang-of-death-penalty/article31086083.ece