1.
INTRODUCTION
Talking about capital
punishment, the first question which strikes the mind is why India
is still in support of capital punishment. India is among the 55 countries in the
world where death penalty is still in practice.Capital punishment has
been used in almost every part of the world. But Currently, the large majority
of countries have either abolished or discontinued the practice.. To get the
answer we need to go little deep and analyze the nature of cases where death
penalty has been given by the courts of India. If we take up last five
instances, two of cases where dealing with crime like brutally raping and then murder
and three were the cases of terror attacks which took lives of many innocents.
Few of them didn’t even had any regret on the acts they committed. Like in case
of Nirbhaya, the accused after being convicted of gang rape & sentenced to
death by court. They boasted for what they did to the victim. For the people
like these capital punishment is necessary in India. Also
Deterrence
has been taken as one of the most common rationale expressed for capital
punishment. the most common reason for death penalty to prevail is the
assumption of the people's fear of death is more than the fear of being
imprisoned, that is the main reason why capital punishment is needed for most
heinousness crimes in India.
2.
BACKGROUND
If we look back in the
past of India ,practice of capital punishment was quite prominent.. After
independence, India retained several laws put in place by the British colonial
government, which included the which
included the Code of Criminal Procedure, 1898(‘Cr.P.C. 1898’),and the Indian
Penal Code, 1860 (‘IPC’).The IPC prescribed six punishments that could be
imposed under the law, including death. For offences where the death penalty
was an option, Section 367(5) of the CrPC 1898 required
courts to record reasons where the court decided not to impose a sentence of
death. In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly
altering the position of the death sentence. The death penalty was no longer
the norm, and courts did not need special reasons for why they were not imposing
the death penalty in cases where it was a prescribed punishment.
The amendment of 1955 made a significant modification (where terms of imprisonment and the death penalty were equal possibilities in a capital case), and a reversal of the position under the 1898 law (where death sentence was the norm and reasons had to be recorded if any other punishment was imposed). Now, judges needed to provide special reasons for why they imposed the death sentence. These amendments also introduced the possibility of a post-conviction hearing on sentence, including the death sentence, in Section 235(2)[4]In India, It’s awarded for most heinousness and grievous crimes. Article 21[5] of the constitution which guarantees to every citizen the fundamental right to life ,also expressly states, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. This means that under no circumstances your right to live will be taken away from you except by the due procedure established by law, that is state can take away your life through the given process of law if it deems fit. various offences such as criminal conspiracy, murder, war against the government, abetment of mutiny, dacoity with murder, and anti-terrorism are punishable with death sentences under Indian Penal Code (IPC).
The principles as to what
would constitute the “rarest of rare” has been laid down by the top
Court in the landmark judgment in Bachan Singh vs State of Punjab[6] (1980). Supreme
Court formulated certain broad illustrative guidelines and said it should be
given only when the option of awarding the sentence of life imprisonment is
“unquestionably foreclosed”. It was left completely upon the court’s discretion
to reach this conclusion.
The International framework
From the early 1960s,
although a majority of countries still used the death penalty, the draftees of
the International Covenant on Civil and Political Rights (ICCPR) had already
begun moves for its abolition in international law.
Although Article 6 of the
ICCPR permits the use of the death penalty in limited circumstances, it also
provides that “nothing in this article shall be invoked to delay or to prevent
the abolition of capital punishment by any State Party to the present Covenant.”
India also opposed a UN
resolution calling for a moratorium on the death penalty because it goes
against the Indian statutory legislation as well as against each country’s
sovereign right to establish its own legal system.
Legal factors involved
Article 21 of the
Constitution guarantees the right to life and personal freedom to all,
including the right to live with human dignity. The state may take away or
abridge even the right to live in the name of law and public order. But this procedure must be “due process”
as held in India’s Maneka Gandhi v. Union[7].
The procedure that takes away a human being’s sacrosanct life must be just,
fair and reasonable. Our constitutional principle can be stated as follows
·
Only in rarest of rare cases, the death
penalty should be used.
· Only on special grounds, the death penalty can be sentenced and should be treated as exceptional punishment.
The accused may pray for forgiveness, commutation, etc. of sentence under Sections 433 and 434 of the Cr.P.C[8]. and to the President or the Governors under Articles 72 and 161[9]. Articles 72 and 161 contain, apart from the judicial power, discretionary power for the President and governor to interfere with the merits of the matter
·
The essence of the governor’s power should
not rest on race, religion, caste or political affiliations, but on a rule of
law and rational issues.
THE PROOF OF THE CLAIM
India awaited seven long
for the execution of Nirbhaya’s rapists, the inordinate delay in the execution
of the death penalty has taken the sting out of the punishment. This is the
reason why Hyderabad police encounter in Disha’s case was hailed by a large
populace.
As the judges of Supreme
court said in Nirbhaya’s case that the crime is of ‘A Different World’[10]. There are such heinous
crimes happening in India which don’t deserve any punishment other than death
penalty
In India as per official
statistics, 720 executions have taken place in India after it became
independent in the year 1947, which is a minuscule fraction of the people who
were awarded death penalty by the trial courts. In the majority of the cases,
death was commuted to life imprisonment and some were acquitted by the higher
courts. This fall in capital punishment was due to one of the apex court’s
judgement where it propounded the dictum of ‘rarest of rare cases’
according to which death penalty is not to be awarded except in the ‘rarest of
rare cases’ when the alternative option is unquestionably foreclosed.
What constitute Rarest of
Rare Cases
· When the murder is committed in an
extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so
as to awaken intense and extreme indignation of the community.
·
When total depravity and cruelty are the
motives behind a murder.
Death penalty is
challenged at many instances in the constitutional courts of India ,but the court did not dispense with the capital
punishment .This is still legal and constitutional . India is currently not in
position to uproot the capital punishment giving its social, economic and
education status. If we want this practice to be removed , then first we need
to make the society much more civilized so the happening of the crime deserving
death penalty be decreased.
Following are the reasons
why Death penalty should be not removed in India:
· Retribution - Guilty people deserve to be punished in proportion to the severity of their crime
· Deterrence- Capital punishment is often
justified with the argument that by executing convicted murderers, we will
deter would-be murderers from killing people.
· Rehabilitation- Of course capital
punishment doesn't rehabilitate the prisoner and return them to society. But
there are many examples of persons condemned to death taking the opportunity of
the time before execution to repent, express remorse, and very often experience
profound spiritual rehabilitation
·
Prevention of re-offending- It is
undeniable that those who are executed cannot commit further crimes.
4.
CONCLUSION
“Capital punishment is
our society's recognition of the sanctity of human life.”
Orrin Hatch
In India the present
position regarding death sentence is quite a balanced one. It is only given in
the rarest of the rarest cases were the crime committed is very dreadful to the
society. When a criminal commits a capital crime, they should suffer a
punishment which equals the crime and it is thought that the worst punishment
possible is the death penalty since it does not only remove a criminal's
physical freedom by imprisoning them, it removes their psychological freedom by
withdrawing their choice to live. Capital Punishment also warns future
criminals and dissuades them from performing capital crimes and this increased
the safety of the public.
To conclude, I believe that capital punishment is morally right since the society benefits greatly, it is administered in a humane manner and is the only punishment that levels with the most serious offences. What few things that needed to be worked on is the wide judicial discretion given to the court that has resulted into enormously varying judgment, which does not portray a good picture of the justice delivery system. What is needed to be done is that the principle laid down in cases like Bachan Singh or Machhi Singh must be strictly complied with, so that the person convicted for offence of similar nature are awarded punishment of identica
[1] Crime in India, Wikipedia, https://en.wikipedia.org/wiki/Capital_punishment_by_country last seen on 20/7/2020
[2] S.367(5),The code of criminal procedure,1908
[3] S.367(5),The code of criminal procedure,1908
[4] S.235(2), the Indian penal code
[5] Art. 21, the constitution of India
[6] Bacchan singh vs State of Punjab (1980) 2 SCC 684
[7] Maneka Gandhi vs union of India (1978) SCR(2) 621
[8] S. 433,434, The code of criminal procedure
[9] Art. 72,161, The constitution of India
[10] Shayla Verma, Supreme court verdict, NDTV, https://www.ndtv.com/india-news/accused-were-obsessed-to-ravish-nirbhaya-life-what-judges-said-1689944 last seen on 18/07/2020
Nice content
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