Introduction

India is a nation with a population of over a billion people. This number continues to increase rapidly and along with it, there is also an increasing crime rate. Every nation implements a set of criminal laws to protect the interest of the people and to revive the society’s faith in the system of justice. Its main motive is to impose punishments on the wrongdoer and which in turn will also discourage others from committing the same crime. Capital punishment by definition is the practice of killing someone under the authorization of the law for any heinous crime.

The prevalence of capital punishment is known to everyone since the time immemorial. Through the study of history, it is evident that capital punishment has been practiced as a means of punishment in every society from the period of the monarchy to the modern day that is death by hanging the offender in public, electrocution, lethal injections, mob lynching, etc. Capital punishment can be considered as an appropriate penalty for many inhumane acts of killing people with the utmost cruelty and disregard of human life. In the legal framework of India, capital punishment is framed in the Indian penal code which allows the use of capital punishment only in the rarest of the rare cases. Section 302 of the Indian penal code states that any person who commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.

Thus, Section 303 of the Indian penal code reads that any person under life imprisonment sentence commits murder, he shall be punished with death. The implication of the death penalty is often viewed as a means of vengeance for the victims or the victim’s family for any heinous crimes and barbaric acts. However, it is not always possible to apply this sentence in every action where the public at large believe that it is the most suitable punishment. The canny use of this sentence in the country is also in compliance with the liability of judicious use of this penalty as a party to the international covenant for civil and political rights. The Indian judiciary uses this sentence only upon an unequivocal establishment of the guiltiness of the offender and the offense in a case before it which the court believes truly falls under the definition of the rarest of the rare.

However, the question that arises is the validity of this sentence as it clearly violates the basic human right to life. It also subjects the accused of inhumane torture, cruelty, and degrading punishment which is again violating one’s right to not be subjected to such cruelties. It also violates human dignity which is immanent to every human being. Although the justice system was formulated to serve justice, and how developed it is, there always lies the risk of executing innocent people. There have been many cases in history where the execution of the sentence was hugely supported by the public but which were later condemned vigorously. The death penalty as a capital punishment was formulated around four theories that is deterrent, preventive, retribution, and reformative.

No matter how much developed our justice system is, it will always remain credulous to human failures. Moreover, the death penalty is a very severe punishment compared to any other punishments awarded to the wrongdoer by the law. The entitlement of taking the life of a human, based on a legal system created by the people is in any way not justifiable. Death is something which is irrevocable so people should understand the value of life cause it’s very precious.

Historical Perspective of Capital Punishment

The history of capital punishment goes back to the evolution of mankind itself. The law of Mosses known to be the origin of death sentences in the western world whereas, in India, the ancient Indian Epics, Mahabharata, and Ramayana also mentioned the same, which proves the immemorial nature of the punishment. Recently, Amnesty International conducted a survey on the existence of the death penalty in different countries and found out that more than half of the countries have abolished this punishment, and others have restricted its presence. Over the last few years, at an average rate of at least one country per year abolished capital punishment with respect to human life and human rights. In America, this practice may be traced back to the 1600’s colonial times.

But in 1972, after the famous case of Furman v. George^{^[1]} the standards on which the death sentences were awarded were set for the coming years in America as it was held cruel and unusual of giving the jury, the power to decide the death penalty. United States of America at the present time, has reduced the punishment to life imprisonment. Currently states have abolished the death penalty. “The history of capital punishment in America has passed through the periods of unarticulated accepting in early centuries to an early total repudiation in Furman v Georgia case to a limited acceptance in the current period”.

Origin of the Capital Punishment in India

The origin is as old as the origin of the Hindu society. Its existence can be seen in ancient scriptures and also Rigveda, Atharvaveda. After the British stepped in India to rule, the number of capital offenses was reduced. In 1860, the Indian penal code was enacted which initially gave light categories of offences which had been given death sentences. In 1962, a bill moved by Raghunath Singh in the Lok Sabha regarding the abolition of capital punishment received attention and was passed to the law commission for further consideration. In 1980, the landmark judgment of Bachan Singh v .State of Punjab^{^[2]}, gave the judgment only in rarest of the rare cases. The court felt it unable to remove Capital Punishment from Indian penology.

The court felt that the right to life is the basic fundamental right to all under Article 21 and 19 of the Indian Constitution. In 1979, Rajendra Prasad v. State of Uttar Pradesh^{^[3]}, the judgement given by justice Krishna Iyer ruled that capital punishment violates Article 14, 19, and 21. But again in the year 1980, Bachan Singh v. State of Punjab, the Supreme court overruled the judgment given by the justice Krishna Iyer.

In Machhi Singh v. State of Punjab^{^[4]}, the apex court gave some of the broad outlines of the circumstances where the death sentence should be imposed. The last time India sentenced death as a punishment of a crime was in the year 2015 when Yakub Menon was found guilty for the Mumbai terrorist Bombay in 1993 which killed 257 people. India is one of the 78 countries which practices the concept of “rarest of the rare cases” in capital punishment. According to the report by Amnesty International India till 2018 gave away punishment to 109 offenders on the death row. In 2019, there were certain amendments in the POSCO Act and it was held that the maximum punishment for the rape of a child below 12 years is death sentenced.

Compatibility of the death penalty with respect to life

According to the Constitution, State legislatures in India have the power to make laws within certain jurisdictions. The judiciary has the power to adjudicate the constitutional validity of all the laws, and this power is given by the Constitution. If any laws made by the parliament violates the provisions of the Constitution, the Supreme Court has the power to amend it or declare it invalid. Article 21 of the Indian Constitution is one of the most cherished and important in relation to the development of a human rights background in India. The study of the right to life is the in-depth study of the Apex Court as a guardian of fundamental rights. There would have been no fundamental importance if Article 21 had been interpreted in its original sense. Life in the “right to life” is referred not only to the physical act of breathing. It has a deep meaning that involves the right to live with human dignity, livelihood, health, etc.

The Constitutional validity of capital punishment is an issue which has unsettled the Constitutional courts of the world. The cases in which the death penalty has been given raise for judicial a state practice of suspicious moral decorum, one impinging on the fundamental right to life.

The Hon’ble Mr. Krishna Iyer challenge the capital punishment with regard to its deterrent effect. According to him “the solution for explosive tension and return to tranquillity curing the inner man through technology and addiction to intoxication which demands the consumer”. In Jagmohan Singh v. State of Uttar Pradesh^{^[5]}, the Constitutional validity of capital punishment for the offense like murder under Section 302 of IPC was being challenged for the very first time. It argues that the death penalty is Constitutionally invalid as it violates right under Article 14, 19 and 21 of the Indian Constitution. In Mithu v. State of Punjab^{^[6]} case the Supreme Court of India held that Section 303 of the Indian Constitution, which suggests death sentence in cases of murder committed by a life convict is bad for the Constitution.

In the recent case of Vikram Singh v. The Union of India^{^[7]}, the Apex court challenged the Constitutional validity of section 64 of IPC on the grounds it is not proportionate to the death sentence of kidnapping even if no death is caused. The Constitutional validity of the death penalty has been challenged a number of times. The controversy of the death sentence assumed new significance introduced by the Supreme Court in the interpolation of Article 21,14 and 19.

The doctrine of “Rarest of the Rare Cases”

The Doctrine of Rarest of Rare was first found in the case of Bachan Singh v. State of Punjab. The Supreme Court, in this case, aimed to cut out a doctrine particularly for crimes culpable with death to cut down the obscurity for courts regarding when to go for the soaring punishment of the land. By the majority of 4:1, the constitutionality of death penalty was endorsed by the Supreme Court and a principle was placed down that the death penalty must be surrounded only in the “rarest of rare cases.” However, the scope of this phrase was left undefined with a deep meaning. The Ratio Decidendi of Bachan Singh case is that the death sentence is constitutional if it is specified as a substitute for the crime of murder and if the normal sentence specified by law for murder is imprisonment for life. This means that the death penalty can only be inflicted on “rarest of rare cases” where another option is excluded.

The year 2008 known for the case of Prajeet Kumar Singh v. State of Bihar^{^[8]}, where the court governed exactly what would constitute a “rarest of rare case.” The Court held that death sentence would be granted only, “when a murder is committed in a very brutal, deformed, devilish, disgusting or dastardly way so as to upgrade intense and extreme distress of the community”.

Conclusion

In the world of justice there is perhaps no area as highly disputed as the capital punishment. In the present day the question of its validity has been raised numerous times whether the system should continue the use of the death penalty as a form of punishment for some crime? Although the Indian justice system uses this sentence in the rarest of the rare cases, our society is moving towards a time and place where it can no longer be accepted as a form of punishment. From a moral point of view, it is not a humane punishment although a majority of people are often in support of this as it seems ethical because of the original crime. However, this sentence follows the mentality of an eye for an eye which in today’s world can be regarded as uncivilized and a childish form of punishment.

Humanity must display that it has evolved past the primitive way of thinking and be willing to act in a more rationalized manner when it comes to criminal sentencing even when the individual is accused of truly heinous crimes. When one has to answer the question of validity and the permissibility of this sentence from a moral standpoint, the answer is clearly to eradicate it. The main purpose of the imposition of this penalty is to punish the wrongdoer which in turn will also inculcate fear among others from committing the same crime. If empirically looked at, the death penalty has proved no result in deterring certain forms of crime. Another controversial aspect of the death penalty comes in the form of flawed executions. The death penalty has been carried out in a variety of ways in order to execute the accused in the most humane way possible.

However, each method that has been used to execute the criminals has had many flawed attempts which caused severe pain and suffering for the ones being executed. One such example of the execution of the sentence with flawed attempt is Stephen McCoy in May of 1989 where the modern method of lethal injection was attempted. According to witnesses the accused reacted violently to the drugs administered to him and was seen gagging, violently coughing, and undergoing body contortions. From a moral standpoint, a person of sound mind and clear consciousness should not have the right to sentence another to an execution that is so cruel and violates his basic right to live. The death penalty as a punishment for crime in no way serves justice. According to studies found in India over 60% of the convicts on the death rows belong to the backward class and religious minorities.

Most of them do not even possess a basic educational qualification thus resulting in most of them finding it difficult to even understand the charges levied on them. Moreover, most of them do not hold a very strong financial status which will allow them to further put up to the legal procedural charges. Hence often these minorities are victims of unfair trials and the sentence. The judiciary can definitely introduce strict laws and levy higher fines on the convicts. The death penalty is simply a barbaric remnant of uncivilized society. It is immoral in principle and unfair and discriminatory in practice. As a punishment for a crime, it has not proven to be effective.

References

Law commission report 262nd, 2015 “The Death Penalty”
Amnesty International Report: 1977
Amnesty International Newsletter: Vol 15 No: 1: January 1985
Pandey J.N. Constitutional law of India: 52th edition Central law Agency 2015
Singh M.P: Indian Constitutional Law, 8th edition, LexisNexis 2018.
Basu D.D: Commentary on the constitutional law of India: Vol.8th LexisNexis (2018)
William o. Hochkammer, Jr. “The Capital Punishment Controversy”. The Journal of Criminal law, Criminology, and police science: v.60 (1969).

Frequently asked questions-

From which landmark case” rarest of the rare” case doctrine came out?

This doctrine was first found and used in Bachan Singh v State of Punjab. It’s one of the most important and landmark judgments in our Constitution.

Isn’t the Death Penalty necessary as a retribution for victims’ families?

No, it’s not important as reconciliation means accepting that you cannot unfasten the murder, but you can make decisions that how you want to live after that.

Is that true that only the bad or worst criminals get sentenced to death?

No, it’s not true the death penalty is for those who commit the most dangerous offense. In India, death penalty is not given very easily to any murderer or any prisoners until and unless they commit heinous crimes.

Does the death penalty prevent crime?

Science till yet is unable to find out whether capital punishment is deterrent to crime. Deterrence, is more productively followed through maximizing the regulation of investigation and ensuring that crimes are always resolved and punished, rather than through commending death penalty as a punishment.