Capital Punishment (Death Penalty) In India

What Is Capital Punishment?

  • The death penalty or capital punishment is the most severe punishment a person can receive under any penal legislation in effect anywhere in the world. The legal procedure through which the state uses its authority to take an individual’s life is the death penalty. It has been in existence since the inception of the States itself. During British rule, there were several cases of Indians being executed before or after trial. India’s judicial system entered a new epoch with the advent of independence. It was in stark contrast to the British Judicial system, under which Indians had limited access to justice, or the time of empires and kingdoms preceding it, when the ruler of a state or kingdom was the ultimate authority and source of all justice, and his or her statements were adopted verbatim as the law of the land. Thus, the monarch had the authority to sentence any man to death, regardless of who he or she was.

  • After 1947, India became a democratic state, and the death penalty system also changed significantly. In accordance with the requirements of the Indian Constitution, the Indian Penal Code authorized the imposition of the death penalty for certain crimes.

  • Article 21 of the Constitution, which protects every citizen the fundamental right to life, also specifies explicitly that “no individual shall be deprived of his life or personal liberty except in accordance with established legal procedure.” This means that under no circumstances can your right to life be taken away from you unless in accordance with the legal process, i.e., the state can only take your life if it deems it necessary through the legal process. The death penalty is reserved for the most serious crimes and is not applicable to all offences.

Historical Background

  • The death penalty is an ancient sanction. The death penalty has existed in virtually every country in the globe. The history of human civilization indicates that capital punishment has never been abandoned as a form of punishment.

  • Under the rules of Draco (about the 7th century BCE), the capital penalty for murder, treason, arson, and rape was commonly utilized in ancient Greece, but Plato thought that it should be reserved for the incorrigible. During the brief duration of the Roman Republic, citizens were spared from the death penalty for a variety of crimes.

  • This is supported by Sir Henry Marine’s observation that the Roman Republic did not abolish the death penalty, even though its non-use was essentially the result of the practice of punishment or exile and the procedure for questions.

  • In the Code of King Hammurabi of Babylon in the eighteenth-century B.C., the death sentence was legislated for twenty-five separate offences. The death penalty is also described in the Draconian Code of Athens, which made it mandatory for all offences.

Arguments In Favor Of The Death Penalty In India

  • Retribution refers to the notion that punishment is administered because it is deserved and that the death penalty is required to deliver justice for the victims, their families, and/or society.
  1. Supporters of the death sentence sometimes argue that “an eye for an eye” is justified, that the punishment should be proportional to the offence, and that it should be a moral reaction to the crime.
  • The Fundamental Right to life and liberty is guaranteed by Article 21 of the Indian Constitution.
  1. It adds that no one shall be deprived of life or liberty except in accordance with legal procedure.
  2. This has been interpreted by the courts to suggest that provided there is a fair and valid procedure, the state can deprive a person of his life by passing legislation.
  • Deterrence is the most frequently cited justification for the death penalty. The essence of the theory is that “violent crime lowers when there are executions.”
  1. This indicates that the possibility of being executed in the future will be sufficient to deter a substantial percentage of individuals from committing a horrible act.
  • Citizens’ Protection and Well-Being: A democratic society like India relies on the state to provide safety, security, and enforcement of the public’s faith in the legal system.
  1. The Preamble of the Indian Constitution also mentions social justice; therefore, the death penalty is frequently defended on the basis that the state has a moral obligation to protect the welfare and security of its residents.

Arguments Against Death Penalty In India

  • Capital punishment is ineffective at rehabilitating prisoners, which is the objective of punishment.
  1. The purpose of the accused’s punishment is to enable him to return to society and function as a law-abiding member of the community.

People who oppose the death penalty believe that retribution is unethical since it is merely a sanitized form of vengeance.

  1. In fact, global data could not convincingly demonstrate that the death sentence reduces crime, particularly rape.

  2. Since 2013 (Section 376A of the Indian Penal Code), rapes have been punishable by death; yet, rapes continue to occur and the brutality of rapes has grown dramatically. This forces one to consider whether or not the death sentence is an effective deterrence.

  • Opponents of the death penalty claim that it reciprocates the existing cultural violence in society and does not provide a remedy.
  • Hang to Death Ignores Societal Failures: Hang to death solely considers the ‘individual failing’ of the rapist and ignores the societal failures’
  1. Opponents of the capital penalty believe that by executing a rapist, the responsibility for making society safer for women is transferred to individuals, and society is absolved of its responsibilities.

  2. According to national statistics, 74.1% of death row inmates in India are economically insecure based on their occupation and property ownership, and the majority of death row inmates belong to the lowest social strata.

  • Execution of the Innocent: One argument against the death penalty is that mistakes or defects in the legal system can result in the execution of innocent individuals.

Provisions Of Death Penalty In India

  • According to the Indian Penal Code along with other acts eleven offences committed within the territory of India are punishable by death-

Section under IPC or any other act

Offence

120 B

Being a party to a criminal conspiracy to commit a capital offence

121

Waging, or attempting to wage war, or abetting waging of war, against the Government of India

132

Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny

194

Giving or fabricating false evidence with intent to procure a conviction of a capital offence

195A

Threatening or inducing any person to false evidence resulting in the conviction and death of an innocent person

302,303

Murder

305

Abetting the suicide of a minor

307 (2)

Attempted murder by serving life convict

364A

Kidnapping, in the course of which the victim was held for ransom or other coercive purposes

376A, Criminal Law Amendment Act, 2013

Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender

376AB

Rape of a child below 12 years of age

376DB

Gang Rape of a child below 12 years of age

376E

Certain repeat offences in the context of rape

396

Banditry with murder – in cases where a group of five or more individuals commit banditry and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.

Part II- Section 4 of Prevention of Sati Act

Aiding or abetting an act of Sati

31A of the Narcotic Drugs and Psychotropic Substance Act 

Drug trafficking in cases of repeat offences

The Constitutional Validity Of The Death Penalty In India

  • India is one of the countries that has neither completely abolished the death penalty nor passed a law detailing its validity. Since the establishment of the Indian Constitution, the constitutionality of the death sentence has been challenged on numerous occasions through Supreme Court petitions.

  • Sometimes, the constitutional validity of the death penalty was challenged in several ways:

  1. In Jagmohan Singh v. State of Uttar Pradesh, the five-judge bench of the Supreme Court unanimously upheld the validity of the death penalty, holding that it did not violate Articles 14, 19, or 21. In this instance, the death sentence was challenged on the grounds that it violated Articles 19 and 21 because no procedure was offered. It was contended that the procedure described in the Criminal Procedure Code did not include the application of the death penalty. The Supreme Court ruled that “the system established by law governs the selection of death sentences.” The judge chooses between a death sentence and a life sentence depending on the circumstances, facts, and nature of the offence presented at trial.

  2. In the Code of King Hammurabi of Babylon in the eighteenth-century B.C., the death sentence was legislated for twenty-five separate offences. The death penalty is also described in the Draconian Code of Athens, which made it mandatory for all offences.

  3. The culprits were executed in ways such as burning alive, drowning, being beaten to death, being impaled, and burning alive. Around Britain, hanging became the standard mode of execution in the tenth century A.D. During the succeeding century during the rule of William the Conqueror, it was only permitted to hang people during times of war. With the passage of time, even the United Kingdom ceased to impose the death penalty.

  4. Compared to nations with the death penalty, countries without the death sentence have a lower murder rate. There has been a surge in the global acceptance of the idea that the death penalty is inhumane, harsh, and degrading. It encourages violence in its entirety and fails to provide public safety or prevent violent crimes. The death sentence has been abolished by the world’s major cultures, religions, and regions. According to information provided by the United Nations, over 150 countries no longer use it or have eliminated it.

Methods Of Executions Of Death Penalty

  • In India, as per the current position of law, capital punishment is awarded only in the ‘rarest of cases, and the primary method of execution as given under Section 354(5) of the Criminal Code of Procedure, 1973 is “Hanging by the neck until dead.

1. Hanging- The ‘long drop’ is the most commonly used hanging method. In some countries, prisoners are weighed the day before their execution to determine the length of ‘drop’ necessary to ensure a quick death. If the rope is too long, the inmate could be decapitated, and if it is too short, death by strangulation could take as long as 45 minutes. Some countries, such as Iran, use cranes to publicly hang the condemned.

2. Lethal Injection- When this method is used, the condemned person is usually bound to a gurney, and a member of the execution team positions several hearts monitors on this skin. Two needles (one is a backup) are then inserted into usable veins, usually in the prisoner’s arms. Long tubes connect the needle through a hole in a cement block wall to several intravenous drips. The first is a harmless saline solution that is started immediately. Then, at the warden’s signal, a curtain is raised exposing the prisoner to the witnesses in an adjoining room. The process then differs depending on whether the state uses a single-drug or multi-drug protocol.

Methods of Executions of Death Penalty- 13angle.com

3. Shooting- Execution by firing squad typically involves the prisoner is bound to a chair (sitting) or a pole (standing), with a black hood, pulled over their head. Up to 20 feet away, the shooters, usually no less than five of them, aim for the prisoner’s heart. If the shooters miss their target, by accident or intention, the prisoner can bleed to death slowly. Carried out in China, Indonesia, North Korea, Saudi Arabia, Somalia, Taiwan, Yemen

4. Electrocution- After the prisoner is shaved and strapped to a chair, a metal skullcap-shaped electrode is attached to the scalp and forehead over a sponge moistened with saline. The prisoner is then blindfolded. A jolt of between 500 and 2000 volts, which lasts for about 30 seconds, is repeatedly administered until the prisoner is declared dead. Just like lethal injection, the electric chair is far from foolproof. In 1990, Jesse Joseph Tafero suffered three jolts of electricity before he stops breathing, during which time six-inch flames erupted from his head. This botched execution was put down to “inadvertent human error” with the inappropriate substitution of a synthetic sponge for a natural one. Carried out in the USA

The Approach Of The Supreme Court

  • The apex court will consider laying down guidelines for determining mitigating circumstances in death penalty cases.

  • The SC stated that the accused must have a meaningful, real and effective hearing, along with the chance to introduce evidence relevant to the sentence question. Section 235 of the Code of Criminal Procedure (CrPC) requires a judge to hear the accused after conviction on the question of sentence, and then pass sentence on him according to law.

  • Supreme Court also suggested that while delivering judgment in cases related to the death penalty the convict’s social background, age, and educational levels should be considered.

  • Additionally, considerations should be made regarding the convict’s psychological experiences and post-conviction behavior, before deciding whether the death penalty should be imposed or not.

  • In 1980, the Supreme Court upheld the constitutionality of capital punishment in ‘Bachan Singh v State of Punjab’ on the condition that the punishment will be awarded in the “rarest of the rare” cases. Crucially, the ruling also stressed that a separate sentencing hearing would be held, where a judge would be persuaded on why the death sentence need not be awarded.

  • However, there are conflicting rulings on when that separate hearing is supposed to take place.

Landmark Cases

Landmark Cases- 13angle.com

1. Bachan Singh vs. State of Punjab

The Appellant Bachan Singh was convicted for his wife’s murder and was sentenced to life imprisonment. After undergoing the term of imprisonment (i.e after his release) he was living with his cousin Hukam Singh and his family this Hukam Singh’s wife and his son objected to the appellant’s living in their house. A few days prior to this occurrence at midnight Vidya Bai was awakened by the alarm and saw the appellant inflicting an axe blow on her sister’s (Beeran Bai) face. In the attempt to stop the appellant, Vidya Bai got blown on her face and ear with an axe leading to injuries to her face and ear making her unconscious. Diwan Singh who was sleeping at a distance woke up by the shriek and raised an alarm to wake Gulab Singh sleeping at a distance from there. On seeing an appellant with an axe on Desa Bai’s face they both hurried to stop him. Noticing them moving towards him the appellant left the axe and ran away. Diwan Singh and Gulab Singh gave chase of him but couldn’t apprehend him. Later Bachan Singh was tried and convicted and sentenced to death under Section 302, of the Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai the sessions judge. The High Court confirmed his death sentence given by the sessions judge and dismissed his appeal.

2. Vinay Sharma vs State of Union

The Vinay Sharma v. the Union of India (2020) case, also famously known as the Nirbhaya gang rape case, shocked the conscience of the whole country. The unfortunate and brutal incident occurred in the chilled weather of Delhi on a bus. The girl was brutally raped by six accused which also led to the death of the girl. An iron rod was also inserted into her private parts and she was thrown naked to the road. All the physical and mental torture led to her death. When the case was brought before the court, one of the accused committed suicide in jail and one of the accused was a juvenile so he was not sentenced to death. But the other four accused were sentenced to death and were also hanged in the year 2020. This judgement was concluded after analyzing the aggravating and mitigating factors. The aggravating factors outweighed the mitigating factors if any. The death sentence was imposed because life imprisonment seemed inadequate considering the relevant circumstances of the crime and the inhuman torture committed on the victim which brought about her death.  

3. Sidhartha Vashisth @ Manu Sharma V. The State (NCT of Delhi), 2010

Sidhartha Vashisth @ Manu Sharma V. The State (NCT of Delhi), 2010, also known as the Jessica Lal case, was one of the horrifying death cases in which society knows that sometimes money can buy anything but cannot buy justice. In this case, the girl was shot to death when she refused to serve alcohol to one of the accused. Her sister had to run to all the courts for justice for her sister and finally, through a media trial, she led to having the suo motu case taken to the High Court. In this case, the accused manipulated the prime eye-witness to become a hostile witness which led the court to award him the punishment of life imprisonment. This judgment was passed after seeing the balance between aggravating and mitigating factors.

Conclusion

  • India is one of the world’s largest countries, and as a result, it has many crimes and criminals. In order to address these challenges, India has extraordinarily stringent rules. Every violation results in a sanction for the offender. The uncommon application of the death penalty in India is one of the adjustments. When analyzing death punishment/Death Penalty Sentences, the rarest of rare situations came to light. It is given to those who have committed severe and horrible acts. There have been several disputes over the indigenous legitimacy of the capital discipline, and numerous individuals from diverse regions have stated their opinions on the topic. Still, no final decision has been reached.

Top 13 Interesting Facts About Capital Punishment

  1. Clemency must be granted to a pregnant woman sentenced to death according to a 2009 amendment.

  2. According to the law in India, a minor who is under the age of 18 at the time of committing a crime is excluded from the death penalty.

  3. The term death penalty is sometimes used interchangeably with capital punishment, though the imposition of the penalty is not always followed by execution, it can be commutated into life imprisonment or pardoned by the President under Article 72 of the Indian Constitution.

  4. Breaking a nib is not a law, instead, it is a symbolic act. It is not mentioned in IPC, CrPC, or Evidence Act that a judge must break the nib of the pen after awarding the death penalty.

  5. Once written or signalled, the judge has no power to review or revoke the judgment, So the nib is broken so that the judge may not think of reviewing his own judgment.

  6. The practice is symbolic of a belief that a pen used to take away a person’s life should not be used ever again for another purpose.

  7. Another theory that backs the breaking of nib after a death sentence is that the judges who award the death sentence wanted to keep themselves at a distance from the judgment and guilt for the same.

  8. There is also a reason stated that the judge should not be unhappy with the decision to execute the culprit and have no remorse at all, so he breaks the pen’s nib after the death sentence announcement and makes it unusable so the decision does not memorize him.

  9. Capital punishment is legal in India but the death sentence in India should only be awarded in the rarest of rare cases as said by the supreme court in the 1980 Bachan Singh Judgement.

  10. Capital Punishment in India includes only two methods hangings and shooting (Under, the 1950 Army Act)

  11. The law doesn’t hold offenders with Mental illness accountable for any of the offences, the rule further extends to the death penalty as well.

  12. Before the executioner pulls the lever, he asks for forgiveness from the death sentence convict. If the criminal is a Hindu, the executioner says ‘Ram-Ram’ and if the person is a Muslim, the executioner says ‘Salam’ in their ear.

  13. The presence of four people a Jail Superintendent, an Executive Magistrate, an executioner, and a doctor, is mandatory. The execution cannot be done in their absence.

Swati Gulati- 13angle writer

Swati Gulati

Writer

13angle