Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has discussed the constitutional validity of death penalty in India. He has mentioned case laws which paved the way for the death penalty in India. He has also highlighted the arguments for and against the death penalty. To conclude he has discussed the reliefs a person can seek once he is sentenced to the death penalty.
On March 20, 2020 at 5.30 AM the four rapists of the Nirbhaya case were hanged to death. This is because they had committed such a gruesome act that the court after 7 years held that they were fit for the highest punishment in the Indian legal system which is death penalty also known as capital punishment. Under the Indian Law hanging a person is the only form of death penalty. But under the Army act of 1950 even shooting a person is regarded as a death penalty. India is one of the 78 countries in the world that still follows the system of death penalty. According to a study by the National Law University of Delhi, 755 people have been hanged in Independent till now.[i] Coming to the death penalty as an offence, there are divided views amongst people on whether it should be valid or not:
IS DEATH PENALTY A VALID PUNISHMENT OR NOT?
- Many people have questioned the notion of death penalty with regards to the clause of Right to Life under many constitutions of the world. The argument people favouring death penalty give is that, the pronouncement of capital punishment is given in the rarest of rare case and hence if you have murdered someone you should also be murdered. This essentially means that when you murder someone or commit such a gruesome act which shakes the conscience of a population or court you have lost your rights guaranteed to you as a human. Hence you should be given a death sentence. It is also believed that such an act restores the balance of the society. If a murderer kills and is not sentenced to death he may come out of jail and kill again. Hence the concept of violence will prevail in society. So, for the balance of society to be maintained death sentence is essential.
- The people against death penalty have stated that the main aim of the court when pronouncing death penalty is to cause deterrence. But there is no deterrence caused in people because future criminals still commit the act irrespective of the judgment the court administers. The argument to this was first established in 1973 when Issac Ehrlich due to his research stated that for every inmate who was given the death penalty 7 people left the idea of committing murder. Essentially there was deterrence caused in people due to which they didn’t commit murder.[ii] Another professor named Ernest Van Den Hagg stated that the death penalty is liked to deter much more than any other punishment because people fear death the most.
- There has also been an argument put forward which states that the death penalty deters the accused from committing the act again. This means that it incapacitates the person from ever committing the crime. It is believed that a person who has murdered once will murder again. Hence the death penalty acts as a punishment which not only deters but also administers as a punishment not allowing to accused to commit the act again.
INDIAN POSITION REGARDING DEATH PENALTY
In India the following offences are punishable with the death penalty:
- Section 302[iii]– this section relates to punishment for murder. Under the ambit of murder, the accused may be punished to death penalty or life imprisonment.
- If a person is committing robbery and, in the process, murders a person, he/she will be imprisoned for life or given the death penalty.
- If any person commits a terrorist activity which leads to several deaths the persons committing such acts will be given the death penalty. A few cases to remember here are the death penalty pronounced on Ajmal Kasab and Muhammad Afzal. Both of these terrorists were hanged for committing terrorist activities in Mumbai and the parliament in Delhi.
- If a person commits rape which leaves the victim under a vegetative state or causes the death of the victim, he/she can be given the death penalty. This rule stated under the Criminal Law (Amendment) Act, 2013 after the heinous Nirbhaya rape case which took place in Delhi. Also, if a person rapes a girl under 12 years he can be sentenced to death. This was held under the criminal law ordinance 2018 after the rape of an 8-year-old girl named Asifa Bano in Jammu and Kashmir.
- Section 364A[iv]– according to this section if a person kidnaps someone and threatens to kill him/her and actually commits the threat he/she may be sentenced to a death penalty.
- If a person commits the act of treason to wage war or cause mutiny in the country, he/she may be sentenced to death by the court.
Having learnt the offences in which the court can pronounce the accused to death penalty we will now look at cases in India which have led the way in deciding the constitutionality of death penalty:
The first challenge to the death penalty came in the form of Jagmohan Singh v State of Uttar Pradesh.[v] In this case, the question before the court was whether the death penalty was violative under article 14, 19 and 21 of the constitution. The court held that it wasn’t violative of these provisions as the death penalty was carried out with the procedure established by law. It also held that the judges made a decision to impose the death penalty or life imprisonment on the basis of the facts and circumstances of the case.
The next challenge that came was in the form Maneka Gandhi v Union of India[vi] where the court had held that just because a law satisfied the requirement of one fundamental right, it was not exempt from operation within the scheme of other fundamental rights as well. Specifically, in order to be considered constitutional, a law needed to pass the test of Articles 14, 19, and 21 collectively. Further, this judgement asserted that any procedure established under Article 21 needed to be ‘fair, just and reasonable,’ and couldn’t be ‘fanciful, oppressive, and arbitrary.’ With this being the framework, the court made the landmark decision under Bachan Singh v State of Punjab[vii].
BACHAN SINGH V STATE OF PUNJAB
In this case, Bachan Singh was sentenced to the death penalty for the murder of Durga Bhai, Veeran Bhai and Desa Singh. The main objective of the court was to find out whether the death penalty could be continued as a practice or was violative under article 14,19 and 21 of the constitution?
Article 19 of the constitution
The main contention before the court was that the provision of the death penalty was against article 19 of the constitution because it took away all the freedoms enumerated under clause (1) of the said article. The court held that this was a wrong assumption as the said article was not absolute in nature. The rights under the said article could be restricted upon the discretion of the state and hence the state could restrict these articles in certain circumstances. Also, somebody’s enjoyment should not lead to restricting the other person from enjoying his/her rights. Hence the court held that the issue of article 19 was resolved due to these arguments.
Article 21 of the constitution
After Maneka Gandhi article 21 was interpreted in a way which stated that a person could be deprived of his life and personal liberty in accordance with fair, just and reasonable procedure established by law. This essentially meant that a constituent assembly could withhold the persons right through a fair and reasonable justification. Thus, the death penalty took away this right for punitive purposes. That means to set an example for others and cause deterrence the rights of the accused could be taken away.
Article 14 of the constitution
The final contention was under article 14 of the constitution where the court held that it is a said principle that unequal’s must be treated unequally. Here due to committing the heinous and gruesome act the accused had lost the essence of being called a human because the act he committed shook the conscience of the court and the general public. Also, sometimes the judge may pronounce one person for life imprisonment and the other for the death penalty. This wasn’t violative of article 14 either as each one got punished depending upon the part, he played in the crime considering there wasn’t any common intention. Also, further judgements restricted the courts to apply the death penalty in only certain cases and certain circumstances and hence the process was per se not arbitrary.
The main take away from this judgement was the fact that the judges pronounced that the punishment of the death penalty will only be awarded in the “rarest of rare cases.”
MACCHI SINGH V STATE OF PUNJAB
Even after the Bachan Singh case had been settled the law on the death penalty wasn’t clear. The question on what constituted rarest or rare cases was still pending. Finally, in the case of Macchi Singh v State of Punjab[viii] the court held that there were five categories which needed to be examined before awarding a death sentence:
- Manner of commission of murder- when an act is done which is beyond heinous or are stated before shakes the confidence of the public and courts. For example, burning somebody’s house when they are in it, committing rape and then injuring the victim in her private parts etc.
- Motive– this is one of the most important aspects the court looks into when you are sentencing somebody to the death penalty. If the motive is based on meanness for example to inherit property or to betray one’s motherland.
- Anti-social nature of the crime- this refers to crimes committed against scheduled castes or tribes. This refers to a situation where the crime is committed due to social wrath. For example, honour killing or dowry death etc.
- Magnitude of the crime- this refers to how many people have been affected by the crime. Has the crime targeted a major population or has it targeted an isolated population of a particular caste or creed?
- Personality of the accused- another major thing which the courts examine is why the accused committed the crime. What is the personality of the accused and what are the circumstances in which he committed the crime?
In the cases of Sher Singh v State of Punjab [ix]and Triveniben v State of Gujarat[x]the court held that death sentence is constitutionally valid after the judgement in Bachan Singh and should be accepted as the new law of the land. Also, there is nothing in the constitution which holds the death penalty as unconstitutional.
RELIEF FROM DEATH PENALTY
Article 72 of the constitution talks about a mercy petition which can be filed with the president of India for a pardon, reduction of sentence, changing or lowering the degree of punishment etc. this essentially means that after exhausting all other reliefs the accused can approach the president for a mercy petition.
Article 161 of the constitution talks about respective states granting pardon to people. Here the governor has the same power as the president to grant pardon in cases where the state has control.
The law on death penalty is constitutionally valid but many say is not achieving the purpose it was promulgated for which was to cause deterrence in criminals. Others hold that it is an effective tool and many people are stopped from committing crimes as people are most afraid of death. This will always be a disputed aspect of law but I would like to conclude with a quote by JRR Tolkein:
“Many that live deserve death. And some that die
deserve life. Can you give it to them? Then do not be too eager to deal out
death in judgement.”
[iii] Section 302, Indian Penal Code, 1860
[iv] Section 364 clause (a) of the Indian Penal Code, 1860
[v] AIR 1973, SC 947
[vi] 1978 SCR (2) 621
[vii] 1980 CriLJ 636
[viii] AIR 1983, SC 957
[ix] AIR 1983, SC 365
[x] (1983) 2 SCC 277
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