This article is written by Aashish Sood , a law student of BA LLB ,10th Semester, final year at Rayat Bahra University School of law , Mohali , Punjab, during his internship at LeDroit India. The article goes into detail about Capital Punishment in India including its meaning , retentionist view , abolitionist view, Law commission report on capital punishment, Mode of Execution of death sentence and major case laws with latest developments
KEYWORDS
Capital punishment, death penalty, judicial discretion, deterrence, rarest of rare, human rights, harsh punishment.
ABSTRACT
Capital punishment, also known as the death penalty, is one of the most debated aspects of the criminal justice system .It is also the most severe form of punishment. It is awarded for the gravest offences under the principle of “rarest of rare” as established in Bachan Singh v. State of Punjab 1980. While retentionist argue that it serves as a deterrent to crime, abolitionists believe it violates human rights and is prone to judicial errors and it is a murder committed by the state . This article examines the legal framework governing capital punishment in India, key judicial pronouncements, recent developments, and the ethical dilemmas associated with it. It also explores global perspectives on the death penalty and evaluates its effectiveness in achieving justice.
1.INTRODUCTION
Capital punishment has been a longstanding form of retributive justice, where the state exercises its authority to sentence a person to death for heinous crimes. Historically, execution methods included hanging, firing squad, and lethal injection. In India, the death penalty is prescribed for specific crimes under the Indian Penal Code (IPC) and other statutes, with strict procedural safeguards to ensure justice.
The principle of awarding the death penalty in the “rarest of rare” cases was laid down in Bachan Singh v. State of Punjab 1980. However, the debate continues—should the state have the right to take a life, or should the criminal justice system focus on reformation rather than retribution?
2. LEGAL FRAMEWORK GOVERNING CAPITAL PUNISHMENT IN INDIA
A. Provisions under IPC and CrPC
The Indian Penal Code, 1860 (IPC) prescribes the death penalty for offences such as:
•Section 302 – Murder
•Section 121 – Waging war against the government
•Section 376A – Aggravated rape cases
•Section 364A – Kidnapping for ransom resulting in death
The Criminal Procedure Code, 1973 (CrPC) outlines sentencing procedures and review mechanisms, including the right to appeal, mercy petitions, and judicial discretion in commuting death sentences.
B. Constitutional Provisions and Judicial Safeguards
Article 21 of the Indian Constitution guarantees the right to life, which can only be curtailed by due process of law. The President and Governors have the power to grant clemency under Articles 72 and 161, respectively. In Shatrughan Chauhan v. Union of India (2014), the Supreme Court ruled that inordinate delays in mercy petitions could be grounds for commuting death sentences to life imprisonment.
3. LANDMARK CASE LAWS ON CAPITAL PUNISHMENT
A. Bachan Singh v. State of Punjab (1980)
•This case established the “rarest of rare” doctrine, limiting the death penalty to cases where alternative punishments are unquestionably inadequate.
B. Machhi Singh v. State of Punjab (1983)
•This case laid down criteria to determine the rarest of rare cases, such as brutality of the crime and its impact on society.
C. Shatrughan Chauhan v. Union of India (2014)
This case highlighted human rights concerns by commuting death sentences due to delays in mercy petitions.
4. RECENT DEVELOPMENTS IN CAPITAL PUNISHMENT
A. Mukesh & Anr v. State (Nirbhaya Case, 2020)
•This case confirmed death sentences for the perpetrators of the Nirbhaya gang rape and murder case, emphasizing the need for harsh punishment for crimes against women. Execution of all four convicts in the Nirbhaya case marked a rare instance where all accused were hanged together.
B. Mohd. Arif v. Supreme Court of India (2014)
•Upheld the right of death row convicts to an open court hearing in review petitions.
5. ARGUMENTS FOR AND AGAINST CAPITAL PUNISHMENT
A. Retentionist View
1.Deterrent Effect: Many believe that fear of execution may prevent heinous crimes. Capital Punishment creates fear in the mind of the criminals that if they will do a certain act it will result into their death. Thus due to fear of death many criminals think twice before doing certain crimes which result in reduction of crime rates in a country.
2.Justice for Victims: Many believe that it provides a complete justice to victim as when a hardened criminal is given the death penalty is gives a sense of justice to both the victim and society.
3.Prevention of Recidivism: retentionist believes that it ensures that criminals do not repeat their offences.
Retentionist are also of the views that Punishment must match the gravity of offence and worst crimes should be severely dealt with the sake of deterrence and security of the society. Capital Punishment upholds rule of law because it discourages vigilantism or self help on the part of victim family.
B. Abolitionist view
1.Possibility of Miscarriage of Justice: Wrongful convictions can lead to irreversible mistakes.
2.Violation of Human Rights: Many believe that capital punishment against the right to life and dignity.
3.Ineffectiveness as a Deterrent: Studies suggest that the death penalty does not significantly reduce crime rates.
Abolitionist are also of the view that keeping a person alive in maximum security solitary confinement without the prospect of bail is a far greater punishment than death.. Capital Punishment is unjust and often discriminatory against poor who cannot afford to defend themselves properly against a homicide charge. Capital punishment is also a violative of Article 3 and 5 of the UN Declaration of Human Rights. And it denies a possibility of reformation and rehabilitation of the offender.
6. INTERNATIONAL PERSPECTIVE ON CAPITAL PUNISHMENT
•Abolitionist Countries: Over 70% of nations have abolished the death penalty, including the UK, Canada, and most of Europe.
•Retentionist Countries: India, China, the USA, and Saudi Arabia still implement the death penalty.
•United Nations Stand: The UN opposes capital punishment, advocating for its global abolition.
7.LAW COMMISSION REPORT ON CAPITAL PUNISHMENT
In response to the resolution moved in the Parliament in 1962 on the abolition of capital punishment, the Government of India referred the question to the Law Commission.
The Commission decided to take up this subject separately for the revision of the general criminal law in view of its importance. The Commission presented its report to the Lok Sabha on November 18, 1971, in which it inter alia observed:
“even after all the arguments in support of abolition of capital punishment are taken into account, there does not remain a residium of cases where it is absolutely impossible to enlist any sympathy on the side of the criminal. The Commission further expressed a view that ‘retribution’ involved in capital punishment does not connote the primitive concept of ‘eye for an eye’ but it is an expression of public indignation at a shocking crime, which can better be described as ‘reprobation’.”
Therefore, the Commission did not recommend any material change in the offences which are made punishable with death under the Indian Penal Code.
As regards the question of exempting certain categories of persons from death sentence, the Law Commission in its 42nd Report published in June 1971 suggested that:
(1) Children below 18 years of age (at the time of commission of the crime) should not be sentenced to death.
(2) It is not necessary to exempt women generally from the death penalty.
(3) It is unnecessary to insert a statutory provision relating to “diminished responsibility” in the statute book.
(4) An attempt to commit suicide should cease to be an offence in India.
The present law in this regard is “harsh and unjustifiable and it should be replaced”.
The Law Commission strongly felt that capital punishment acts as an effective, deterrent “which is the most important object and even if all objects were to be kept aside, this object would by itself furnish a rational basis for its retention” In its concluding remarks, the Commission observed that having regard to the peculiar conditions prevalent in India and the paramount need for maintaining law and order in this country, we cannot risk the experiment of abolition. This is perhaps the most appropriate approach to the problem of capital punishment so far Indian criminal justice system is concerned.
However, over the past seven decades India has felt ambivalent about the death penalty, hence few executions have taken place since independence.’ Most of the world countries have abolished it and only 36 countries including US and India have not favoured its abolition. As per the United Nations resolution, “death penalty undermines the human dignity.”
In the changed scenario and in keeping with the global trend, the Law Commission of India headed by Justice A.P. Shah in its 262nd report of 2015 has now strongly recommended the abolition of capital punishment. Giving reasons, it observed, “state must never be guilty of killing an innocent person; there is no link between death penalty and the amount of crime; and death sentences are inherently arbitrary, with no principled method to remove arbitrariness.” However, one of three full-time members Justice (retd.), Usha Mehra and both the ex-officio members, Law Secretary, P.K. Malhotra and Legislative Secretary, Sanjay Singh gave their dissenting notes and held that death penalty needs to be retained for the offence of terrorism in the interest of national security.
Be that as it may, it can be validly argued that retaining the death penalty, in fact, enhances human dignity. It has been rightly said that keeping a person alive, brooding and suffering over his misdeed (crime) is far greater punishment than death. The ‘rarest of rare’ principle followed in India in awarding the death sentence appears to be the correct approach to this intricate problem.
8. MODE OF EXECUTION OF DEATH SENTENCE
Section 354(5) of the Code of Criminal Procedure, 1973 requires that when a person is sentenced to death, the Judge in his sentencing order shall direct that the condemned person be hanged by neck till he is dead. The constitutional validity of this mode of execution of death sentence was challenged in Dina v. State of U.P. on the ground that it was violative of Article 21 of the Constitution being barbarous and inhuman in nature. The Supreme Court, however, rejected the contention and held that hanging the condemned person by neck till he is dead was perhaps the only convenient and relatively less painful mode of executing the death sentence.The issue was once again raised in Smt. Shashi Nayer v. Union of India but the Supreme Court upheld the validity of ‘hanging by neck until death’ reiterating its earlier decision in Dina’s case.
Similar question of painless execution of death sentence was considered by the Supreme Court in its decision in Rishi Malhotra v. Union of India As to the question whether some other mode than execution of death penalty by hanging as prescribed in Section 354(5) of Cr PC would be more just and appropriate, the Court opined that legislature should think of some other mode by which convict, who, in law, has to face the death sentence, should die in peace without pain. It has been said for centuries that nothing can be equated with painless death.Electrocution or application of intravenous lethal injection has not yet taken its place in India as some of the Western Countries have adopted as an alternative to death by hanging which involves mutilation and enormous pain.
Most countries in the west are now providing the option of either lethal injunction or shooting. Most preferred option is intervenous lethal injunction because it is simple to execute, execution process hardly takes S to 8 minutes and the convict becomes unconscious immediately after administration of anesthesia and dies in sleep (peace). It is the best controlled way of execution, painless, swift and no lingering death is involved in it.
The Supreme Court in the instant case observed that there would be many who would agree that the killing (execution of death sentence) can be done more humanely. Once an alternative to hanging is accepted, it should not be too difficult for the legislature to settle the details by bringing out a suitable legislation.
The Supreme Court of Japan in Ichikawa v. Japan,held that execution by hanging does not correspond to “cruel punishment”, inhibited in Article 36 of the Japanese Constitution. However, one thing is clear that hanging is undoubtedly accompanied by intense physical torture and pain and suffering though it may be regarded by some as more humane than electrocution or shooting or application of lethal gas.
9. CONCLUSION
Capital punishment remains a highly contentious issue in India. While its proponents argue that it serves as a necessary deterrent, critics highlight concerns about wrongful executions and human rights violations. The “rarest of rare” principle attempts to limit its application, but the debate continues over whether it aligns with the evolving principles of justice and human dignity. With increasing judicial scrutiny and global movements against the death penalty, India’s legal stance on capital punishment may undergo further transformation in the future.
10. REFERENCES
1.Bachan Singh v. State of Punjab, AIR 1980 SC 898
2.Machhi Singh v. State of Punjab, 1983 AIR 957
3.Dhananjoy Chatterjee v. State of West Bengal, 1994 AIR 2646
4.Mukesh & Anr v. State (Nirbhaya Case), (2020) 2 SCC 1
5.UN General Assembly Resolution on Moratorium on the Use of the Death Penalty
