This article is written by Bandhani Ghosh, from Shyambazar Law College, University of Calcutta, studying in 3rd year of B.A. LL.B (5 year) course, during her internship at LeDroit India.
Abstract
Capital punishment has always been a debatable topic since it’s inception. Whether killing the culprit who has been awarded a death sentence for his crime is justified or not , whether such killing or execution would imbibe fear on minds of people who has tendency of becoming a future criminal or not are the questions which have always raised considerable amount of opinions and arguments. Be it in the motion of death penalty or against it , there are large number of instances when people have protested either to make the punishment less barbaric or to even increase the gravity of the punishment or rather the hardness of the method of execution so that the offender could feel the same pain he has given to the victim.
This article provides an understanding of the capital punishment especially in India, the capital crimes which imposes capital punishments, the way a person gets executed who has been on a death row and arguments in and against the favour of death penalty. Few landmark cases has also been considered in this article to make the concept clearer.
Keywords – Capital punishment, execution, death sentence, capital crimes, death row.
Introduction
Punishment is one of the main pillars of a civilized nation. It is indeed necessary to prevent the society from crime and maintain law and order. The criminal law of India reflects those social values which express the way people live and interact with each other in the society. It uses punishment as a means to make people bind by those values and secure compliance therewith. In other words, punishment is the sanction imposed on an accused for the infringement of the established rules and norms of society.
The object of punishment is to protect society from mischievous and undesirable elements by deterring potential offenders or by preventing or disabling the offender or by reforming him to a law abiding citizen.
Capital punishment or execution of an offender sentenced to death is the highest form of penal sanction imposed for heinous crimes. It is also known by the name of the death penalty. There has been wide debates all around the world for the death penalty arguing for its deterrent effect, human rights concerns and the possibility of wrongful executions.
This article examines the legal framework of capital punishment in India, its history and evolution and landmark cases which makes the concept of capital punishment more explicit.
What is Capital Punishment?
Etymologically, the term ‘capital’ refers to execution by beheading. Capital punishment, therefore, means punishing a person by beheading. Although there are other ways of capital punishment prevalent in different countries as well , for example, by hanging by neck, shooting, electrocution, gassing etc.
Capital punishment, known as death penalty and formerly judicial homicide, is given to the convicts who have been sentenced to death ( also known as death sentence). Such a person/prisoner is known to be on death row.
Crimes that are punishable by death are known as capital crimes or capital felonies, which although varies depending on the jurisdiction, but commonly include serious crimes like murder, heinous rape, terrorism, crimes against humanity etc.
In India, capital punishment is the highest penalty for crimes under the country’s main substantiate penal legislation, the Bharatiya Nyaya Sanhita ( formerly Indian Penal Code), as well as other laws. The primary method of capital punishment in India is hanging by the neck until dead and is imposed only in the ‘rarest of cases’.
Historical evolution of capital punishment in India
The concept of punishment in ancient India was closely concerned with the maintenance of social order. In Hindu scriptures like the Dharmashastras and the Arthashastra, concepts of capital punishment can be found for certain crimes like murder and treason. Manu, the author of Manusmriti, argued that severe punishments including death were necessary for deterring people from committing heinous crimes. At that period punishment was seen to be a way to deter people from committing any offence in future and hence, it has become a necessary tool to protect society from people who threaten it. The principle of Dand Niti was central to the legal philosophy during that period.
During ancient and mediaeval times, Hindu law provided a system of punishments that included death for certain crimes . The law emphasised that the punishment must match with the gravity of the crime. Under Arthashastra, written by acharya kautilya or Chanakya, death penalty was reserved for the gravest offences like murder , espionage or high treason, it also provided that the king can execute the convicted person to preserve the security and peace of the state. In Hindu law, capital punishment has been allowed but it was not solely viewed as an act of revenge but also as an act of correction.
If we consider the Islamic law, which was introduced in India during the mediaeval period, there has been a shift in the legal framework. The Sharia law ( derived from the Quran and Hadith) provided for capital punishment , for crimes considered Hadd and Qisas ( crimes which are serious in nature and which require retribution). The Mughal Empire which ruled India from 16th to 19th century acted as per the Islamic laws. Although, the approach of capital punishments differed from Akbar to Aurangzeb.
Then , came the British, the Britishers brought significant changes to the legal system, marked by the introduction of the English common law. The Indian Penal Code, 1860 became the cornerstone of India’s criminal justice system and provided for the death penalty for various offences. British India has seen wide use of capital punishments to suppress dissent. Many protesters of British rule and freedom fighters were executed due to their activities to bring independence. These executions led to large protests against colonial rule. One such infamous instance of death penalty during British India was the execution of Bhagat Singh and his associates in 1931- this event became the turning point and led to rage and outcry of the public in large , which further acted as a catalyst for the Indian independence movement.
Legal framework
Article 21 of the constitution of India provides for the constitutional basis of capital punishment in India. It guarantees the right to life and personal liberty but explicitly allows for deprivation of life according to the procedure established by law. This has been interpreted by the apex court as that death penalty must be imposed only in rarest of the rare cases while ensuring proper and strict adherence to due process of law.
Additionally article 72 and 161 gives the President and Governors respectively, the power to grant pardons, reprives, commutes to the death sentence. Although, the pardoning power is only given to the President. These provisions act as a constitutional safety, allowing review by the executive over judicial decisions.
Now , in India there are certain crimes termed as capital crimes for which death penalty is imposed, such crimes are :
- Murder (section 302 of IPC)
- Kidnapping for ransom and the victims dies ( section 364A of IPC)
- aggravated penetrative sexual assault against children under POCSO Act, 2012
- terrorism related offences such as that of the Mumbai blast case of 1993
The execution of the death penalty in India has been given in section 354(5) of the CrPC, which mandates hanging as the only method. This has led to debates and many people argued for the need of less “barbaric” alternatives , while few argued for a method more “cruel” because of the gravity and increased level of heinous manners of the commission of the crime .
Judicial interpretation and landmark cases
The judiciary has always played an important role in balancing the arbitrary use of the death penalty and the need for having such a deterrent effect on future criminals.
Few landmark case laws are :
- Bachan Singh v. State of Punjab (1980)
This case is a very important case as it established the doctrine of “rarest of rare” case while deciding for the imposition of death penalty on the accused. The doctrine emphasised that death penalty can only be imposed in India when the crime is very heneios and the circumstance is exceptional that only a life imprisonment of the culprit would be an injustice to the victim.
- Macchi Singh v. State of Punjab (1983)
This case is also a landmark case based on the principle of rarest of rare cases laid down by the Bachan Singh case . Macchi Singh had committed a heinous crime of killing 17 people including women and children, out of revenge, which had led to widespread rage in the country. The Supreme Court ( after the appeal) extensively referred to the “rarest of rare” doctrine established in the Bachan Singh v. State of Punjab case and outlined two questions that must be answered before imposition of death sentence….first , whether the crime is so heinous that any other alternate punishment would not suffice. Second, even after considering any mitigating factors, do the circumstances still justify the death penalty?
In this case, the circumstances fall within the scope of rarest of rare cases doctrine and awarded the accused capital punishment.
Arguments for and against capital punishment
Capital punishment has long been considered for debate about its morality and effect on criminal behaviour. Contemporary arguments for and against capital punishment fall under three general headings: moral , utilitarian and practical.
Moral arguments
Proponents of the death penalty believe that a person who has taken another person’s life has no right to stay alive. It’s similar to the concept of an eye for an eye, a limb for a limb and a life for a life. Supporters believe that capital punishment is a just form of retribution which can imbibe fear and morality not only to the person’s having a mischievous mind but also to the law abiding citizens. In contrast, the critics argued that legitimizing the very behaviour that the law seeks to repress- killing- death penalty is counterproductive in the moral message it conveys. They also argue that capital punishment violates the condemned person’s right to life and is inhuman and unnecessary .
Utilitarian arguments
The proponents also justify capital punishment with the argument that by killing convicted murderers , we will be deterring future murderers from killing people.
While the opponents pointed out that research has generally demonstrated that the death penalty is not a more effective deterrent than life or long term imprisonment. Some of the capital crimes are committed in such an emotional state that the offender doesn’t stay in a situation to think about the possible consequences. Also, death has been prescribed in rape cases since 2013 , still , we can find large number of such cases and even the brutality has increased.
Practical arguments
As per the supporters, death penalty also gives a chance to the perpetrators to remorse. As per Thomas Aquinas, by accepting death , the offender could free himself from his evil deeds and escape punishment in the afterlife.
The opponents firmly argued that the justice system is not free of mistakes and flaws. There are good chances that an innocent person may get killed due to lack of sufficient evidence in his favour. They also argued that retribution is immoral and is a sanitized form of vengeance. It doesn’t give the offender a chance to rectify himself and to go back to society.
Conclusion
Capital punishment refers to legal execution of a prisoner on death row. In India it is done by hanging by neck till death. People have different opinions regarding the need for capital punishment or death penalty. Proponents, on one hand, believe that capital punishment is necessary for maintaining law and order in the society, while establishing a deterrent effect on the mind of people which would ultimately reduce crime rates. On the other hand, the critiques argue that capital punishment is not at all necessary and possibilities are there that an innocent person get killed due to flawed system. In India, capital punishment is awarded only to the convicts of the rarest of the rare cases where the nature of the crime is heinous and the circumstance is such that life imprisonment is not sufficient, while considering the motive of the convict as well.
References
- en.m.wikipedia.org,https://en.m.wikipedia.org/wiki/Capital_punishment_in_India(last visited March 14,2025).
- Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684.https://www.lawctopus.com/academike/case-comment-bachan-singh-vs-state-of-punjab/
- Macchi Singh v. State of Punjab, (1983) 3 S.C.C. 470.
https://lawbhoomi.com/case-brief-macchi-singh-and-others-v-state-of-punjab/britannica.com,https://www.britannica.com/topic/capital-punishment(last visited March 14,2025)
