This law article discusses the death penalty provision in India, which is the most heinous punishment presently under law for some specific offences. Further, we will discuss its constitutionality and also go over the specific offences for which this punishment can be given.
Historical Concept and Evolution of Death Penalty
Punishment for criminals is decided based on the theories that are followed by that particular judicial system. It also reflects their ideology towards society.
Deterrent, reformative, punitive, retributive and expiatory are five theories of punishment. Indian penal system is focused on reformative theory for justice.
The death penalty is executed in India by hanging till death. Supreme Court and High Court have the authority to sanction the death penalty to offenders. As per section 366 of the Criminal Procedure Code (CrPC), death punishment given by the Court of Session is subject to confirmation by the High Court.
As per section 368 of CrPC, the High Court is empowered to confirm a death sentence.
Origin of Death Penalty
Death penalty as a method of punishment was used back in history. The death penalty was used to show the power and supremacy of an emperor whenever any of the citizens committed an offence against the emperor, his policies, or against the Empire. Harder punishment, such as the death penalty, helped the emperor to maintain his terror and dominance over citizens. In the 18th Century B.C., there was a description of 25 different kinds of punishments in the Code of Hammurabi of Babylon.
At that time, capital punishment was served by different methods such as burning alive, drowning, beating to death and many more. But, near the 10th century A.D., hanging became a customary method in Britain.
Death Penalty in IPC
In India, after independence, the Indian Penal Code of 1860 was adopted for penal provisions. The Indian Penal Code (IPC) included six punishments, including the death penalty and prescribed the same for some specific offences.
In Which Offences Death Penalty Is Given in India
In India, the death penalty is also known as capital punishment. It can be prescribed for certain serious offences as per the Indian Penal Code and other specific laws. Some of the offences for which the death penalty can be awarded include:
- Section 121: Waging/attempting/abetting war against the government of India
- Section 132: Abetment of mutiny
- Section 194: Giving or fabricating false evidence
- Section 302: Murder (Note: Not all murders automatically result in a death penalty, as the circumstances and gravity of the crime are considered.)
- Section 303: Murder by a person already serving life-imprisonment
- Section 305: Abetment of suicide of child or insane person
- Section 307(2): Attempt to murder by life-convict
- Section 364A: Kidnapping for ransom
- Section 376A: Punishment for rape and murder
- Section 376AB: Punishment for rape of women under twelve years of age (added by Criminal Amendment Act, 2018)
- Section 376DB: Gang-rape of women under twelve years
- Section 376E: Repeated sexual offences
- Section 396: Dacoity with murder
Capital punishment in other specific laws:
- Section 4 of Prevention of Sati Act: For Aiding or Abetting an act of Sati
- Section 31A of the Narcotic Drugs and Psychotropic Substances Act: Drug trafficking in cases of repeat offences and providing financial support or taking part in the production or sale of narcotics or psychoactive substances
What Is the Importance of Death Penalty Laws in India
Capital punishment was included as a kind of punishment in the Indian legal system. It was originally added to the code in 1860. The purpose was to discourage individuals from committing heinous crimes.
Supporters believed that this punishment would serve justice for victims and society. However, opponents also supported their view by saying that capital punishment is ethically wrong and there can be a possibility of judicial error and said that a lesser punishment, such as life imprisonment, is a more humane alternative.
There is still ongoing discussion on whether the death penalty is a justifiable and not unnecessary tool in the Indian legal system or should be reconsidered based on societal values or global trends.
Ultimately, opinions on the importance of the death penalty may vary, and discussion often includes ethical, legal and societal considerations. The death penalty is not a necessary punishment given to murderers but a kind of punishment to show deterrence to offenders.
Indian Judgments Regarding the Constitutionality of Death Penalty
The constitutionality of the death penalty has occasionally been challenged on different grounds. Five landmark judgments are summarized below.
1. Jagmohan Singh vs State of Uttar Pradesh (1973)
In this case, the constitutionality of the death penalty was challenged because it violates the right to equality and the right to life and personal liberty, respectively, under Article 14 and Article 21 of the Indian constitution. However, the court refuted and said that the procedure justifies and there is no violation of Article 21.
2. Bachan Singh vs State of Punjab (1980)
In this case, the constitutionality of capital punishment was again challenged. In this case, the “doctrine of rarest of rare cases” was introduced. It was said that the death penalty was given only in cases when there is no alternative punishment that can be given to the offender.
Justice Bhagwati gave dissenting judgment only and said that the death penalty is not only unconstitutional on the grounds of violation of Articles 14 and 21 but also undesirable from some point of view.
3. Machhi Singh vs State of Punjab (1983)
In this case, the judgment given in Bachan Singh was followed, and the court decided to discuss it with a larger and more convincing explanation. Considering the doctrine propounded in Bachhan Singh, certain outlines were given:
- Manner of commission of murder: Extremely brutal, inhuman torture is included in criminal activity.
- Motive: Cold-blooded murder, to inherit property, for personal gain, to torture the victim, or for self-satisfaction.
- Anti-social crime: Social wrath, bride burning for dowry or any heinous criminal activity that badly impacts society.
- Magnitude of crime: Crimes of enormous proportion, like multiple murders of a family or particular caste, community or locality.
- The personality of a victim of murder: Innocent child, helpless due to age or illness.
4. Mithu Singh vs State of Punjab (1983)
In this case, the constitutionality section 303 of IPC was challenged on the ground that it violates the right to life and liberty under Article 21 and the right to equality under Article 14. Section 303 of the IPC mandates a death sentence to the person serving life imprisonment.
This section was originally inserted to prevent the assault on prison staff or other persons and also a thought involved that if a life convict can still commit a crime, then only death punishment would be appropriate for him.
The court held that section 303 is arbitrary and unreasonable and struck down section 303 of IPC on the grounds of violation of Articles 14 and 21.
5. Mukesh and Anr. vs State (NCT of Delhi) (2017)
This criminal appeal was brought by Mukesh and three other convicts of the Delhi gang rape case. Supreme Court upheld the death penalty for four prisoners, asserting that the nature of the crime qualified it as a “rarest of rare cases.” The court considered it a shocking, heinous crime against mankind.
The death penalty is imposed by courts as a punishment for the most heinous crimes, but it has been a topic of debate and discussion in India. Some advocated for its abolition due to concerns about its fairness or human rights issues.
According to the present scenario, the judicial system follows theories like “special reason” and “rarest of rare cases” while pronouncing judgments and capital punishment is pronounced only in exceptional cases. The reason behind these doctrines, to some extent, can be assumed that while deciding on the appropriate sentence, the court should not only consider the circumstances of the crime and the victim but also take into account the circumstances of the criminal and the broader impact of the crime on the community.
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