Death penalty or Capital punishment is a subject of controversy among almost every country. Some countries have abolished or partially abolished the death penalty whereas in India death sentence is awarded for heinous and grievous crimes, which is discussed in length in this article. This article reflects the evolution and position of death penalty in India. This article has covered the legal aspect and some landmark cases such as, Jagmohan singh vs state of up, Bacchan singh vs state of punjab, Macchi singh vs state of punjab. The article has reviewed the constitutional validity of death penalty in India. The article emphasizes on the factors that must be looked while rewarding the death penalty. There are certain reason as of why the death penalty should be awarded and then some reasons as of why death penalty must not be awarded, the article is detailed analysis of those reasons. The opinion of philosophers varies on this subject, some say that death penalty must not be abolished because they believe punishments must be proportional to the nature of crime committed. While some say that it is an immoral act of state to deprive a person of his right of life and liberty.
Death penalty also known as Capital punishment basically means execution of an offender sentenced to death after being convicted of a criminal offence. In simple language death penalty means state taking life and liberty of an individual who has committed some grave criminal offence. Talking about global position, fifty six countries has retained death sentence, one hundred six countries has abolished it de jure where as eight countries have abolished it for ordinary crimes while retaining it for special crime circumstances. The position of death penalty in India has always been a subject of controversy. Even though Constitution of India provides every person, right to life according to article 21, still India has not very clear standing in this regard. The opponents of death penalty considers death penalty as inhumane and against human rights. Death penalty definitely is an issue which needs a serious consideration by the Indian justice system.
POSITION IN INDIA
In India death penalty is awarded for most Heinous and Grievous crimes. Though article 21 of Indian Constitution guarantees right to life to every citizen of India, Various offences such as murder, waging war against the government, criminal conspiracy, dacoity with murder are punishable with Death sentence under IPC. Capital punishment is the maximum punishment for these offences, which means the court may or may not award death sentence in these cases. In India, only the president has power to grant pardon, or commune the sentence. Article 72 of Indian Constitution gives power to the president of India to grant pardon, reprieves, respites or remissions of punishment or to suspend, remit or reduce the sentence of any person who has been convicted of an offence. The law commission of India in its very recent report, has suggested immediate abolition of Capital punishment in all cases except of terrorism and waging war against state related cases. This is one of the landmark recommendation of law commission of India and if government of India accepts this recommendation India would enter into a League of nations, which has abolished the death penalty.
There are a number of petitions filed in the supreme court challenging the constitutional validity of death sentence. These petitioners argued that death sentence is violative of article 21 of indian Constitution, the fundamental right to life.
JAGMOHAN SINGH VS. STATE OF UP (1973), the Hon'ble supreme court of India said that the article 21 does not get violated because of death sentence, rather concluded that there exists a procedure and the procedure is fair one. Its because of this procedure that an accused is given utmost time to prove his innocence and it is because of this procedure that state takes the life of an individual, therefore death sentence is constitutionally valid in the country.
BACCHAN SINGH VS. STATE OF PUNJAB (1980), in this landmark case the Hon’ble supreme Court ruled that death sentence can only be applied in the rarest of rare cases. SC said that the judges while giving death sentence must give special reason as to why the death penalty should be given. Which clarifies that death sentence can not be given in every single case but it has to be rarest of rare cases.
MACCHI SINGH VS. STATE OF PUNJAB (1983), in this case the Hon’ble supreme court ruled that capital punishment should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. The supreme Court held that two tests need to be performed to determine which cases fir under this ‘rarest of rare' doctrine. One is Manner of commission of crime and second is the motive for commission of crime. There were other aspects as well that court thought must be taken into consideration while awarding death sentence, such as Magnitude of crime, Personality of the victim and socially abhorrent nature of crime.
GURVAIL SINGH @GALA AND ANR VS STATE OF PUNJAB (2013), in this case the Hon’ble supreme Court said that even if the two test of crime which is aggravating circumstances and mitigating circumstances has been satisfied Against the accused, after that the court has to look into the rarest of rare test which entirely dependent on the consciousness of the society and not judge-centric, judges has to assess whether the society will or will not approve the awarding of death sentence.
ARGUMENTS AGAINST DEATH PENALTY
RIGHT TO LIFE: Every individual, even an offender has a right to life and liberty and that is his right by birth which can not be taken by anyone and at least state. State is there to protect the citizen's right to life guaranteed by the Constitution of India U/A 21 not to just snatch away this right. State can not justify a killing by a killing. The state certainly has a duty to punish the wrongdoer but there are other alternatives which are not as inhumane as murdering the wrongdoer in cold blood.
EXECUTION OF AN INNOCENT: No one can ignore this fact that an innocent can be killed because of the mistakes of justice system. Witnesses, Jurors, Prosecutors, they all can make mistakes and because if which there are definite chances that an innocent might lose his life.
RETRIBUTION IS NOT JUSTICE: An eyes for an eye, the theory of retribution is not justified in every case, just for setting an example does not justifies taking the life of a person. Retribution is morally wrong and it is nothing different than vengeance. We can not say killing is wrong or immoral by killing.
ARGUMENTS FOR DEATH PENALTY
JUSTICE: Every guilty person must be punished and the punishment must be proportional to the nature and magnitude of crime he has done. According to the supporters of death penalty, an offender gives up his right to live as soon as he take other's life.
DETERRENCE: State is using the punishment as a mode of setting an example which in a way discourages the wrongdoers that if they act in this way they can lose their life.
CLOSURE AND VINDICATION: It is often argued by the supporters of capital punishment that it provides closure and satisfaction to the victim's family.
In my opinion, after going to the depths of this exceptionally controversial subject, the death penalty which we have in our country is imprecise. Every individual has right to live and state should make sure that no citizen is deprived of that right. And by sentencing any person death penalty, even if the person is an offender, the state is not only setting an immoral and unethical example but also violating the very fundamental right of the person that is right to life mentioned in article 21 of Constitution of India. I feel that death penalty is no more deterrent than life imprisonment and in fact it might even incite the criminal violence. The Indian justice system must give this subject and it’s provisions a serious consideration and make sure that the law relating to death penalty have fundamental fairness.
Credit: YASHASWI VATSA
Clg name – LLOYD LAW COLLEGE, GREATER NOIDA