Author Name:   sahastranshu

Should Death penalty be abolished and done away with? This article throws light upon the view of the Indian Legal system with regard to Capital Punishment.

Death Penalty in India

Death penalty or capital punishment is the highest degree of punishment that can be awarded to an individual under any penal law in force in any part of the world. Capital punishment is the legal procedure of the state in which it exercises its power to take an individual’s life. It has been in existence since the inception of the State itself. In the British era, there have been countless instances of Indians being hanged after trial or even before it. The dawn of Independence brought about a new era in the judicial system of India. It was in stark contrast to the British Judicial system in which the Indians hardly had any access to justice, or the time of empires and kingdoms before it when the ruler of a certain state or kingdom was its ultimate authority and the source of all justice wherein his or her statements verbatim, were adopted as the law of the land. The ruler, thus had the power to condemn any man to death whoever may he or she be, even on a whim.

After 1947, India became a democratic state, and the system of awarding death penalties too changed drastically. The Indian Penal Code in accordance with the provisions enshrined in the Constitution of India provided for awarding of capital punishment for certain specific offences.

Art. 21 of the Constitution, which guarantees to every citizen the fundamental right to life, also expressly states, “no person shall be deprived of his life or personal liberty except according to procedure established by law." This means that under no circumstances your right to live will be taken away from you except by the due procedure established by law, that is the state can take away your life through the given process of law if it deems fit. Not all offences are punishable by death, in fact, most of the agencies do not elicit capital punishment; instead, it is only reserved for the most heinous of crimes.
According to the Indian Penal Code along with other acts eleven offences committed within the territory of India are punishable by death:

The Indian justice system is based on deterrent and reformative measures and the inherent principle of ‘Innocent until proven guilty.’ Thus awarding of a death sentence is an infrequent phenomenon in India and it is no wonder that when it happens it draws the eyes of not only the indigenous media houses but also international media moguls. There are no plausible statistics as to the number of executions that occurred in India after Independence, but the numbers may be on the higher side than the statistics claim.

Apart from the dispute on the number of executions, the death penalty itself has been the centre of debate for decades, with the current penal system drawing the ire of numerous human rights and civil liberties organizations not limited to one single country. Well known International human rights organizations such as Amnesty International, European Centre for Human Rights (ECHR), have constantly been striving in this regard to achieve the goal of worldwide abolition of death penalty for any offence. It is not only the International Organizations but there is a consensus within the United Nations itself to abolish the death penalty for good. Till now India has maintained a clear stance in the international arena on the question of the validity of the death penalty in spite of the ongoing discussions and debates going on both inside and outside the country. One of the major achievements of the international human rights organizations has been the passing of Juvenile Justice (Care and Protection of Children) Act, 2000. Before the passing of the Juvenile Justice Act in 2000, although never practised, the law still allowed people under the age of 18 to be hanged. In the year 2007, the UN proposed to all its member nations to put a stop on awarding death penalty in their respective states for any kind of offence. India firmly rejected the above-mentioned proposal.

“As of June 2004, a total of 118 countries (including Canada, Mexico, Australia, Russia, South American nations and most European nations) have abolished the death penalty in law or practice. Of these, 80 countries and territories have abolished the death penalty for all crimes, fifteen countries have abolished the death penalty for all but exceptional crimes (such as wartime crimes) and 23 countries can be considered abolitionist in practice, i.e., they retain the death penalty in law but have not carried out any executions for the past ten years or more and are believed to have a policy or established practice of not carrying out executions.” As it can be inferred, there is a general solidarity amongst most member states of the world to do away with the death penalty. India, however, does not seem eager to jump on the boat.

The constitutional validity of the death penalty has been challenged many times. It was first challenged in Jagmohan v. State of Uttar Pradesh in which the Hon’ble Supreme Court upheld its validity
stating that the capital punishment itself was not unreasonable per se and neither was its abolition in the public interest and hence not violative of the Art. 19 of the Constitution. It has been challenged many times since but the decision has remained same.

One of the most interesting developments that occurred with regard to the future of the death penalty in India was a report of the 20th Law Commission in 2015. The law commission under the chairmanship of Justice A. P. Shah recommended the abolition of death penalty in a swift manner except in terror related cases. It is to be noted however that the commission did not recommend this abolition immediately, but in a way that its complete abolition can be brought about in the near future. The commission in its report argued that the aim of any penal law was to act as a deterrent, and the capital punishment was unable to fulfill its role in this regard. On the point of exception in terror related cases, the commission came to the conclusion that getting rid of the death penalty as a whole in terror related cases might compromise national security.

Before giving a verdict on whether or not the death penalty should be abolished, few things need to be considered. Although India has up to now, stood firmly behind retaining the capital punishment, the judiciary saves it for the heinous of crimes and it occurs on extremely rare occasions. If we take into account, the number of people who were awarded death sentence and the number of people who were actually executed, the numbers speak for itself. In the last decade, there have been only 3 executions, and all the three were of terrorist cases. In Bacchan Singh v. The state of Punjab, the Hon’ble Supreme Court made it amply clear that the death penalty could only be awarded in the ‘rarest of rare’ cases which shows the inherent intention of the court to minimize the practice of awarding capital punishment as much as possible. This judgement became a benchmark for all the courts in India on which they were to base their decisions of giving death sentences in cases where the guilty had committed a capital offence.

Thus, not only do the courts exercise their power to award capital punishment in extremely rare cases, but also many of these death sentences are commuted to lifetime imprisonment on grounds health, pregnancy, family conditions, etc. Whenever any court awards a death sentence, it mentions special reasons for giving such punishment relating to the special circumstances of the case. Is the death penalty valid in today’s world? It is up to the Judiciary and legal experts to decide.

End Notes
# Bachan Singh vs. State of Punjab (1980) 2 SCC 684
# Death Sentence in India - IPC - Death penalty - Legal Service India available at http://www.legalserviceindia.com/articles/dsen.htm , last seen on 23/06/2017
# Jagmohan v. State of U.P. {1973 SCC [CRI] 169}
# S. 4 The Commission Of Sati(Prevention) Act, 1987
# S. 31(a) The Narcotic Drugs And Psychotropic Substances Act, 1985
# Ss. 120(b), 121, 132, 194, 302, 303, 305, 364(a), 376(a), 396, The Indian Penal Code, 1860.

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