Death Penalty in India

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“The death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, do we deserve to kill?”

A matter of much questioning and debate, India is amongst one of the 55 retentionist countries who have retained Death Penalty by hanging as its mode of execution which is duly specified under the Code of Criminal Procedure from section 51 to 54. Although these countries prescribe death sentences, there is no international consensus regarding its legality. Indian legal system and jurisprudence has also struggled with the constitutionality of death penalty and outlining the circumstances in which it can be granted. As it was noted in the legendary case of Mithu v. State of Punjab[1] which struck down mandatory death sentence under the Indian Penal code but mandatory death sentences provided under specific criminal legislations the Arms Act.

Death penalty is a legal penalty in India. As per Indian laws, the execution of death sentence is done in two ways i.e. hanging by neck for executing a death sentence for civilians In India, (as per the current position of law, capital punishment is awarded only in the ‘Rarest of the rare cases’ and the primary mode of execution as given under Section 354(5) of the Criminal Code of Procedure, 1973 is ‘Hanging by neck till death’.) and also by shooting in cases relating to armed forces (this is provided for under The Army Act, The Navy Act and The Air Force Act. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in Section 34 (a) to (o) of  The Air Force Act, 1950. It is at the discretion of the court martial whether the mode would be by hanging or by being shot. The Army Act, 1950, and The Navy Act, 1957 have similar provisions.)

While talking about its timeline it has been carried out in five instances since 1995, while a total of twenty-six executions have taken place in India since 1991, the most recent of which was in 2015. In Independent India, the first case was that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on 15 November 1949, other being the case of Dhananjay Chatterjee in 2004 regarding the rape and murder case of a fourteen year school girl,Ajmal Kasab convicted under the 26/11 attacks, Afzal Guru convicted under the 2002 Parliament bombing case and the most recent case of Yakub Memom convicted of the 1993 Bombay bombings.

Both Qasab and Guru were executed in secrecy without informing their family members or the public of the President’s decision. The world got to know only after the hangings had been carried out. And in the Delhi gang rape case four men were found guilty of the gang rape and murder of a woman on a bus in 2012 are due to be executed after reviewing of their petitions and also president decisions on their mercy pleas mostly which have been rejected. The most recent case to be noted here can be of  Shabnam Ali, a death row convict in Uttar Pradesh, is on course to become Independent India’s first woman to be executed. However, the death warrant consisting of the date and time of the hanging is yet to be issued by an Amroha sessions court.

As per Project 39A which is inspired by the Article 39-A which specifies the provision of values of equal justice and equal opportunity, a report which is being presented by the National law University in Delhi it is being noted between 2000 and 2014 trial courts sentenced 1,810 people to death and regarding its history it is being noted 720 prisoners have been executed in India since 1947. Through there has been a practice revolving around the trial courts to give death sentences Supreme Court on the other hand, has been in the process of commuting death punishments to life imprisonments.

426 prisoners were on Death row as on 31st December 2018

378 prisoners were on Death row as on 31st December 2019

It has also been noted that the cases for death row victims is maximum in the states of Maharashtra, Uttar Pradesh and Madhya Pradesh. There have been a sparkling debate over the topic of death penalty and many jurists and judges are of the opinion of abolishing or banning it while many are supporting the concept of death penalty and consider it as a strong deterrence as opposed to life imprisonment but speaking in today’s scenario Death penalty proponents often imposes there arguments in the manner which sheds light on their perspective of most effective manner of execution and those arguments are noted as:

  • It is the rigorous form of punishment and thus the most effective in deterring crime.
  • It makes more sense economically to give death penalty than to incur the cost of a prisoner which creates extra burden on the exchequer.
  • Capital punishment has certainty. In most cases where life imprisonment is awarded, the prisoner manages to procure a pardon after a while. 

These arguments have also been supported by the Thirty-fifth Report of the Law

Commission which argued in favour of the retention of death penalty, and held the view that ‘Experience of other countries could not be conclusive for India. Need for deterrent control provided by capital punishment is greater in various classes of society. There is greater danger in India of increase in violent crimes if capital punishment is abandoned, particularly in respect of professional criminals’.

Their major argument contests that:

When we make examples of people convicted of a crime, a message goes out to the rest, whether as a moral wrong or for fear of retribution, it does affect the society and carries the message across. It creates a conscious inhibition towards the action penalized. The harshness and strictness of the penalty has been proven to act as deterrence, and we do not even need statistics to prove this the criminal justice systems in all countries of the world work on the principle of deterrence.

While these points denote the atrocity of the proponents towards the culprits these arguments are quite flawed in the sense as it shades a sort of eye to eye philosophy or a revengeful attitude which is not good for distributive justice as it then focuses on retributive justice which does not concerns the moral and human rights of a particular individual and thus violating the basic provisions of UNHRC and talking about these facts death penalty is being abolished and banned in many UN countries and  their reasons for this considers the answers of some questions too which is being considered important while dealing it with respect to INDIA:

Is death penalty considered a strong deterrent?

Will it stop Rape or will encourage the rapist to stop doing such crimes?

Is Death penalty really a solution?

Let’s talk about the answer to all these questions which could be specified in points:

  • There is no statistical report which proves its deterrence effect as even after imposing death penalty to many victims, even after the amendment in the POCSO bill child which imposes death penalty child rape still remains to be in process. Reports by the National law University, Delhi i.e. the Project 39A report states that death penalty has not proven to be a strong deterrent or an effective measure as the mode of execution even when seen with to the TADA acts, terrorists especially the jihadis have been engulfed with the ideology to not even fear from death for their sins as their Allah only calls for it and by doing after death they could rest peacefully in the heaven.
  • Death penalty imposes or is based upon retributive justice and is far away from the Utilitarian theory which states  that punishment is a necessary evil and reasons that punishment is inflicted to curb crime should be fair, just and reasonable and thus justice prevailed should be distributive in nature considering or emphasising the basic moral values of human rights and also as it is specifically noted by Ban Ki Moon on the world day i.e. 10th October in the UN General Assembly  that ‘Death penalty has no place in the 21st century, Let our actions be guided by the moral compass of human rights’. There seems to be a general consensus among the developed nations to either abolish capital punishment or severely limit it.  
  • Also being stated by the report the major culprits for the death penalty i.e. 2/3rd of the culprits comes from a lower or a poor background which is an essential point to be noted while discussing it under the sphere of human rights as seen in the case of Dhananjay Chatterjee and Afzal Guru who were executed in secrecy without informing their family members or the public of the President’s decision. The world got to know only after the hangings had been carried out and whose crimes are now being contested or debated in the recent scenario that they were not being able to prove their innocence as coming from poor background and thus not able to arrange good advocates for themselves and thus were being thrashed tortured by the state who though were innocent. 
  • The role of public opinion first gained prominence in the capital sentencing framework through the case of Machhi Singh v. State of Punjab, July 1983, which allowed imposition of the death penalty in case of anti-social or socially abhorrent nature of the crime. However, public opinion and collective conscience have also played a major role in imposition of the death penalty in several cases in India, including Mukesh v. State of NCT Delhi, May 2017.
  • Also being noted is the point that it is arbitrary subjective and  unreasonable as seen in the context of India it is based on the arbitrary test of rarest of rare doctrine which was established in the case of Bacchan Singh v. State of Punjab[2] and is now being rested on the subjective opinion of the judges which they deemed fit to be justified under the rarest of rare doctrine and being seen in the context of development or the image of one country in the international scenario this thing sheds a dark image of one country as it discusses its most important fact of execution on the basis of its subjectivity by the judges dealing the death penalty of a particular victim.
  • Also in the present scene as being noted that in many states specially in Madhya Pradesh during the Shivraj Singh Chauhan government there were points for public prosecutors for bringing the victims to death penalty and thus encouraged corruption and thus was not justified.
  • And also a very essential point being noted is that the Nirbhaya funds which are being allocated to the state are not utilized properly by the states as seen in case of Hyderabad incident where the govt. itself had not fully utilized the Nirbhaya fund.

There is a strong view to find reasons for such crimes that give rise to such death penalties being imposed which would then effectively be in consonance with the human rights as well as be an effective deterrence for eliminating crime in the society.

[1] AIR 1983 SC 473

[2] AIR 1980 SC 898

Author: Nandini Shakya, Devi Ahilya Vishwavidyalaya, Indore, MP

Editor: Kanishka VaishSenior Editor, LexLife India.

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