Capital punishment in India

By Karuna Bhardwaj & Akhilesh Singh Student of school of law, Manav Rachna University

Abstract

This article examines Capital punishment is a fundamentally important matter. And if the law violates this serious decision for any reason, that is, the consequences can bring themselves were painful. Under the Indian legal system, the death penalty is only is granted when the crime committed is of such a nature that it cannot be forgiven in fairness, the death penalty should only be considered as a last resort. The concept of death punishment can be followed since ancient times. This can first be seen pragmatically Code of Hammurabi circa 18th century BC. In India. Later it can be observed in many of the judgments passed in India which clearly teach that the death penalty can be let’s reward if there are any “exceptional circumstances”, finally which ones to direct the Board of Judges to adopt such an order. However, the author of this article has also, the technical details and safeguards that were finally implemented before differ on imposing the death penalty.

Keywords - Death Penalty1, Capital Punishment, Judicial Decisions

Introduction

Crime in the world we live in is constantly increasing. The number of murders, kidnappings, rapes, terrorist attacks and child abuse has increased. According to the World Population Survey 2022, India has an overall crime rate of 44.43. In such a situation, legislation and penalties for the prevention2 and prevention of crimes3 must immediately come into force. Punishment, one of the main pillars of modern civilization, is the use of coercive means to enforce the law of the land. The state must punish criminals to maintain law and order in society. These crimes were not previously regulated by any special law or ordinance, and the severity of the punishment was entirely at the discretion of the king of the state. Over time, modern pun theories emerged and the state was given discretionary4 oversight of our rights

1 The death penalty, also known as capital punishment, is a legal process where a person is put to death as a punishment for a crime they have committed.

2 Penalties for prevention can refer to a range of measures put in place to deter individuals and organizations from engaging in activities that could harm others or the environment.

3 Prevention of crimes involves taking measures to reduce the likelihood of criminal behaviour before it occurs.

4 "Discretionary" refers to something that is left to the discretion or judgment of someone. It means that the decision or action is not mandatory or required, but rather it is optional and based on the individual's choice or and the power to maintain law and order. Penalties range from fines and prison terms to death and life imprisonment. The “death penalty”, also known as the “capital punishment”, is the severest or most severe punishment today.

Capital punishment or Death punishment has always been a contentious issue not only in the Indian judiciary but also in most developed countries. After the execution of the death penalty, the authority of the state is both challenged and affirmed.

What is Capital punishment

The death penalty, also known as capital punishment, is the legal process by which a state sentences a person to death for a crime they have committed. Crimes that carry the death penalty vary by jurisdiction, but often include crimes such as murder, treason, espionage, and drug trafficking.

Historical background of capital punishment in India

Capital punishment has a long history in India, dating back to ancient times. The Indian legal system has undergone many changes throughout its history and the death penalty has been a part of this evolution.

In ancient India, the death penalty was used for a variety of crimes, including murder, treason, and crimes against the state. The earliest use of the death penalty was in the Manusmriti5, a law written in Sanskrit in the second century AD.

During British colonial rule, the death penalty was widely used for crimes such as murder, piracy and mutiny. In 1861, the Indian Penal Code was enacted, which provided for the death penalty for a variety of crimes, including murder, terrorism, and drug trafficking.

After India's independence in 1947, the death penalty continued to be used and remains a legal form of punishment for certain crimes. The Indian constitution allows the death penalty for murder, treason and war crimes.

Over the years, there has been much debate and controversy about the use of the death penalty in India. Critics argue that the death penalty is a cruel and inhumane form of punishment that violates human rights, while supporters argue that it is necessary for discretion.

5 Manusmriti is an ancient Hindu legal code that is considered one of the most important texts in the Hindu tradition. It contains detailed instructions on various aspects of Hindu life, including social and moral conduct, religion, and law.

deterrence and justice. In recent years, there has been a trend towards abolition of the death penalty in India. In 2015, the Law Commission of India recommended the abolition of the death penalty for all crimes except those related to terrorism. But from 2023 onwards, the death penalty will remain a legal form of punishment in India.

Capital punishment under Hindu Law

The concept of capital punishment exists in the Hindu legal system, but it has been interpreted differently and has changed over time.

In ancient times, the Hindu legal system, known as the Dharma shastras 6, recognized the death penalty for certain crimes, including murder, treason, and certain types of sexual offenses. Punishment, on the other hand, was not applied indiscriminately and was subject to various procedural and substantive safeguards to ensure fairness and justice.

Today, the Indian Penal Code, based on British common law, governs India's criminal justice system, including the use of the death penalty. The Indian Penal Code allows for the death penalty in certain cases such as murder, terrorism and some drug trafficking cases. However, the use of the death penalty in India is subject to strict statutory and constitutional safeguards to ensure justice, fairness and proportionality.

It is worth noting that Hinduism as a religion does not require a particular position on capital punishment. Different interpretations of Hindu religious texts have led to different views on the subject. Some argue that the death penalty is a necessary and just punishment for certain crimes, while others believe that it goes against the principle of ahimsa7 (non-violence) and the belief in the sanctity of all life.

Crimes punishable by death

Indian criminal law is based on a combination of reformist and deterrent theories of punishment. Punishments must be applied to deter criminals, but the offender must also be given the opportunity to reform. When imposing the death penalty, courts must give detailed reasons for their decision. Several statutes include the death penalty as a punishment, including:

6 The Dharma Shastras, also known as the Dharmasutras, are a group of ancient Hindu texts that outline codes of conduct and ethical principles for individuals and society.

7 The principle of ahimsa teaches that one should refrain from causing harm or injury to any living being, either through physical or mental actions. This includes not only humans but also animals, plants, and even inanimate objects.

Indian Penal Code, 1860

The Indian Penal Code8 contains a number of offenses punishable by death. They are discussed as follows:

One of the crimes punishable by death is waging war or attempting to wage war against India. War against the country is an offense specifically defined in IPC Section 1219. Anyone who attempts or succeeds in waging war against India is punishable by death.

The death penalty was also associated with the suppression of rebellion. Suppression of armed mutiny by an officer or member of the army, navy or air force is defined in section 13210 of the I.P.C and accordingly any person who takes part in the mutiny of an officer, soldier, sailor or airman. Army, Navy or Air Force of the Government of India, so that rebellion arising as a result of such engagement shall be punishable by death.

Section 194 of the Criminal Code11 was added to the list of crimes punishable by death. Under Section 194 of the Act, tampering with evidence is punishable by death if it is done with the intention of obtaining the death penalty for the crime.

Abduction of a person with intent to cause harm or death is defined in Section 364A of the IPC. Anyone found guilty of this crime can face the death penalty. The Criminal Code (Amendment) Act of 201312 added the following offenses to the Criminal Code for which the court can impose the death penalty:

Section 376A provides capital punishment for rape resulting in the death or permanent disability of the victim. Under Section 376E, repeated rape is punishable by death. Section 396 of the Act also provides for the death penalty for vandalism and murder.

One of the most prominent cases related to Section 376A is the Nirbhaya case13 The victim, who came to be known as "Nirbhaya" ("fearless" in Hindi), was brutally assaulted by

8The Indian Penal Code (IPC) is the official criminal code of India. It was first enacted in 1860 during the British colonial period and has undergone several amendments since then. The IPC provides a comprehensive set of laws and regulations to deal with different types of crimes and offenses committed within the country.

9 IPC section 121 outlines that any person who wages war against the Indian government or attempts to do so, or abets the waging of such a war, shall be punished.

10 Section 132 of the Indian Penal Code (IPC) deals with the offense of abetment of suicide

11 Section 194 of the Criminal Code is an important provision that seeks to uphold the integrity of the justice system and public institutions by prohibiting the corrupting influence of bribery.

12 The Criminal Law (Amendment) Act, 2013 introduced several significant changes to the Indian criminal justice system, particularly with regards to crimes against women and children.

13 2017 SCC Online SC 533 six men on a bus while she was returning home from a movie with a male friend. The incident sparked widespread outrage and protests across India and around the world, and led to calls for tougher laws and stricter enforcement of women's rights. The accused were arrested and charged with rape, murder, and other offenses, and were tried in a fast-track court established specifically for the case. The trial court convicted all the accused and sentenced them to death, which was later upheld by the Delhi High Court and the Supreme Court of India.

The Sati (Prevention) Commission Act, 1987

Any person directly or indirectly involved in the commission of Sati is punishable by death under the Sati (Prevention) Act, 198714 .

One of the most significant cases related to the Sati (Prevention) Commission Act is the case of State of Rajasthan v. Sanjay Kumar Bhati which was decided by the Supreme Court of India in 1989. In this case, the accused had been charged with abetting the practice of Sati by providing kerosene to a woman who had attempted to immolate herself on the funeral pyre of her husband.

However, the Supreme Court upheld the constitutionality of the Act, and held that the prevention of Sati was a legitimate objective of the state, and that the Act was a reasonable restriction on the fundamental right to freedom of speech and expression.

A class of criminals exempt from the death penalty

Minors

According to Indian law, a person who has committed a crime while still a minor, i.e. under 18 years of age, cannot be executed. Lawmakers decided to add juveniles to the list of crimes exempt from the death penalty because they believed that anyone under the age of majority has room for improvement and can learn from their mistakes with the right environment and education. In addition, our laws have a separate law known as the Juvenile Justice Act 15 (2015) which only applies to situations involving minors. This is beneficial because it gives criminals a chance to thrive.

A pregnant woman

14 The Sati (Prevention) Commission Act, 1987 is an Indian law that prohibits the practice of Sati, which is the act of a widow immolating herself on her husband's funeral pyre.

15 The Juvenile Justice Act is an Indian law that deals with the care, protection, treatment, and rehabilitation of children who are in conflict with the law or are in need of care and protection.

Pregnant women were added to the list of criminals excluded from the death penalty. If the Supreme Court finds that a woman sentenced to death is pregnant, the sentence can be postponed or changed to life imprisonment16. This is because hanging a pregnant woman kills both the pregnant woman and the child in her womb. The unborn child in the woman's womb has done nothing wrong and does not deserve to die because of the woman's actions. Therefore, pregnant women can be included in the category of criminals exempt from the death penalty.

Why is death penalty still prevalent in India?

To improve the environment of the general public, it is necessary to inculcate the fear of death in the minds of criminals, as it is clear that reform penal theory17 has failed miserably in India and the number of abuses has increased. India also opposed the United General Assembly's decision to abolish or ban the death penalty as it was against the country's legal framework. Although it is considered a legal punishment in India, the death penalty is always applied only in cases of terrorism, intentional suicide of a child, murder, etc.

Abolishing the death penalty would not make sense in the present situation where cases of rape and murder have increased in India and strict action should be taken against the accused. People would be less likely to commit crimes if the death penalty were applied more often when the accused was fully convicted, as it is considered a more frightening punishment than life imprisonment

Case Laws

Case 1: Bachan Singh Vs. State of Punjab18 is an important case in Indian criminal law and jurisprudence on the constitutionality of capital punishment in India. The case was heard by a five-judge bench of the Supreme Court of India and the judgment was announced on 9 May 1980.

In this case, the court had to find out whether the death penalty is constitutional and, if so, under what circumstances it can be imposed. The court said that while the death penalty is constitutional, it should only be imposed in rare cases where the alternative penalty of life

16 Life imprisonment can be imposed for offenses such as murder, attempted murder, conspiracy to commit murder, and some cases of kidnapping and abduction. It is also a possible punishment for some types of drug offenses and acts of terrorism.

17 Reforming penal theory requires a critical evaluation of the existing theories and an exploration of alternative approaches that could better serve the goals of justice, fairness, and social welfare.

18 AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145 imprisonment is "arguably excluded." The court also set certain guidelines to be followed when imposing the death penalty, including consideration of the circumstances of the crime and the individual characteristics of the culprit. The Bachan Singh case remains an important precedent in Indian criminal law, and its principles have been followed and developed in subsequent cases. The decision has been criticized for being too vague and subjective, leaving too much discretion to judges, and failing to account for potential errors and wrongful convictions in capital cases. However, it remains the guiding principle for imposing the death penalty in India.

Case

Ramnaresh and

State of Chhattisgarh is a landmark case in Indian criminal law dealing with the crime of blindness under the Indian Penal Code (IPC). The case was heard by a three-judge bench of the Supreme Court of India and the verdict was announced on 07.05.2012.

In this case, the defendants were charged with the crime of idiocy under section 395 of the Criminal Code, which is punishable by life imprisonment. The accused argued that they were entitled to bail because they had served more than half of the maximum sentence under Section 437 of the Criminal Procedure Code19. However, the court said that the crime of idiocy was a serious crime and the grant of bail was not automatic even if the accused was in prison for a long time. The court noted that the nature and seriousness of the crime, the role of the accused and the possibility of tampering with evidence or threatening witnesses must also be considered when deciding on bail.

Ramnaresh's case highlights the court's discretion in granting bail in serious criminal cases, even when the accused has been in custody for a long time. The case also highlights the nature and seriousness of the crime and the role of the accused and the likelihood of evidence or witness tampering in deciding whether or not to grant bail.

Conclusion

We can conclude that the death penalty has been the most common punishment in India for crimes and misdemeanors that significantly violate the law. There was no concept of grave or serious crimes that justified the death penalty. It is in this era that concepts such as "rare cases", "special reasons", "serious crimes", "heinous crimes" etc. are taken into account

19 Section 437 of the Criminal Procedure Code (CrPC) is related to the provisions for the grant of bail in nonbailable offenses. Under this section, a person accused of a non-bailable offense can apply for bail. However, the grant of bail is not automatic and is subject to certain conditions.