'Rarest of the Rare' is the principle applied for granting capital punishment in India, but should this rule be made applicable to all types of crimes in India ? This research paper is a study of the basis on which capital punishments are granted in India . Section 302 of IPC imposes death penalty for a person who commits murder likewise Section 305,Section 121,Section 132, section 364A ,Section 376A, Section376E, Section 396 are few sections that imposes death penalty under the Indian Penal Code,1860 (IPC). Capital punishment is often considered as a gruesome form of punishment imposed by the state – which also proves to be imperative sometimes.

Hence, whether or not, capital punishment be imposed in a particular incident of crime is always a wide topic of debate for every citizen of the state – right from news channels to politics and to every common citizens . This research will be about the socio -legal aspects of capital punishment and how it is operated in India.

In order to understand the system of 'capital punishment' one must first understand 'crime'. According to Blackstone , "crime is an act committed or omitted in violation of a public law either forbidding or commanding it" .Criminal liability in India is set up on the maxim 'Actus Non Facit Reum, Nisi Mens Rea', meaning the act itself does not consist of guilty unless it is committed with a guilty mind. According to the 'world population review' of 2022, the overall crime rate in India is 44.43. In such a scenario it becomes imperative for the state to take actions for the welfare of the society.

Hence , this is where 'punishment' comes into effect .
In criminal law "punishment" means "any pain , penalty ,suffering inflicted upon a person by the authority of law and the sentence of the court for some crime committed by him or for his exclusion of a duty enjoyed by law". Without proper implementation of punishment for crime the society will become lawless. So to maintain rule of law punishment should be imposed.

There are many types of punishments, capital punishment is one of such type. The principle followed in India in order to grant capital punishment is rarest of the rare case . This principle is different from that of Iran and Saudi Arabia which follow the "eye for an eye rule" principle according to the Muslim law ,it is also known as the principle of retaliation base on the law of retribution .

Recently capital punishment had been granted in India for the very famous Nirbhaya Gang rape case (Mukesh vs State for NCT of Delhi). Some other cases for which capital punishment has been granted are Shubham vs the Union of India (2015), etc.

Although the rate of death penalty is low in India but since 2016 there is a growth pattern seen in rewarding death penalty in India as 65 per cent of death sentence has been confirmed to be awarded. Rewarding death penalty or capital punishment is where morals come in between . THIS is exactly what makes capital punishment a topic for debate .Therefore ,to understand this lets first discuss the history behind penalty India.

Cases On Death Penalty In India

In Ediga Anamma v. the State of Andhra Pradesh, (1974) the Supreme Court laid down the principle that life imprisonment for the offence of murder is the rule and capital sentence is the exception in certain cases. The Court also stated that a special reason should be given if the court decides to impose a death sentence.

In another case of Bachan Singh v. the State Of Punjab, (1980) the question was raised whether the punishment of the death penalty will amount to murder under Section 302 of the IPC? Another question that was raised in this case was, what all cases will come under exceptional cases for awarding the punishment of death sentence? The Supreme Court held thatSection 302of theIndian Penal Code, 1860(IPC) is constitutionally valid and the death penalty won't amount to murder. It stated that only in the rarest of rare cases that are brutal, the death penalty should be imposed. The Bench stated that numerous circumstances justify the imposition of a lesser sentence. Judges should not be bloodthirsty.

Now the question arises how to determine the rarest of the rare cases? Two factors for that are: 1) When there is extreme culpability of the offender in committing the offence of murder; and, 2) when there is an extreme cause of the offender in committing the offence of murder. The death penalty is also awarded after seeing the aggravating and mitigating factors and balance of the same.

Mitigating Factors

Some mollifying factors observed by the Bench in the corner Bachan Singh case are

• Mental or emotional status of the malefactor;
• Age of the criminated, whether immature or old;
• That the criminated can be reformed;
• That the criminated acted under compulsion.

Aggravating Factors

Some of the aggravating factors mentioned by the Court in the Bachan Singh case are as follows:

• Pre-planned murder;
• Calculated and cold-thoroughbred murder;
• Helpless state of victim;
• Horrendous details of the crime committed;
• Shocking nature of the crime.

But the Court didn't explain how the mitigating and aggravating factors are to be balanced. The Court observed that all similar situations where hanging shouldn't be assessed as discipline can't conceivably be noted down in one place as it's humanly insolvable to anticipate all the unborn circumstances and mortal geste in a society. This balance was mooted under the case Machhi Singh and Others v. the State of Punjab (1983). A feud between the families took down seventeen lives. The Supreme Court explained the mitigating and aggravating factors and also gave the circumstances related to the duty of the reputed discipline. In the aggravating factor, murder should be pre-planned with extreme brutality or boggling a public domestic on or off the duty. And in the mitigating factor, the court considers the circumstances of the lawbreaker along with the circumstances of the crime. Some of the most common aggravating factors mooted in the case are:

• Is there something uncommon and unseen in the crime committed which concurrences death discipline?
• When the manner of committing the crime is extremely abominable, disgusting, cruel, grotesque;
• When the victim has been inhumanly tortured to death;
• Cold-blooded murder with depraved motive;
• Bridegroom burning, setting the house on fire, etc.

Thus, where the case has a more aggravating factor, also in those cases the discipline will be of the death penalty and if there's further of the mitigating factor, also that will amount to life imprisonment.
There has been an proliferation in awarding the death penalty in India since 2016. likewise, in an offence under the Protection of Children from Sexual Offences Act, 2019( POCSO Act); the courts are given the power to doom the discipline for the death penalty. In the following captions, a multitudinous perceptivity into the most horrifying death row cases have been mentioned.

Vinay Sharma v/s Union Of India ( 2020)

The Vinay Sharma v. the Union of India( 2020) case, also famously known as the Nirbhaya gang- rape case, had shocked the heart of the whole country. The unfortunate and brutal incident passed in the astounded downfall of Delhi on a machine. The girl was severely ravished by six indicted which also led to the death of the girl. An iron rod was also fitted into her private corridor and she was thrown naked to the road. All the physical and internal torture led to her death.

When the case was brought before the court, one of the indicted wedded tone- murder in jail and one of the indicted was a chick so he wasn't doomed to death. But the other four indicted were doomed to death and were also hanged in the time 2020. The decision was taken after analysing the aggravating and mitigating factors of the situation. The aggravating factors overbalanced the mitigating factors if any. The death judgment was assessed because life imprisonment sounded shy considering the applicable circumstances of the crime and the inhuman torture committed on the victim which brought about her death.

Shabnam V. Union Of India( 2015)

In Shabnam v. the Union of India,( 2015) the Court awarded a death judgment to the woman and the same was hanged for the first time in the Indian lawless justice system. In this case, Shabnam with her nut killed the members of her family. This incident happed in the time 2008. Shabnam killed her family members because they weren't allowing her to marry her nut. thus, she planned a brutal murder for her family which amounted to be the aggravating factor. She didn't indeed leave her immature bastard( who was only 10 months old) and also led him to trim with blood. She also submitted mercy to the chairman which got rejected and she's substantially to be hanged by coming time.

Capital Punishment Under The Indian Peanl Code 1860.

The Indian Penal Code provides for the death penalty for many such crimes.

They're mooted as follows:

1. One of the crimes that have been connected to the death penalty is waging war against India or trying to do so. Waging war against a country is a crime that's specifically defined in section 121 of the IPC. Anyone who attempts to wage war against India or is successful in waging war may be doomed to death.
2. The death penalty has also been associated with the abatement of revolution. Abatement of fortified rebellion by an officer or member of the army, cortege, or air force is specified in section 132 of the IPC. Consequently, anyone who abets in the commission of a revolution by an officer, dogface, seaman, or airman in the army, cortege, or air force of the Government of India, so that revolution will be committed as a result of that conspiracy, can be penalized by death.
3. Section 194 of the IPC has been added to the list of crimes punishable by death. According to Section 194, fabricating confirmation is punishable by the death penalty if it's done to gain a capital conviction for a crime. A person committing such a crime can also be awarded the death penalty.
4. Section 302 of the IPC imposes the death penalty for a person who commits murder.
5. Abetting or supporting a minor's tone-murder has been associated with the death penalty. Section 305 of the IPC deals with discipline for abetting or supporting a person under the age of 18 or an intellectually disabled person in committing suicide. As a result, anyone who commits this crime can face the death penalty.

Kidnapping for ransom or other purposes is a serious offence punishable by death. Kidnapping a person with the intent to cause them harm or death is specified under Section 364Aof IPC. Any person who commits this crime can face the death penalty.

The following offences were added to the IPC by theCriminal Law (Amendment) Act of 2013for which a court may impose the death penalty:

• Section 376Aspecifies the death penalty for rape that results in death or a permanent vegetative state of the victim.
• Under Section 376E, repeat rape offenders may face the death penalty.
• Section 396 also provides for the death penalty in cases of dacoity with murder.

Exemption Granted to Certain Categories

• Minors

  According to Indian laws, a person who committed a crime while still a minor, that is, before the age of 18, cannot be executed. The lawgivers decided to include minors in the group of malefactors exempted from the death penalty because they allowed that anyone who hasn't reached majority has room for enhancement and might be suitable to learn from his miscalculations by being given the right terrain and education. In addition, our laws give a separate law known as the Juvenile Justice Act (2015), that's only enforced in situations involving minors. This is salutary because it gives culprits a chance to ameliorate.
   

• Pregnant Women

  Pregnant women were added to the list of culprits who are barred from the death penalty. According to Section 416 of the CrPC, if the high court finds that a woman who has been awarded the death judgment is pregnant, the judgment can be laid over or changed to life imprisonment. The logic behind this is that hanging a pregnant woman kills both the woman and the child in her womb. The future child has not committed any wrongdoing and doesn't deserve to die for the actions of the woman. Pregnant women may therefore fall under the category of culprits exempted from the death penalty.
   

• Intellectually Impaired

  According to the law, anyone who's intellectually impaired or challenged may fall under the order of malefactors who are exempted from the death penalty. If a person committing a serious crime is unfit to comprehend the nature and consequences of their conduct, this is occasionally referred to as having an intellectual disability. Because of their intellectual disability, someone with a felonious record might not be aware of the specifics of their crime. Accordingly, the intellectually impaired were added to the list of culprits exempted from the death penalty by lawgivers.

Procedure After the Duty of the Death Penalty Evidence in the High Court

1. Evidence in the High Court

   The session's court shall present the case proceeds to the high court of the applicable state for evidence of the judgment after the judgment is assessed, in agreement with Section 366 of the CrPC. The judgment-passing court is required to transfer the condemned person to jail guardianship with a leave until the High Court confirms the judgment.
    

2. Enquiry and Additional Evidence

   According to Section 367 of the CrPC, the high court may order a further investigation of the incident or the collection of fresh evidence at any point applicable to the condemned person's guilt or innocence.
    

3. High Court's Power to Authorize Rulings or Annul Convictions

   According to Section 368 of CrPC, the high court has the power to affirm a conviction, put any other judgment the court deems applicable, or amend the charges and order a new trial. The court cannot confirm the judgment until the time allotted for filing an appeal has expired.
    

4. Evidence of the New Judgment

   According to Section 369 of the CrPC, any order or judgment submitted to the High Court for evidence, whether it's a new judgment or one already passed by the High Court, must be approved and signed by at least two judges.
    

5. Delivery of a Copy of the Order to the Court of Session

   According to Section 371 of the CrPC, the evidence of the judgment by the court or any other order passed by the Honourable High Court must be transferred to the Court of Session without delay, with the High Court's seal and attested with the official signature of the High Court Official.

Clemency Powers

For the death judgment assessed by the session court to become final, the judgment must be verified by the high court. If the conviction is upheld, the condemned person may file an appeal with the Supreme Court. If the appeal solicitation is denied by the top court, the condemned person may also submit a mercy solicitation to the President of India and the Governor of the state. The President and Governors have the authority, under Articles 72 and 161 of the Constitution, "to grant absolutions, reprieves, respites, or remittals of discipline, or to suspend, remit, or swap the judgment of any person condemned of any offence." These aren't personal powers of the office holders, but are exercised in agreement with Articles 74 and 163, independently, with the backing and advice of the Council of Ministers.


Despite the fact that leniency powers may be utilised for a variety of causes and in a variety of surrounds, they also act as the last line of defence against the possibility of judicial error or a confinement of justice. This puts a heavy burden on those who exercise this power and necessitates careful consideration, close examination of court documents, and thorough examinations when deciding whether to grant leniency, particularly when the solicitation comes from a internee who's about to be put to death and has a verified death judgment from the court.

The " Procedure Regarding desires for Mercy in Death judgment Cases " has been developed by the Ministry of Home Affairs, Government of India, to give guidance to State Governments and captivity authorities regarding the desires for mercy from captures on death row. The Supreme Court summarized these rules in Shatrughan Chauhan v. Union of India( 2014), recording that the Home Ministry considers the following factors while deciding mercy desires:

• Age, gender, internal incapability of the indicted, or the circumstances of the case, such as provocation or a similar defense.
• Cases where the appellate court reached a conviction decision despite expressing doubts about the credibility of the evidence.
• Circumstances where allegedly new evidence is available, primarily to decide whether a new investigation is necessary.
• The high court enhanced the judgment or reversed the verdict on appeal.
• If there are any differences of opinion among the high court judges that would require a referral to a larger bench.
• Examining the evidence to determine guilt in a gang murder case.
• Delays in investigation and trial, etc.

Prosecution Procedure In India
Hanging
Section 354( 5) of the CrPC specifies that hanging is the system of prosecution in the mercenary court system and that it's the only system permitted in India for the prosecution of a mercenary person.
Firing Another prosecution system used in India is shooting. A blasting team member may execute a con who has been given the death penalty. The only organisations able of executing the death penalty in this manner are the Army, Air Force, and Navy. According to the Army Act of 1950, the army court-martial system recognises both hanging and shooting as licit styles of prosecution.

Conclusion
The death penalty, also known as capital discipline, has been used in India since time old. Since the days of the monarchy, the death penalty has been the most common discipline in India for crimes and offences that basically violate the law. There was no conception of grievous or serious crimes that would warrant the death penalty. It's in the present period that, the generalities like ' rarest of rare cases,' ' special reasons,' ' grievous crimes,' ' serious offences,' etc. are taken into consideration before assessing the death penalty.

The death penalty is a contentious issue; the global opposition to it has grown significantly, and numerous nations have abolished it as a means of discipline. Composition 6 of the International Covenant on Civil and Political Rights lays out pivotal protections that signatories who still exercise the death penalty must uphold; but nowhere does it abolish its use. Despite the uproar girding Nirbhaya's case, the International Commission of justices and Amnesty International India both condemned the prosecutions. piecemeal from India, both Australian and American law imposes the death penalty for crimes involving murder and rape.

References:

1. Book: The Indian Penal Code by Ratanlal and Dhirajlal (LexisNexis)
2. Indian Penal Code by Man Mohan Joshi
3. Commentary on the Indian Penal Code
4. The Hindu
5. The Times of India