Evolution of the death penalty

The inception of the Death Penalty can be traced back to Eighteenth Century B.C in the Code of King Hammurabi of Babylon, wherein the death penalty was codified for 25 different crimes. The death penalty can also be outlined in the Draconian Code in Athens, which made the death Penalty compulsory for all the types of crimes committed.

The criminals were made to serve the punishment by such means as burning alive, drowning, beating to Death, impalement, and burning alive. It was in the Tenth Century A.D., that hanging became the customary method of execution in Britain. In the subsequent century under the reign of William the Conqueror, it was not allowed to hang people except during wars. With the passage of time even in Britain started refraining from passing the death sentence.[i]

Countries with no death penalty have a lesser number of murders taking place in comparison to the countries prescribing the death penalty. There has been an increase in the worldwide acceptance of the notion that Death Penalty is inhuman, cruel, and a very degrading punishment. It in its entirety is dangerous and endorses violence, with a failed attempt of delivering public safety or of deterring violent crimes. All the major cultures, religions, and regions have now done away with the death penalty. As per the statistics given by the United Nations, more than 150 countries no longer use it or have abolished it.

Criminal Justice System

Trials, prisons and sentences are all a part of a criminal justice system, that seeks to transform law-breakers into law-abiders in one of many ways, as propounded by the theories of punishment. [ii]

This theory can be criticized on the grounds that it allows for a breakdown of law and order in the society because crime goes unpunished and the victim gets no justice.

The reformative theory seeks to take away an individual who has wronged the society and rehabilitate him by individual treatment so that he can be reintroduced into society without posing a threat. The criminal justice system acts as a watchdog over the maintenance of harmony in society.

The deterrent theory purports to discourage the commission of a crime. The punishment inflicted on the offender serves as a lesson for the offender himself as well as others to abstain from committing that crime in the future, or fear facing the same consequences.

Constitutionality of capital punishment in India

The Indian Penal Code contains many provisions where a Court can award the death penalty to a convict in case of life imprisonment. Mostly the provisions challenged by abolitionists are those where the provision provides for both life imprisonment and the death penalty for an offense. This is challenged on the grounds that a convict who has done the same offense may be treated unequally by the court by giving different sentences which is violative of Article 14 of the Constitution.

Some people also argue that it is also violative of Article 245 as it involves excessive and disproportionate delegation of legislative powers to the judiciary. The main contention is that neither did the legislature provide any basis on which the court can differentiate between the two punishments nor did they lay down any principle through which the Court itself can make such classification. The question of punishment has been left open-ended by the legislature.[iii]

In some cases the courts have given death sentence to the convict while in other cases where the convict has done the same offense the court has imposed life imprisonment. It shows that there is arbitrariness in the matter of deciding whether the convict should be punished with life imprisonment or the death sentence.[iv]

Moreover, the judges, by the nature of their profession, are expected to decide the cases objectively. Therefore, there shall not be any arbitrariness in awarding the sentences. Moreover, under Section 235(2) of the Code of Criminal Procedure, the convict has the right to challenge his sentence in a separate hearing. This protects the convict from the arbitrariness of that may take place while deciding his sentence.[v]

Section 354(3) of the Indian Penal Code also provides that the Court should mention special reasons while awarding the death sentence. [vi]

The origin of the Rarest of Rare Doctrine

It was in the landmark judgment of Bachan Singh[vii] which led to the inception of the Doctrine of Rarest of Rare while prescribing the punishment in cases related to the Death Penalty. In this particular case by a majority of 4 is to 1, the constitutionality of the Death Penalty was upheld by the Supreme Court, but also imposed a subsequent rule that it has to be imposed only in the Rarest of the Rare cases without actually defining or limiting the scope of the Rarest of Rare which they used in the judgment.

The decision of the Hon'ble Supreme Court was based upon the 35TH Law Commission Report which had a whole discussion suggesting the courts to uphold the constitutionality of the death penalty and also rejecting the argument that death penalty was in outright violation of the Basic tenets of Fundamental Rights.

After the landmark judgment came the Judgment of Mithu Singh v. State of Punjab[viii], wherein section 303 of the IPC which prescribed a mandatory death sentence for a person who commits murder while he is serving a sentence of life Imprisonment as unconstitutional. Holding it to be unconstitutional the court held that �It is difficult to hold that the prescription of the mandatory sentence of death answers the test of reasonableness.

The circumstances that a person is undergoing a sentence of life imprisonment does not minimize the importance of mitigating factors which are relevant to the question of the sentence which should be imposed for the offence committed by him while he is under the sentence of life imprisonment.�[ix]

Conclusion
The death penalty exists because some crimes shock the conscience of the society and admittedly, deserve to be punished harshly. However, this harsh punishment cannot take away the offender's life itself. The criminal poses a threat to society, but he too is a part of that very society and should be reformed, not thrown out. Since executions have been the norm since time immemorial, countries are reluctant to take the big step of moving away from this norm and taking this big step requires political capital.

Here's where the problem lies. In order to bring a legal change, there first has to be a social change. With the society still believing that taking away somebody's life is justified in some cases, abolishment of the death penalty doesn't seem viable in the near future. In order to bring this change, the society needs to be made aware of the nuances of criminology and penology.

The common man measures every policy's worth in terms of its effect on him, and so he supports the death penalty because it makes him feel more secure. In order to change his mindset, he needs to be shown a bigger picture that is more important and is broader in its aspect, which comes through the study of the fields of criminology and penology.

End-Notes:

1. Death Penalty Information Center, https://deathpenaltyinfo.org/part-i-history-death-penalty
2. Rachel Raj, Theories of Punishment, http://lawnn.com/theories-punishment-kinds-punishment-criminal-law/; Shaswata Dutta, Theories of Punishment - A Socio-Legal View, http://www.legalserviceindia.com/articles/pun_theo.htm.
3. K. Gaur, International perspectives on death penalty 39(01) JOURNAL OF CONSTITUTIONAL AND PARLIAMENTARY STUDY 183, 230 (2005).
4. S. Ayyathurai, Should death penalty go? 106(04) CRIMINAL LAW JOURNAL 49, 50 (2000).
5. Section 235(2), Code of Criminal Procedure, 1973
6. Section 354(3), Code of Criminal Procedure, 1973
7. AIR 1980 SC 898
8. 1988 (3) SCC 607
9. Machhi Singh v. State of Punjab, AIR 1980 SC 898