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Constitutional Validity of Capital Punishment

An English Barrister Sir James Stephen has remarked, 'No actual punishment deters an individual from committing crimes than death'. Any secondary punishment has hope even if it is very horrible, but death is death. A prisoner awarded of life imprisonment kills three more people in the prison, now he possesses the license to murder because there is no other punishment that can be awarded to him.

Death penalty is based on the same concept as a deterrent punishment. It is punishing an individual for the harm they have caused to another and is believed to discourage others who may do the same. Since the ancient times, the Greek and Romans have punished the culprits of rape, treason, murder and arson by death. This paper contains a study of history of capital punishment, its execution all over the world and in India, recent judgments and the Constitutional validity of this penalty.

In India, generally, there are two motives behind punishing any person by law: one that the culprit shall suffer the consequences of causing any sort of injury to another; and second, that the punishment acts as an example to others and discourages them from causing the same harm or injury to others.

Death is considered as the harshest punishment available in law all over the world. Under any law across the world, death penalty is the highest and most severe nature of punishment that can be given to a person. The legal procedure followed by the state according to which it takes an individual's life to punish them of an offence is called Capital Punishment.

In India, capital punishments are awarded in only rarest of rare cases where the offence committed is grief and of exceptional nature. There are several factors that the Court should keep in mind before deciding the case in the favor of capital punishment being awarded to the wrongdoer. Capital punishment has been in existence since the very beginning of inception of the state. In the ancient times, the king would award anyone the penalty of death without much consideration.

During the colonial era, the British hanged several Indians either after the trial or even before it for revolting against their rule. However, after independence there have been a lot of times where such sort of punishment has been constitutionally questioned. Death penalty or capital punishment when awarded to an individual deprives his right to life under Article 21 of the Constitution of India. However, it has been kept in existence to punish the criminals who have inhumanely committed grievous crimes and have acted out of civil behavior that a sane man possesses.

About 3700 years ago, the death penalty was prescribed in Babylon. In some ancient societies, death penalty was only imposed for most heinous and grievous crimes while some imposed it for minor crimes like theft. In 5thcentury B.C. Rome, death penalty was imposed for disturbing the peace of city at night or even publishing defaming songs. Similarly, in 7th century B.C. Greece, under Draconian Legal code, every offence was punished with death.

In the beginning of imposition of death penalty, generally criminals were publicly executed. This also had its own benefits, as the near ones of the victims and the victims who survived gained grim satisfaction of witnessing the final punishment of those who had harmed them. Public execution served as an example to discourage the potential wrongdoers and it acted as a demonstration of determination of public authorities towards protecting the public. However, in India, public hanging is now held unconstitutional.

Another aspect of these punishments was that commoners were more frequently executed than noblemen. These executions were also based on the social standing along with the nature of crime committed as the foreigners and minorities were treated more harshly than the natives and majority. The methods of death penalty also varied at that time. Some of the common ways to execute the criminals were drowning, burning, boiling, stoning, amputating etc.

In Europe and Great Britain, the most common ways of execution used to be hanging and beheading. In recent times, common ways of execution are electrocuting, hanging, shooting, etc. Even in the ancient times, there were protests against the execution policy, Plato argued that execution should be only awarded to habitual offenders who are unable to reform. Since the 1990s, public executions have only taken place in countries including Saudi Arabia, Nigeria and Iran. Public executions are generally condemned by organizations like the United Nations Humans Rights Committee as they are considered as incompatible with human dignity.

Capital Punishment Internationally

Position in Britain:
Traditionally, hanging was the way of awarding death penalty. Beheading, last used in 1747, was reserved for the highborn. From the Saxon times to the 20th century, hanging was the most common way of executing criminals. However, in 1965, for an experimental period of 5 years, death penalty was abolished, which happened to be permanently abolished in 1969. The last people to be executed were Peter Allen and Gwynne Jones who were hanged on the same day in 1964. The Human Rights Act of UK formally abolished the death penalty as a mode of punishment.

Position in America:
In the USA, capital punishments is a legal penalty in 27 states while it has been abolished in the other 23 states. Following the American revolution, the U.S. Constitution gave both the federal government and the state the right to decide their own penalties.

The penalty of death was widely accepted but not universally as several persons including former Treasurer Dr. Benjamin Rush and 3rd U.S. President Thomas Jefferson expressed their dissent towards capital punishment and supported its abolishment. In 1917, the state of Missouri and Puerto Rico abolished death penalty.

In mid twentieth century, opposition to death penalty strengthened. In the case of Furman vs. Georgia[1], the U.S. Supreme Court declared death penalty unconstitutional as it was 'cruel and unusual'. However, under the new laws, the death penalty imposed in some states was held to be constitutional by the Supreme Court of USA in the case of Gregg vs. Georgia[2].

Position in China:
In China, death penalty is usually awarded to only criminals who have committed grievous offences such as aggravated murder. But China along with punishing offenders committing serious and violent crimes, retains nonviolent crimes such as drug trafficking. It executes highest number of people annually and it is even believed that actual number is far more than what the records show. The Dui Hua Foundation, which is a U.S.-based organization, estimated number of executions which has now declined steadily from 12,000 per year to 2,400 per year in the twenty-first century.

Position in India:
Anti-death penalty activist disputed the actual numbers of execution in the past and claimed that more executions took place than what the report shows. In the year 1975 and 1991, around 40 people were executed. Till 2004, no executions took place but in 2004, a former security man was executed for raping and killing a 14-year-old schoolgirl in Calcutta.

However, in 2005, the numbers increased to 12 and more in consequent years. Today, there are 403 prisoners on death row, and the last execution being the four Delhi Gang rape and murder culprits in March 2020.

Capital Punishment in India
Since the establishment of Indian Constitution, a variety of challenges surrounding the legality and constitutionality of capital punishment has been raised. India is one of the only countries which neither completely abolished the capital punishment nor have created laws which decide the necessary imposition of death penalty for specific crimes. India had adopted the 1861 Penal code in 1947, in which death penalty for murder was provided. During the drafting of the Indian Constitution, abolishment of death penalty was expressed by several members.

Private member bills were introduced in the next two years in the Lok Sabha and Rajya Sabha but none of them were adopted. In the Bachan Singh judgment of 1980, the Supreme Court declared that death penalty should only be used in 'rarest of rare cases' only, however it is not clear that which nature of cases fall in the ambit of these rare cases.

Mode of execution:
The execution of death penalty in India is carried out in two ways namely hanging and shooting to death. Once the death sentence is finalized and all the alternative available remedies have been exhausted, the execution of the culprit is carried out in accordance with the section 345(5)[3] of the Code of Criminal Procedure, 1973. In the Army Act, 1950, Air Force Act, 1950 and the Navy Act, 1957, the execution must be carried out by either hanging by neck or being shot to death.

Doctrine of rarest of rare cases:
Capital punishment or death penalty, in India is based on the doctrine of rarest of rare cases. According to this doctrine, in order to sentence a person to death, the factors shall not be in favor of the accused at all, and the crime test should be fully satisfied. The Court shall consider a variety of factors including personality of the criminal, manner and motive of crime, and society's repugnance, for crimes which have extreme antipathy such as rape of minor girls.

Thus, the courts would award a death sentence when the situation demands for it as a constitutional compulsion which reflects the will of the society. The doctrine of rarest of rare was established in the case of Bachchan Singh vs. State of Punjab[4], in which, the constitutional validity of death penalty for murder under section 302 of the Indian Penal Code was questioned.

The appellant was convicted for the murder of three and was sentenced to death under section 302 by the Session Court.When raised before the High Court, the appeal was rejected, confirming the death sentence. By the way of SLP, the appellant came before the Supreme Court, to raise consideration whether the sentence was based on specific reasons under section 354(3) of Code of Criminal Procedure, 1973.

The Supreme Court dismissed all the challenges regarding the constitutionality of section 354(3) of CrPC and 302 of IPC and held that section 302 of IPC does not violate the letter or ethos of Article 19 of the Constitution. It was held that the concern of dignity of human life assume dissent to taking life of any person by the way of law. This shall not be done in any case except the rarest of rare case. The Court also prescribed few guidelines and principles to be considered while sentencing a culprit to death:

Constitutional validity:
Across the world, there has been demand for abolition of the death penalty. In some of the countries, it has been accepted while in others it has been not. India is one such country where the capital punishment is still in effect in spite of several protests by social workers, lawyers and even judges. It is among the retentionist countries which have retained death penalty and only awards it in rarest of rare cases. J. Krishna Iyer and J. Bhagwati have expressed their support in favour of abolishment of death penalty.

It has been argued several times that death penalty counters one's right to life and that no one shall have the right to deprive one's life. The deprivation of anyone's life is unconstitutional according to Article 21 of the Indian Constitution. It provides for the protection of life and personal liberty of anyone except according to the procedure established by law. Therefore, if there's a procedure then the state can deprive a person of his right to life.

Through various judicial pronouncements, this procedure has been established just, fair and reasonable. This signifies that even the right to life is not absolute. Further, Article 14 of the Constitution provides equality before law and equal protection of laws to every person. The constitutional validity of death punishment was challenged as violative of Article 19 and Article 21but as it did not provide any procedure, the validity of death penalty has been upheld by various courts. Since, the procedure of taking life is fair, reasonable and according to the procedure established by law, the judges are given ample power to award death penalty.

In the case of Jagmohan Singh v. State of Uttar Pradesh[5], the question of constitutional validity of death penalty was raised before a five judge bench. It was argued that death penalty is violative of Articles 19 and 21 as it did not provide any procedure. It was contended by the counsel that the procedure prescribed by Cr.P.C. was confined to only findings of guilt and not awarding death sentence.

The Supreme Court held that the choice of death was in accordance to law. And that the choice between life imprisonment and death penalty can be made by the judge on the basis of circumstances, nature and facts of the crime. By an unanimous decision, the validity was upheld that it does not violate the Article 14, Article 19 and Article 21.

In Rajendra Prasad vs. State of Uttar Pradesh[6], Krishna Iyer J. had observed that death penalty directly affects the right to life of people promised by the Constitution of India. However, death penalty is provided by law and there is no concept of due law in this Article. Therefore, it is valid.

Further, two things are required to impose death penalty in a case:
  1. That the 'special reason' has to be recorded for imposing a death penalty
  2. And that there must be extraordinary circumstances in order to impose a death penalty.

In Bachan Singh vs. State of Punjab[7], by a majority of 4 to 1, the Supreme Court overruled its earlier decision in the case of Rajendra Prasad case. It was held that, death penalty for murder as an alternative punishment did not violate Articles 14, 19, and 21 of the Constitution. This is because, 'public order' described in clause (2) and (4) is different from 'law and order' and also reiterated the principle of death penalty in rare cases.

Further, in Machhi Singh vs. State of Punjab[8], the Supreme Court laid down outlines where death sentence should be awarded. Justice Thakkar, speaking for the Court held five categories of cases that maybe regarded as rarest of rare cases which shall deserve death penalty:

Manner of commission of murder:
When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

Motive for Commission of murder:
When the murder is committed for a motive which evince total depravity and meanness.

Socially abhorrent nature of the crime:
When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them with a view to reverse past injustices and in order to restore the social balance.

In cases of 'bride burning' and what are known as 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

Magnitude of Crime:
When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

Personality of victim of murder: When the victim of murder is:
  • An innocent child who could not have or has not provided even an excuse, much less a provocation, for murder
  • A helpless woman or a person rendered helpless by old age or infirmity
  • When the victim is a person vis a vis whom the murderer is in a position of domination or trust
  • When the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
In Deena vs Union[9], the constitutional validity of section 345 (5) of Indian Penal Code was challenged on the ground that rope was 'barbarous, inhuman and degrading' which violated the Article 21 of the Constitution. However, it was held that hanging as a mode of execution was a procedure that is just, fair and reasonable within the meaning of Article 21. Thus, it was constitutional.

In Sher Singh vs. State of Punjab[10], CJ Chandrachaud expressed the view of three judge bench and held that death sentence is constitutionally valid and permissible within the rule of Bachan Singh. And thus shall be accepted as the law of the land. The Supreme Court in another such case held that Constitution does not prohibit death penalty[11].

In Mithu vs. State of Punjab[12], the section 303 of the Indian Penal Code was struck down as it was held violative of Article 21 and 14 of the Constitution of India. It was observed that the offence under the section was punishable only with capital punishment and did not give the judiciary the power to exercise its discretion and thus result in an unfair, unjust and unreasonable procedure depriving a person of his life.

It has been argued for the longest time by the people who are against the capital punishment that it is an inhuman and callous act on moral, ethical and religious basis. It has been contended that death penalty shall be replaced by life imprisonment or any other alternative punishment. The supporters however have argued that death penalty shall remain in effect for the rarest of rare crimes like Nirbhya gang rape where life imprisonment might not act like a deterrent.

Supporters of the death sentence think that people who commit murder have forfeited their right to life since they have taken the life of another. Capital penalty opponents claim that by legitimizing the precise behavior that the law aims to prohibit, murdering, capital punishment sends the wrong moral message. Furthermore, they argue that capital punishment is unethical when applied to minor offences since it is entirely disproportionate to the harm caused.

Abolitionists also argue that capital punishment is intrinsically inhumane and demeaning, as it violates the condemned person's right to life. There are also questions concerning whether capital punishment can be carried out in a fair and reasonable manner.

Supporters of capital punishment believe that laws and procedures can be crafted to ensure that only those who are truly deserving of death be executed. Opponents, on the other hand, argue that the history of capital punishment demonstrates that any attempt to single out specific types of crimes as deserving of death will be arbitrary and discriminatory.

They also point to additional reasons that they believe restrict capital punishment from being applied equitably, stating that the poor and ethnic and religious minorities frequently lack access to skilled legal representation, which exacerbates racial prejudice. It has been contended that the appeal process is so long that those who are sentenced to death have to wait for cruelly long durations.

Recent Judgments:
In the case of Vinay Sharma vs. Union of India [13], (Nirbhaya Gang rape) the victim was brutally raped by six accused persons. The girl was severely injured after the incident, the accused inhumanely inserted an iron rod in her private parts and then was thrown naked on the road. Unfortunately the girl lost her life to this physically and mentally torturing incident. Out of the six accused persons, one committed suicide in the prison by hanging himself and other bring minor was not sentenced to death. The other four accused were sentenced to death by the trial and High Court after recording detailed reasoning that the case was gruesome and a rarest of rare case. The judgment was concluded after analyzing the aggravating factors largely overweighed the mitigating factors if there were any.

Thus it was concluded that, life imprisonment seemed inadequate for an incident of such grievous nature of crime which is not expected by a human. After filing a bunch of review cases and mercy petitions, the four were hanged in 2020.

In Shabnam vs. the Union of India [14], a woman was sentenced to death by the court and was to be hanged for the first time in India's criminal justice system. Shabnam and her lover assassinated members of her family in this case. In the year 2008, this incident occurred. Shabnam assassinated her family members for refusing to let her marry her lover.

As a result, she devised a horrible murder plot for her family, which served as an aggravating circumstance. She didn't even leave her baby nephew (who was just 10 months old) and forced him to wear a bloody robe. She also requested clemency from the president, which was denied, and she is expected to be hanged by the end of the year.

Surendra Koli vs. State of UP [15], occurred in 2007, was one of the most frightening news for Indians. The bodies of the murdered children and adults were discovered at Mohinder Singh Pandher's home in the Noida village of Nithari. When the case was investigated further, it was discovered that the girls' bodies had been raped, killed, and eaten by him. He was sentenced to death after committing such a crime on fifteen girls. The aggravating factors applied to him. However, due to particular plea bargaining conditions, he was sentenced to life in jail.

Across the world it has been argued that death penalty is barbaric and inhumane in nature and violates the right to life of a person. India has retained the death penalty and firmly stood behind it. However, the courts in various judgments have made it clear that the death penalty can only be awarded in rarest of rare or special cases only.

Looking at the data, we can say that death penalties are only awarded in very few cases of heinous crime. In a lot of cases, the death penalty has been converted into life imprisonment due to various pleadings and other factors. Death penalty acts as a deterrent to discourage grievous and inhumane crimes.

The Constitution of India on the other hand provides enough remedies, even to criminals to protect their legal rights. Moreover, it has been reiterated that right to life is not an absolute right when a person is treated according to the procedure established by law. Thus, capital punishment is constitutionally valid when exercised by the judges in cases where the culprit has committed a crime so gruesome that shocks the conscience of society.

In addition, a person who does not values the life, dignity and safety of others, is not deserving of any sort of sympathy either. Although, the court has not established specific nature of crimes that shall be awarded with death penalty but crimes like rape, aggravated murder and terrorism must be punished with the most severe punishment around like capital punishment.

  1. 408 U.S. 238 (1972)
  2. 96 S. Ct. 2909
  3. When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
  4. (1980) 2 SCC 684
  5. 1973 AIR 947
  6. 1979 SCC(3)646
  7. AIR 1980 SC 898
  8. 1983 AIR 957
  9. (1983)4 SSC 645
  10. A.I.R. 1983 S.C 365
  11. Triveniben vs. State of Gujarat, AIR 1989 SC 142
  12. (1983)2 SSC 277
  13. Writ Petition (Crl.) No.65 OF 2020
  14. Writ Petition (Criminal) No. 88 OF 2015
  15. Criminal Appeal No(s). 2227 OF 2010

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