India always had the existence of death penalty as a form of punishment. The Yajnavalkya, a Vedic Hindu sage about which is also written down in Upanishads states that death penalty was earlier awarded to those who helped prisoners run away from prison.Our country extensively used this form of punishment until Britishers enacted and implemented the Indian Penal Code, 1860 which limited its use. The IPC prescribed this punishment only in the cases of criminal conspiracy, murder, waging or attempting to wage war against the Government, dacoity with murder and abetment of mutiny.
Amnesty International 2012 Reportstates that 141 countries have abolished death penalty. By the end of 2017, capital punishment was abolished in almost all the countries with Burkina Faso being the most recent in abolishing it in the year 2018. The countries where it is not abolished its practise is minimal. India is one of the countries which still practice this mode of punishment.
Between the first cases of Independent India that is theexecution of Nathuram Godse and Narayan Apte on 15th November 1949 to the last executed case of Nirbhaya convicts till now, Indian courts have witnessed many cases which questioned the constitutionality of death penalty. The first case to give rise tothe question of validity was Jagmohan Singh v. State of Uttar Pradesh where the appellant statedthat this form of punishment is a violation of Article 14, 19 and 21 as freedom to live is a non – expressive right embedded in the fundamental rights. The contention put forward in the case was rejected by the honourable Supreme Court which communicated that the right of the person can be denied if it is done on reasonable grounds and in the favour of interest of the society. The court also upheld the constitutionality of capital punishment in the case of Bachan Singh v. State of Punjab where it mentioned that death sentencepunishment does not violates Article 19 of the constitution as it does not have any direct impact on it and any any incidental, remote or collateral impactis not a valid factor to be considered. In the case, the court also mentioned that death penalty is not a rule but an exception and will only be applicable in the cases of “rarest of the rare” and “gravest case of extreme capability”. The Supreme Court of India has also given certain guidelines through which it has strongly supported its decision of keeping life imprisonment as a rule and capital punishment only as an option. The guidelines explain rarest of the rare cases as an act which is so uncommon to the crime that it makes life imprisonment seem inadequate as a punishment and it also include those cases where even after given maximum weightage to the mitigating factors there is no alternative to death penalty. The 35th Law Comission Report also favours in retaining death penalty.
“Justice delayed is Justice denied” is a common notion which is very well accepted but criticised. There was a sense of relief among common people after convicts of Nirbhaya case were hanged on 20th March 2020 but at the same time many of them condemned the judicial system for such a long delay of seven years. Many other cases have come forward in past years upon which judiciary has given judgments regarding delayed execution. One such case was Sher Singh v. State of Punjab, the court asserted that delay in executing death penalty makes it inhumane and degradable when it is actually executed and such delay should be considered whether it is till appropriate to execute death penalty or just commute the punishment into life imprisonment. This case led to the 2 years rule, if there is more than 2 years delay in execution then the punishment shall be changed into life imprisonment. Though, this rule was changed and the judgement was overruled in Triveniben v. State of Gujaratstating that no fixed rule can be made for this as usually it takes time of 5 to 6 years between the imposition of death sentence by the session court and exhaustion of every right of the offender to plea for mercy. It was also affirmed that before commuting death punishment into life imprisonment several other factors need to considered along with the reason of delay.
Over the years, it has been discussed that death penalty is a punishment which cannot reversed and anyone later found innocent cannot be retracted. Therefore, such serious form of punishment should not be used as “an eye for an eye” is never the solution. As Benjamin Franklin told “it is better that hundred guilty persons should escape than that one innocent person should suffer” but the legal framework in India is designed in way that it rightly avoids all this kind of ill – happenings where the innocent can be mistakenly executed. Section 366(1) of the Code of Criminal Procedure, 1973 indicates that if Session court passes death sentence then its proceedings shall be submitted to the High Court and the punishment shall only be executed when HC confirms. S 367(1) and (3) of the C.r.P.c respectively confers that if HC believes that further inquiries should be made or additional evidence is there which might have bearing upon guilt or innocence of the person then it should be considered either by the HC itself or the Session court and if the inquiry or evidence is made or taken by the Session court then it should be certified to the High court. This code expresses the need of the judge to record special reasons for given the punishment of death sentence. There are other provisions regarding it in the Indian Constitution. Under Article 72 and 161 mercy petition can be filed by the convicts. Article 134 allows appeal to the SC if HC has reversed the order of acquittal and given the judgment of death penalty or has taken for trial itself a case of the subordinate court and given death sentence. Article 136 prescribes that SC in its discretion can grant special leave to appeal from any judgement, decree, determination, sentence or order. The right of curative petition is also available to the convicts awarded death penalty. Thus, through various laws and sections many safeguards are given to an individual that he can exercise in respect to capital punishment so that no mistake is made and nothing is left to regret later.
Along with Indian Penal Code, 1860 there are other various acts in which capital punishment can be awarded. Like, Protection of Children from Sexual Offences (amended) 2012, Unlawful Activities Prevention Act, 1967, Narcotic Drugs and Psychotropic Substance Act, 1985, Maharashtra Control of Organised Crime Act, 1999 and Schedule Caste and Schedule Tribe Atrocities Act, 1989. Though “eye for an eye” may not always be a solution to situation but abolishing the practise only because others have done is certainly also not the solution to tackle the increasing rate of heinous crime. In India, the nature of crime day by day is being so agonizing and dreadful that it which not be just to eliminate this punishment.
About the author
Nandini Srivastava is a second-year law student at Manipal University Jaipur. Her decision to pursue law was nothing more than instinct and now as a law student, she really enjoys it. After completing her degree she wishes to work at a place where she can apply her knowledge, interact with new people on a daily basis, and help people. She also enjoys watching movies and listening to Bollywood music.