This article has been written by Sudhi Ranjan Bagri, from National Law Institute University, Bhopal and Sarath, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy at LawSikho. This article talks about the ongoing debates on the death penalty, provisions in the Indian Penal Code relating to  the death penalty and the advantages and disadvantages of granting death penalty.

Introduction

“If we believe that murder is wrong and not admissible in our society, then it has to be wrong for everyone, not just individuals but governments as well.”  -Helen Prejean, Dead Man Walking

The debate surrounding the capital punishments has once again been started due to the recent ‘intolerance’ debate in the society. While some people are of the view that the offenders or criminals who indulge in heinous crimes must straightforwardly be punished with capital punishment, while others refute this contention and uphold that the criminals must not be out-rightly given the capital punishment, because it would cause more harm than good to the society at large.

In most of the countries, the death penalty has been abolished, while recognising that death penalty has no place in a democratic and civilised society. But, India is among those countries which still uphold the death penalty. This blogpost, would try to analyse the arguments which are presented from both stands while enumerating the provisions under which death penalty is awarded.

To know more about death penalty in India and related landmark judgements, please watch the video below:

The wide demand and  acceptance of capital punishment in the society influenced the lawmakers to extend the scope of death penalty jurisprudence in India. Following the protest after Delhi rape case, the Parliament had amended the Juvenile Justice Act and permits death penalty for children above 17 years if they have committed serious offences. Similarly, the State Legislature of Andhra Pradesh amended Indian Penal Code and extended capital punishment to the offence of rape. The influence of public opinion over the legislature is quite understandable, because the people elect them. But the Judges, who determine the quantum of punishment, are not elected by the people and they are not bound to uphold the public opinion. The Judges are vested with a duty to uphold the values of the Constitution. In the following paragraphs, the author examines  the how far the practice of death penalty in India is in accordance with the constitutional principles. 

Provisions in the IPC

The Indian Penal Code (IPC) provides that only in following offences, capital punishment could be awarded:

1. Murder (s.302),
2. Abetment of suicide by a minor, insane person or intoxicated person (s.305),
3. Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person (s.195A),
4. Perjury resulting in the conviction and death of an innocent person (s.194),
5. Treason, for waging war against the Government of India (s.121),
6. Abetment of mutiny actually committed (s.132),
7. Attempted murder by a serving life convict (s.307(2)),
8. Kidnapping for ransom (s.364A),
9. Dacoity [armed robbery or banditry] with murder (s.396),
10. Criminal conspiracy (s. 120 B),

Death penalty is also provided under the following special and local laws:

1. Unlawful Activities Prevention Act, 1967 (as amended in 2004)
2. Defence and Internal Security of India Act, 1971
3. Defence of India Act, 1971
4. Commission of Sati (Prevention) Act, 1987
5. Narcotic Drugs and Psychotropic Substances (Prevention) Act, 1985, as amended in, 1988
6. Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
7. Prevention of Terrorism Act 2002, (POTA)
8. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
9. Explosive Substances Act, 1908 (amended in 2001)
10. Arms Act, 1959 (amended in 1988)
11. Laws relating to the Armed Forces, for example the Air Force Act 1950, the Army Act 1950 and the Navy Act 1950 and the Indo-Tibetan Border Police Force Act 1992
12. Various states (Andra Pradesh, Karnataka, Arunachal Pradesh and Maharashtra) have control of Organised Crime Acts which entail the death penalty.

Judicial review: A Look at some of the landmark cases

The awarding death penalty has been one of the most controversial topics of all time. There have been various cases, but the following 3 cases are landmark cases regarding the death penalty.

Jagmohan Singh v. State of Uttar Pradesh (1973)

The Jagmohan Singh case was important because it challenged the constitutionality of the death penalty. The Supreme Court stated that while analysing Article 21 and Article 72 of the Constitution, it cannot be said that capital sentence was regarded per se unreasonable or not in the public interest.Thus, SC upheld that death penalty can be attributed in various crimes. However, an amendment was made in CrPC, which changed the death penalty from being the norm to an exception.

Bachan Singh v. State of Punjab (1980)

Undoubtedly, the most important case in death penalty jurisprudence in India is Bachan Singh v Union on India. In this case, the Supreme Court examined the constitutional validity of the death penalty. The moot problem addressed in this case was whether the sentencing procedure prescribed under Section 354(3) of CrPC is unconstitutional to the extents that it vests  the Court with unguided discretion in imposing death penalty. The majority of judges held that the discretion vested with the judges in awarding death penalty is not unguided because it is exercised in accordance with the well recognised principles crystallized by precedents. Therefore, the discretion vested with the judges are not violative of Article 14 and 21 of the Constitution. However, Justice Bagawati in his minority opinion stated that awarding of death penalty as an alternative to life imprisonment was unconstitutional because it confers unfettered discretion on the judges to choose between  death penalty and life imprisonment.

In Bachan Singh, the court had derived the rarest of rare doctrine to ensure that the judges are not conferred with unguided discretion in awarding capital punishment. According to the doctrine, life imprisonment is the rule and death sentence an exception and death penalty should be awarded only when all the alternatives are unquestionably foreclosed. It also mandated the judges to consider the aggravating and mitigating factors of the case which includes the circumstances of crime and criminal in determining punishment. The Court mandated pre-sentencing hearing to examine the aggravating and mitigating circumstances. However, the question we need to address now, i.e after 40 years of Bachan Singh, is whether the court was successful in creating a coherent and consistent basis for death penalty jurisprudence in India.

Machhi Singh v. State of Punjab (1983)

The Machchi Singh case is important because it was in this case that the Supreme Court laid down the criteria which would make cases “the rarest of rare” and thus could invite the death penalty.

Implementation of the Bachpan Singh framework

Three years after Bachan Singh, the apex court in Machhi Singh v. State of Punjab provided five categories of crime which is suitable for awarding death penalty. The categories provided by Machhi Singh considerably enlarged the scope of awarding capital punishment. It gave more importance to the circumstances of crime and failed to give adequate consideration into the circumstances of criminal and the possibilities of reform. The crime centric approach put forward by Machhi Singh was a deviation from the rarest of rare doctrine expressed in Bachan Singh. Many subsequent cases followed the five categories of Machhan Singh and failed to make discussions on the aggravating and mitigating circumstances of crime and criminal. In Devender Pal Singh v National Capital Territory, by following the Machhi Singh categories, court awarded capital punishment. The Supreme Court in his judgment confirming capital punishment made observations on the brutality of crime but failed to make any remarks on the circumstances of criminal.

As per Bachan Singh, death penalty can be awarded only if the alternative options are unquestionably foreclosed. In a civilized society the best alternative for any crime is to reform the accused. If the accused is no more a danger to the society, then there is no need to execute him. Therefore, the Courts need to examine the possibility of reformation before awarding death penalty. In Santosh Bariyar v. State of Maharashtra, the Supreme Court mandated the courts to provide clear evidence as to why the convict is not fit for any kind of reformation and rehabilitation. However, this condition hasn’t been followed in many cases. In Mohd. Mannan v. State, while upholding the death sentence, the apex court opinioned that the accused is a menace to the society and shall continue to be so and he cannot be reformed. But the court failed to indicate any material on the basis of which the court concluded that the criminal was beyond the possibility of reformation.  

From the analysis of the judicial decisions following Bachan Singh, it is evident that the doctrine of rarest of rare has been most variedly and inconsistently applied by the Courts. In many occasions, judges failed to give adequate consideration to the aggravating and mitigating circumstances and eventually death penalty continued to be imposed arbitrarily and freakishly. The Apex Court itself in its notable decisions recognized the arbitrary awarding of death penalty. In Sangeet v State of Haryana, Supreme Court has acknowledged that due to the subjective and arbitrary application of death penalty, it has become judge centric sentencing. In Mohd. Farooq Abdul Gafur v State of Maharashtra Court observed that in cases having similar facts and circumstances, different Benches have reached diametrically opposite results. 

Special factors on the death penalty jurisprudence in India

Recent trend in India with respect to Sexual Offences: The report on death penalty published by NLU Delhi shows that the rate of awarding capital punishment to the offences of rape with murder is much higher than other offences. There is no doubt that rape is one of the most heinous crimes. But high rate of awarding death penalty (52.4% of capital punishments awarded by trial courts in 2019) in such cases raises questions on the ‘unbiased’ decisions made by the Courts. Judges are not the spoke person of public opinion and they never should be. Many legal scholars opined  that the trial court judges are influenced by the public demand for the capital punishment.  Public opinion is the opinion of the majority. The Judges should be governed by the principles of constitutionalism and not by majority opinion.

Socio-Economic Factors: The recent statistics shows that the death row prisoners in India are more from the backward classes of the society. The data published by the Death Penalty Research Project of National Law University, Delhi shows that over 75% of the death row prisoners  belong to backward classes and religious minorities and the majority of convicts’ families are living  in adjunct poverty. These people who are backward both in economical and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

Future of Death Penalty in India

In Chhannulal Verma v. State of Chattisgarh, Justice Kurian Joseph in his dissenting opinion expressed his various concerns over the inconsistent application of the principles laid down in Bachan Singh. In this case he opined  that the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being “arbitrarily and freakishly imposed” and that capital punishment has failed to achieve any constitutionally valid penological goals. 

Advantages and disadvantages

 Advantages

• Some argue that the punishment which is to be given to a criminal must be dependent on the gravity of the crime which he has committed. For example, if someone has committed a crime like murder or rape, then that person must be given a death penalty because the crime which he has committed is of a very grave nature. The propagators are often of the view that giving death penalty would set an example for other criminals, and thus, it would act as a deterrent, and others who are likely to commit such crimes would refrain from doing so, because of the fear of losing their life. Thus, this would definitely help in reducing the crime rate in society.
• The next point is that the criminal, who has committed such a heinous crime, might re-indulge himself in the same crime, or any other heinous crime after he has served his term of imprisonment and has been released. Thus instead of giving him imprisonment, if he is awarded a death penalty, the society would not be under threat from such person. Thus to prevent the happening of any such crime, the offender must be given the death penalty. However, this logic seems appropriate only to punish serial killers or those who have been regular offenders and usually indulge themselves in one or other form of crime in everyday situations.
• Another possible explanation which would support awarding the death sentence is the torture which is very prevalent in jails, either by the jail officials or the fellow-criminals. It is also argued that those who are awarded the life imprisonment, are left with no other option but to live a futile life behind the bars, and hence, it is better to award them the death penalty.
• Another point is that imprisoning someone is far more expensive than executing him. This, however, cannot be said to be justified to execute every criminal, but only to those who are repeated offenders and are likely to commit heinous crimes in future also.
• The death penalty is sometimes equated as revenge for pain and suffering that the criminal inflicted on the victim. The proponents of the application of death penalty, argues that those who have taken other person’s life does not have a right to live and hence must be executed. This also attaches an emotional point attached to it, the family members of the victims sense a feeling of justice if such criminals are executed and are left open in the society, so as to commit other crimes.
• Another point is regarding the safety of fellow prison inmates and guards. Criminals who have committed heinous crimes like murder, and are serving their life-imprisonment sentence, are believed to have a violent personality, and such criminals may, in future, attack someone during imprisonment.

The abovementioned points emphasize the importance of death penalty for the safety and betterment of human society. However, there are others who believe that it is an immoral and unethical act of violence.

Disadvantages

• The first and foremost point is that if we execute a criminal, there will not be any difference between us and the criminal who has committed the horrifying crime. As terminating the life of the criminal would not terminate the crime itself.
• Awarding capital punishment cannot always be said to be just and appropriate. Those who are not financially sound and cannot afford a good lawyer have to succumb to the death penalty while those who can easily afford good lawyers as they have plenty of money are less likely to be awarded a death penalty, as they usually employ best amongst the lawyers to defend their case. Thus, this doesn’t seems to be just and thus capital punishment must be abolished completely, so as to eradicate this disparity in this society.
• The crimes are related to the psychology of an individual, and not giving him a second chance seems to be unfair. Thus, it can be said that imprisoning a person is always a better option than to execute him because the criminal may realise his wrongful act and might want to change himself.
• Not all convictions which take place are correct; sometimes an innocent person may be wrongly convicted of some heinous crime, which in reality was never committed by him. There are instances in our country, where persons who are convicted are later found to be innocent, and hence, their conviction is revoked, but if based on such conviction the person is executed, this would be a gross injustice and hence must be prevented.
• It is also argued that the there is no relation between the death penalty and crime rate. Executing criminals by awarding death penalty does not decrease crime rate in the society. Crimes are still prevalent in countries where the death penalty exists and thus it cannot be said that death penalty would curb the happening of the crimes.

Conclusion

The Supreme Court has, in various cases, declared that the death penalty should not be declared unconstitutional, because the framers of the Constitution hasn’t seen it fit to do so, and that the legislature also hasn’t taken any steps to abolish the death penalty.

However, there are various arguments which contend for abolishing the death penalty. The emotional stigma of revenge would lead us nowhere else than in a cycle of violence and the sadness. Thus, in my view, executing criminals by awarding them death penalty should be abolished and that there is no place in the modern world for such killings by the State, and that India should abolish the death penalty as soon as possible.

From the analysis of various judgments pronounced by the Courts, I understood that there is no uniformity in precedents. The subjective and arbitrary awarding of capital punishment has made the death penalty jurisprudence into ‘judge centric jurisprudence’. The personal morality (predilection) of judges is more important than the principles laid by precedents. This has created uncertainty in the outcome of death penalty litigation and the same has been acknowledged in various judgments. Therefore, it is high time for the Judiciary to rethink on the constitutionality of death penalty in India.

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