This article is written by Arya Mishra, a student of Banasthali Vidyapith, Jaipur. This article talks about capital punishment, types of capital punishment, capital punishment in India and many more.

Introduction

In India, the motive behind giving the punishment is based on two aspects, the first one is that the wrongdoer should have to suffer and the other is to discourage others from doing wrong by imposing punishment on wrongdoers. Amongst the different kinds of punishment for a crime in India, this article focuses on Capital Punishment which is also known as the death Penalty which is awarded by the court in the rarest of the rare cases.

In this article, the scope and validity of capital punishment shall be discussed in the context of the Indian Judiciary. Firstly, we should look at the advent of death as a punishment for brutal crimes and this shall be followed by a brief of some of the most famous cases related to Capital Punishment decided by the Indian Courts. The main aim of this article is to give the reader a clear understanding of the condition and view of the Indian Courts in regard to the awarding of Capital Punishment.

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

Death Penalty or Capital Punishment has always been a point of contradiction not only in the Indian Judiciary but also in most developed countries. The state’s authority is both questioned and established after the execution of Capital Punishment. India has made its stance clear on this matter in December 2007 and despite its stance, the Judiciary spares it for extraordinary infringement of the law. In the previous 10 years, the Indian Judiciary has condemned 1,303 individuals to death yet just 4 have been hung till death in this whole decade. There are many human rights movements in India according to which capital punishment is immoral because it affects one person’s right. The Indian Criminal jurisprudence is based on the combination of two theories: one is the Reformative theory, according to which crime seems like a disease. This theory believes that “You cannot cure by killing”. The main aim of this theory is to bring a change in the personality and character of the offender, to make him a useful member of society. The other theory which is followed is Preventive Theory, which says ‘Prevention is better than cure’. It’s better to take prevention before the commitment of a crime. This theory aims at preventing crime by disabling crime by imposing the death penalty on the criminal, or by confining him in prison or by suspending his driving license as the case may be.

The Indian Constitution likewise offered forces to the President and representative to suspend or exculpate capital punishment. In India, the death penalty is granted for the most genuine and horrifying offenses. The death penalty is given for murder, theft with murder, taking up arms against the administration and so forth. This punishment is given when the court arrives at an end that life detainment is lacking, in view of the circumstances of the case. The fundamental point of this examination is to study about the: 

• Capital Punishment in India.
• Constitutionality of Capital Punishment.

Background and origin of capital punishment

Chronicled records demonstrate that even the most antiquated crude clan’s used strategies for rebuffing transgressors, including ending their lives, to pay for the violations they had submitted. Murder regularly warrants this extreme type of punishment. ‘A life for an actual existence’ has been one of the most essential ideas for managing wrongdoing since the beginning of written history. 

The death penalty turns into a typical reaction to an assortment of wrongdoings, including rape and different military offenses as the inborn social orders formed into social classes and mankind made its own self-administered republics. Composed guidelines were caused among the general population to tell them about the punishment to be looked at by them on the off chance that they would partake in any of those wrongdoings. One of the soonest composed archives that bolstered the death penalty was the Code of Hammurabi, which was composed on the stone tables around 1760 BC. It contained 282 laws that were gathered by the Babylonian King Hammurabi, including the hypothesis of “tit for tat.” Several other old reports bolstered the death penalty including the Christian Old Testament, the Jewish Torah and the works of the Draco, an Athenian official, who proposed giving capital punishment to an enormous assortment of wrongdoings in antiquated Greece. 

Early structures for giving capital punishment were intended to be moderate, agonizing and unbearable, for example, being scorched and squashed by an elephant and so forth. Later social orders found that these techniques are extremely merciless and are of strange structure. During the eighteenth and the nineteenth Centuries, legitimate bodies found quicker and less excruciating ways to deal with the death penalty incorporating hanging and executing with the guillotine.

Capital punishment has become more controversial as time passes. The general population, who restrict this training, announce it to be heartless and out of line. They accept that no life ought to be taken, paying little respect to the wrongdoing that has been committed. DNA testing has demonstrated that the blamelessness of a few people waiting for capital punishment and the contention that nobody ought to be executed to abstain from murdering a guiltless individual has developed accordingly. 

To know more about the evolution of capital punishment in India and who all are excluded from capital punishment, please watch the video below:

Types of Punishments

Chapter III of the Indian Penal Code, 1860 (Sections 53 – 75) has set out the general arrangements identifying with the death penalty. The Code has accommodated a reviewed arrangement of punishment to suit the various classes of wrongdoing relying on the gravity of the offense. 

Section 53 accommodates six kinds of punishment that can be given to each convict. These are: 

Section 53-Punishment 

The punishment to which the guilty parties are at risk under the arrangements of this code are death, life imprisonment, detainment (rigorous with hard work and simple), forfeiture of property and a fine.

Amongst these punishments, as provided under the Indian Penal Code, the death penalty or capital is the most brutal form of punishment to be given to any person in the society.

The term ‘Capital Punishment’ is derived from the Latin word ‘Capitalis’ means ‘regarding the head’. Capital Punishment is given to a person when he commits the most grievous crimes against humanity. It is a process that includes the death of a person for his criminal offence, given by a court of law. Capital Punishment varies from place to place, state to state and country to country. It is a legal process whereby a person is put to death by the state as a punishment for brutal crimes. The Judicial decree is that someone is punished in this manner is a death sentence, while the actual process of killing the guilty is an execution. There has been a global trend towards the abolition of capital punishment but in India, there is no such position that was adopted. The obvious element of irreversibility makes this form of punishment different from all others. A guilty once executed for death can never be brought back to life. So if an error occurs while deciding a matter, it cannot be rectified later.

Nowadays, the death penalty is used for those people who commit capital crimes or capital offences such as murder, terrorism, drug trafficking, etc. The persons who are below the age of 18 years are exempted from the death penalty. While some Arabic countries do not follow this exception and they also give the death penalty to those offenders who are below the age of 18 years. In most countries, lethal injection is used as a method for death execution while in some societies; violent death penalties are still being practiced such as shooting, electric chair, etc.

Capital punishment is practiced in countries like USA, China, Iran, Iraq, Japan, Somalia, Saudi Arabia, Malaysia, Taiwan, Vietnam, Nigeria, Afghanistan etc.   

Capital punishment in India

We cannot deny the presence of capital punishment even in the ancient history of India when we look back into Indian history. According to the Hindu teaching, it has been found that capital punishment has been permitted also and forbidden also. Hinduism preaches non- violence i.e. Ahinsa but it also teaches that a soul cannot be killed it is the human body to which the death of an individual is limited. The soul is reborn into another body upon death until Moksha.

The religious civil and criminal law of Hindus is encoded in the Dharmashastras and the Arthashastra. In Dharmasastra, the description of various crimes and their punishments is given including murder, the mixture of castes, etc. In this context, Bhagavad Gita contains that the righteous destruction of the wicked is commended as meritorious.

In India, capital punishment is mainly given for brutal crimes. The President has the power to grant mercy in death penalty cases. When an individual has been given capital punishment by the Sessions Court, it must be affirmed by the High Court. If the convict appeals in the Supreme Court and fails then at that point the convict can ask a mercy petition to the President of India. The Ministry of Home Affairs will set out the Appeals made to the Supreme Court and the solicitations made for the extraordinary leave to appeal to the Court by the convict.

Methods for providing capital punishment all over world

At present, the ancient methods have been abolished for providing capital punishment and new techniques are being adopted in order to reduce the physical pain experienced by the offender while dying. The new methods adopted for providing capital punishment include:

• Hanging
• Beheading
• Stoning
• Lethal Injection
• Shooting by fire squad
• Shooting
• Electrocution
• Gas chamber
• Falling from an unknown height

The method of electrocution was first used as a method of Capital Punishment at Auburn State Prison of New York on August 6, 1890, and this method is at present used in various countries such as England, Russia and, Japan, etc.

During the II World War, a special machine called ‘Guillotine’ was used to kill Nazis and it was used in France for the execution of capital punishment. This machine was invented by Doctor Guillotine; it had a sharp blade with the help of which a person was beheaded. Later this machine was also used by England and Scotland for the execution of the death of the offenders.

The Shooting was used as a technique for providing death sentences in Russia and in China also. In America and Germany, the gas chamber technique was used as a method for the execution of the death penalty, in which the criminal is left to suffocate in a vacuum gas chamber and henceforth die. In this technique, the criminal dies immediately without any physical pain.

Hanging till death is popular in many countries but by considering India in this context, it is illegal to hang a criminal at a public place.

A new method is known as the lethal injection method introduced for the execution of capital punishment. For the first time, it was used at Yokohama in America in 1977. The positive quality of this technique is that it kills the criminal in a few seconds and it does not give any physical pain to the offender. At present, it is used in Canada, England, and other countries. 

Methods of execution in India

In India, the two popular methods of providing capital punishment are hanging and shooting.

• Hanging

All executions in India are carried out by hanging the criminal till death. In 1949, the assassin of Mohandas Karamchand Gandhi i.e. Nathuram Godse was the first person to be hanged till death in Independent India. The Supreme Court of India suggested that the punishment of death sentence should be given in those cases which come into the ambit of ‘rarest of rare’ cases.

Since 2010, the death execution of two persons had been done. One is Afzal Guru, a terrorist who attacked the Indian Parliament in December 2001. His death execution was held in Tihar Jail, Delhi by hanging on February 9, 2013. The other is of Ajmal Kasab, who was the lone surviving terrorist of the Mumbai attack in 2008. His execution for death was done on November 21, 2012, in Yerwada Central Jail, Pune at 7:32 a.m.

• Shooting

The Army Act, 1950 and the Air Force Act, 1950 also provides the provisions and methods for awarding capital punishment. Section 34 of the Air Force Act, 1950 empowers the Court to impose the death penalty to the offences mentioned in Section 34 (a) to (o) of the Act.

Section 163 of the Air Force Act, 1950 provides that:

“In awarding a death sentence, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he is dead or shall suffer death by being shot to death.”

This provides discretionary power to the Court to provide for the execution of the death sentence either by execution or by shooting. As the Air Force Act, 1950, the Army’s Act, 1950 and the Navy Act, 1957 also provide for similar provisions.

Crimes associated with Death Penalty

The crimes which are deserving of death are:

Aggravated murder

According to Section 302 of the Indian Penal Code, 1860, a person who commits murder shall be given the death penalty. In Bachan Singh’s case, the Court held that capital punishment is constitutional only when it is applied as an exception in “the rarest of the rare” cases.

Other offences resulting in death

In the Indian Penal Code, the death penalty is given to an individual who submits a murder during a furnished theft. Submitting or submitting Sati to someone else is additionally deserving of capital punishment. 

Terrorism- related offences not resulting in Death

The utilization of any exceptional classification of explosives so as to complete a blast that could jeopardize one’s life or cause genuine harm to one’s property is deserving of the death penalty.

Rape not resulting in Death

An individual who inflicts injury in  rape, because of which he passes on or is left in a “persistent vegetative state” might be granted capital punishment under the Criminal Law Act, 2013.

Gang rapes are punishable with capital punishment. These were formed after the gang rape of medicinal understudy Jyoti Singh Pandey in 2012 in New Delhi. 

As indicated by the 2018 Criminal Law Ordinance, an individual who rapes a young lady underneath the age of 12 might be given life detainment or sent to jail for a long time alongside fine. The alteration done in 2018 additionally indicates the death penalty or life detainment for the gang rape of a young lady who is younger than 12. These progressions were done in the criminal law after the gang rape and murder of an eight-year-old young girl named Asifa Bano, who set off a ton of political agitation in Jammu and over the entire nation.

Kidnapping not resulting in Death

As indicated by Section 364A of Indian Penal Code, 1860, grabbing not bringing about death is an offense deserving of capital punishment. On the off chance that anyone kidnapped somebody and takes steps to kill him during which the kidnapper act brings about the death of the person in question, he will be at risk under this section.

Drug trafficking not resulting in Death

On the off chance that an individual endeavor to commit any of scope of drug trafficking offenses or financing such kind of drug-related acts, the person in question can be condemned to death. punished by capital punishment.

Treason

An individual who attempts to take up arms or is taking up arms against the administration and helping Navy, Army or Air Force officials, troopers or individuals to submit a revolt will be rebuffed by the death penalty.

Military offences not resulting in Death

If a member of the Army, Navy or Air Force commits an abetment of assault, mutiny, and other related offences, he shall be punished by death penalty.

Other offences not resulting  in death

1. If a person is a party to criminal conspiracy in order to commit a capital offence, he is punishable by the death penalty.
2. A person who attempts to kill a life convict is punishable by a death sentence if the victim is harmed in the attempt.
3. If an individual provides any false evidence against an innocent person, despite being of the knowledge that based on those evidence that person can be given a punishment of death penalty, and if it results in the execution of an innocent person, then the person who provides such evidence will be given the death penalty.

Category of offenders excluded from Capital Punishment

•  Minor

As per the Indian Law, an individual who is younger than 18 years at the time of commitment of the crime can’t be given capital punishment. 

• Pregnant Woman

As per the alteration made in the year 2009, Clemency must be conceded to a pregnant lady who is condemned to the death penalty.

•  Intellectually Disabled

As indicated by the Indian Penal Code, an individual while committing out a heinous wrongdoing, was rationally sick or can’t comprehend that the nature of the demonstration performed by him is risky, can’t be rebuffed by capital punishment.