In this article, Arvind Singh discusses the provision of Capital Punishment with reference to Indian Legal System.
Capital Punishment, the word ‘capital’ comes from a Latin term ‘capitalis’ means ‘of the head’. The crimes or offences with results in capital punishment are called as the ‘capital offences’ or ‘capital crimes’.
Capital Punishment is also known as the Death Penalty. There are many countries which has abolished the practice of capital punishment. India, is one of those countries which are in favour of giving capital punishment in certain cases. In present scenerio, when we talk about Human Rights the concept of Capital Punishment seems very contradictary. Different countries have adopted different ways of execution of capital punishment.
In India, the mode of execution is by ‘Hanging by neck till death’. But in the cases of The Army Act, The Navy Act and The Air Force Act Death by shooting is also an option. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950. Section 163 of the Act provides for the form of the sentence of death as:-
“In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death.”
It Depends on the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death. The Army Act, 1950, and The Navy Act, 1957 also provide for the similar provisions as in The Air Force Act, 1950. Even Lawyers in India and whole legal fraternity is divided when it comes to the Capital Punishment.
Capital Punishment is considered as a tool of deterrence which is used to create fear in the mind of the general public so that nobody dares to commit the crime again.
Indian law supports Capital Punishment but it is restricted only to certain crimes:
- 120B of IPC Being a party to a criminal conspiracy to commit a capital offence
- 121 of IPC Waging, or attempting to wage war, or abetting waging of war, against the Government of India
- 132 of IPC Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny
- 194 of IPC Giving or fabricating false evidence with intent to procure a conviction of a capital offence
- 302, 303 of IPC Murder
- 305 of IPC Abetting the suicide of a minor,
- Part II Section 4 of Prevention of Sati Act Aiding or abetting an act of Sati
- 364A of IPC Kidnapping, in the course of which the victim was held for ransom or other coercive purposes.
- 31A of the Narcotic Drugs and Psychotropic Substances Act Drug trafficking in cases of repeat offences
- 396 of IPC Banditry with murder – in cases where a group of five or more individuals commit banditry and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.
- 376A of IPC and Criminal Law (Amendment) Act, 2013 Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender.
Deterrence Theory of Punishment
The basic Idea of Capital Punishment is based on the Theory of deterrence. The object of this theory is to deter i.e. to create a sense of immense fear in the mind of people that they shall not commit same crime. It does not allow any criminal to be dealt with lineancy. In Todays world there is a lot of criticism of Deterrence Theory as it usually related to inhuman and barbaric punishment. At present times when we talk about Human Rights the concept of death penalty seems a bit contradictary.
Constitutional validity of Capital Punishment
The validity was first challenged in the case of Jagmohan Singh v. State of U.P where the SC rejected the argument that the death penalty is the violation of the “right to life” which is guaranteed under Article 21 of the Indian constitution.
Rajendra Prasad v. State of UP, Justice Krishna Iyer has empathetically stressed that death penalty is violative of Articles 14, 19 and 21.
The landmark case of Bachan Singh v. State of Punjab, by a majority of 4 to 1 (Bhagwati J.dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad. The Supreme Court upheld that Provisions related to capital punishment are not violative of Art. 14 (Right to equality), Art. 19 (Freedon of speech and expression) and Art 21 (Right to Life and liberty) of the Constitution. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable, also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases’.
The Supreme Court in Machhi Singh v State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed.
Concept of Rarest of Rare under Sec. 302 IPC
The theory was propounded by the S.C in the case of Bachchan Singh vs. State of Punjab. Earlier, there was only one punishment when an offence under sec. 302 was committed i.e Death penalty. It was a controversial form of punishment because there was no criteria on basis of which capital punishment could be awarded.
A person who committed murder by direct attack was given same punishment as that of a person who has committed murder in a barbaric or heinious way. The Supreme Court settled this dispute in the case of Bachchan singh’s Case. The Apex Court gave the Theory of Rarest of the Rare cases. After these guidlines it was settled that Capital Punishment in Murder cases will be given only when the case will fall under the theory of Rarest of the rare cases.
According to this theory Rarest of Rare case will be the one in which the crime has to be committed in the most heinous way or in extraordinary Circumstances which is beyond the imagination of general public. This has to be decided by the court on the basis of facts and circumstances of the case.
Now, The General Punishment for Murder is Life Imprisonment and for exceptional cases which are covered under rarest of rare than Death Penalty can be awarded.
Pardoning Power of President Under Art. 72 of the Constitution
The President under Art. 72 has following Powers regarding Capital Punishment awarded by The Supreme Court.
- Pardon, Can give Complete Pardon to the accused of the Charges.
- Reprieve, Temporarily suspend the sentence.
- Respite, Awarding less sentence than the original sentence
- Remission, Reducing the amount of original sentence.
- Commutation, Changing one punishment to another.
Capital Punishment Executions in last 15 years
Out of Almost 1400 Death Sentence Awards, only 4 executions were seen in the Last 15 years.
- Dhananjoy Chatterjee (14th Aug. 2004): was executed at Alipore Central Jail, Kolkata. He was charged for Murder and Rape of a 14-year-old girl named Hetal Parekh.
- Mohammad Ajmal Amir Kasab (21st Nov. 2012): was executed at Yerwada Jail, Pune. He was charged for the infamous 26/11 Mumbai Attacks.
- Afzal Guru (9th Feb. 2013): was executed at Tihar Jail, Delhi. He was held to be the Mastermind of the Attack on Parliament on 13 Dec. 2001.
- Yakub Memon (30th July 2015): was executed at Central Jail, Nagpur. Held for sponsoring 13 serial blasts in Mumbai in 1993.
Capital Punishment For Rape under Sec. 376A by Criminal Law (Amendement) Act 2013
The demand for Capital Punishment in the cases of Rape was called for after the infamous Delhi gang Rape case in 2012 i.e Mukesh and others vs. State of NCT of Delhi. After which The Criminal Law (Amendment) Act 2013 was introduced and various sections were added and changes were made. These Changes include addition of Sec. 376A Punishment for causing death or resulting in persistent vegetative state of victim.
“Whoever, commits an offence punishable under sub-section (l) or sub¬section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.”
Capital Punishment and Human Rights
Negative View
” As long as you have Capital Punishment there is no gurantee that innocent people wont be put to death” – Paul Simon
Does Capital Punishment means that a person who commits a capital offence has lost his right to live or that his fundamental right under Art. 21 of our constitution has lost its validity. The Crime rate in India have not decreased despite favouring capital punishment as tool for deterrence. Ninety-five countries of the world have abolished the practice of Capital Punishment and Fifty-eight (including India) countries are those which are still practicing it. The extraordinary offences like muder and rape are usually committed by a person in spur of a moment, anger or anxiety.
‘Legal Murder’, Term used for capital punishment by the Human Rights Activists. To them it is the worst form of punishment in a civilized society. Capital Punishment means that the system has failed to overcome the hurdles through civilized manner. What will this be called, failure of the System as System failed at every single level to restrict commission of crime or Again Failure of System To be unable to control the criminal activities.
Positive View
But, the counter question still remains the same that what is the probablity that if capital punishment is suspended or struck down, the crime rate will fall. Because at present there is at least a fear of death in the minds of persons committing offences. This is one of the biggest tool for those judicial stystems which follow the principle of Deterrence theory of punishment. Every convict knows what he has done and what are its consequences. Every person knows that if he commits murder he may be put to death but if he still commits it whose fault this is.
Capital punishment may seem barbaric, inhuman or montrous but in reality it is the only and last weapon in the hands of Judiciary to curb down criminal activities. As the system in India is so corrupt that a criminal mind behind bars can run his business from jail cannot be stopped from committing a crime again. If there is any extraordinary crime committed , and there is no altenate punishment left, it is better to capitalise the convict that to make the society suffer in the name of Human Rights.
As Bill Mayer said, ” Capital Punishment Works great, every killer you kill never kills again”.
But Power to give Capital Punishment must be used with great care and caution by the Judiciary keeping in mind the basic principles of the criminal law as no innocent shall be punished for the crime which he has not committed.
