Death Penalty in India

ABSTRACT

We have come across the rise and fall of various dynasties through the passing centuries. The only thing which stayed common through the course of them all was the use of death punishment as a means of serving justice. Death penalty was awarded only to a person who committed the most cruel kind of act, making death penalty the least morbid punishment for such a heinous offence. Capital punishment is a punishment which has been given all over the world and is considered as a mean to serve justice. Nowadays in India, both the (population?) and the crime rates are increasing at the same time. The crime rates have to be controlled to keep the country at peace. Though the country has legislation deterring and penalising crime, the existing laws have not been able to keep the number of crimes being committed at bay.The punishments which are awarded to the offenders must be severe to reduce the crime rates. There are different kinds of punishments like capital punishment, life imprisonment, imprisonment etc., form the most severe type of penalty. But death penalty is awarded only in the rarest of the rare cases. This paper focuses on Death Penalty or Capital Punishment. It also concentrates on the modes of Capital Punishment and also about the positive and negative impacts on the society. The constitution has also given powers to the Governor and president to suspend the death penalty. This article throws light on the reason for death penalty and its impact on the society and on the wrongdoer.

DEATH PENALTY IN INDIA

India has a large number of crimes and criminals. There are two main reason behind imposing those punishments, one is the wrongdoer must suffer for his mistake and the second one is that he must not repeat that mistake again in his lifetime. To punish the wrongdoer the legislature has imposed may rules and various kinds of punishments. Among the different kinds of punishment death penalty is the highest degree of punishment given to the offenders. Capital punishment or death punishment has been defined as the execution of an offender who is sentenced to death after being convicted by the court of law. The infliction of death by an authorized public authority as a punishment is capital punishment[1]. Capital punishment plays an important role in the Indian Criminal Justice System. The term capital punishment has been derived from the Latin word “capitalis” which means “regarding the head”. In many countries capital punishment is a long-established element of criminal justice. Death penalty differs from place to place and also differs from state to state and even from country to country.

The death penalty is executed in different modes or methods. There are nine methods of execution of death penalty. They are as following: hanging, shooting by firing squad, shooting, beheading, lethal injection, stoning, gas chamber, electrocution, and falling from an unknown height. Hanging is the most common method authorized by law and electrocution, gas chamber, and falling from a height is the least common methods. In most of the cases, death penalty is executed by hanging the offender. Under the Indian Penal Code,1860 Section 53 deals with the kinds of offences in which death penalty can be given as a punishment. It states that death penalty can be awarded for 11 cases. They are: waging war against the government of India, abetting munity, giving or fabricating false evidence whereby an innocent person suffers death, threatening any person to give false evidence resulting in conviction and death of an innocent person, murder, abetment of suicide of a minor or insane or intoxicated person, attempt to murder by life convicts if hurt is caused, kidnapping for ransom, rape causing death or resulting in persistent vegetative state of the victim, second or subsequent offences punishable under section 376, 376-A or 376-D[2] of Indian penal code and dacoity with murder. But by principle, death penalty is awarded only for the rarest of the rare cases. An offender committing a murder and other capital offences can be awarded the death sentence. But the decision to award death sentence must be based on cogent reasons and should not be given as a matter of rule. Elaborate reason must be recorded by the court for choosing death penalty over the sentence of life imprisonment. The Supreme Court is of the opinion that death sentence should be awarded only in the rarest of the rare cases[3]. In Raghubir Singh v. state of Haryana[4], a treacherous murderer deserves sterner sentence, but ameliorative features have to be noticed since judicial temper has more components than indignation against murder. In Attorney general of India v. Lachma Devi[5], it was argued that the punishment of death was improper, unjust and unreasonable as it violated article 14, 19 and 21 of the Indian constitution. The Supreme Court discussed this problem in detail and ruled by a majority of 4:1 that death penalty is not unjust. On the contrary it is in the public interest. The rarest of rare doctrine has not been free from inconsistencies in its application and the courts are still grappling with the million-dollar question as to what case falls in this category.

The capital punishment should be retained to safeguard the society from the criminals. The main aim behind the execution of death penalty is to satisfy the society’s feeling of hatred towards crimes. The security of the society lies in removing the criminals from the society and the mercy petitions should be rejected by the president and by the governor. There is no alternative punishment for capital punishment as such, life imprisonment is considered as an alternative at times, but it has a lesser impact. The crime rate keeps on increasing. If one offender is punished with death penalty it sets as an example for other offenders. By giving lesser punishment the criminal will continue to do the same offence. Compared to life imprisonment, death penalty is quick and painless. If death penalty is abolished it would embolden the criminal.

As a coin with two sides the death penalty also has a negative impact on the society. This penalty is an admission of the state’s failure to achieve deterrence by threat of capital punishment. Criminal are also a human beings and they can be reformed. Death penalty is barbaric and cruel. The rich rules the law and escapes from punishment, while the poor becomes its prey. Morally it is unjustifiable because it is a murder by the state. The death penalty itself is an offence against the humanity. No body has a right to kill another person because God has given it this life. If the state executes death penalty, the state is considered to commit an offence of murder.

Arguably, capital punishment is here to stay in this country because the time is not ripe for its abolition. In view of terrorism prevailing in Jammu and Kashmir, Naxalite movement in Assam and Nagaland, and the various surreptitious divisive movements that spread this evil in India, it is argued that the death penalty should not be abolished. It would give encouragement to terrorism and separatist force in India if the death penalty is abolished. The Supreme Court and the law commission[6] are also of the same opinion. Hence death penalty plays an important role in criminal justice. It sets an example for the criminals not to commit offence. To reduce the crime rate in India death penalty is the only way.

References:

[1] Walker, the oxford companion of law (1980 Edn.) 184. [2] Sec 376 – punishment for rape; sec 376-A – rape leading to death; sec 376-D – gang rape. [3] Bachan Singh v. state of Punjab, (1980) 2 SCC (Cri) 580. [4] (1975) 3 SCC 37; 1974 SCC (Cri) 733. [5] 1989 supp (1) SCC 264: 1989 SCC (Cri) 413. [6] 35th report (1967) and 262nd report (2015) of law commission of India.

Submitted by,

Niharika Gupta & Rajat Kumar,

4th year, B.A.LL.B.,

School of Law, Bahra University.

© 2019 by AmicusX