Criminal Laws: Capital punishment of India with international perspective
“An eye for an eye only ends up making the whole world blind ’’
- MAHATMA GANDHI
The Death penalty or capital punishment, there is a slight difference between them. The Death penalty means a prisoner who had been sentenced to die but has not yet been executed and capital punishment means his actual execution. It is a process, where the life of a person is taken by the State by following the procedure established by the law. The Death penalty is given in case of heinous crimes. The crimes that are punishable by death are serious and heinous offenses like- murder, terrorism, mass killings, treason and espionage, war crimes and crimes against the state. In India, the death penalty is not abolished. According to the law commission 35th report, 1967 recommended the retention of the death penalty in India. The Supreme Court in the case Buchan Singh v. Union of India held that the death penalty will be given in rarest of the rarest case to reduce the arbitrariness of the penalty. In the case of Ediga Annamma v. State of Andhra Pradesh court held that penalty should be given with special reason and the court made a provision regarding it and made a new clause and added to the Section 354(3) code of Criminal Procedure, 1973 this made life imprisonment a rule and death penalty an exception. In this case, the court said that commuted the death sentence of the accused to life imprisonment considering factors like gender, age and socio-economic background of the accused. According to the law commission, 262nd report the death penalty should be abolished as it has no deterrent effect because crime like rape and murders are still increasing and is should be given only in terror attacks. As stated by the NCRB department report, 4, 15,786 rape cases were reported across India between 2001 and 2017. The number of rape cases was increased from 16,075 in 2001 to 32,559 in 2017 – an increase of nearly 103 percent. This show that crime has no fear of death penalty and it has no deterrent effect.one of the great criminologist named Cesare Beccaria, who is the founder of the classical school, who convinced many people that death penalty should be abolished because it is inhuman, useless and technically speaking, a public assassination. Under the Indian Penal Code, death sentence as a punishment is given under Section 53. Such punishment is very scantily used in India. Countries like France and U.K had abolished capital punishment. The U.K under his Article 2 of his charter of fundamental rights of European Union which says about the prohibition of the use of capital punishment. There are many countries which does not abolished capital punishment like United Arab Emirates, China, and Africa.
Keywords:- Punishment ,Prohibition, death, penalty, execution, abolition, life, liberty, hanging, rarest of the rarest, murder, grave, heinous, crime, victim, procedural, Due process, law, Evidence, conviction.
The term capital punishment is derived from the Latin word “Capitalis” means regarding the head. In India death penalty is given only for serious offence that is rarest of rare case and it is a legal punishment given to accused. India is the country in which it does not give capital punishment in public. It was stated in the case of Lachma Devi vs. Attorney General of India. India only allow death by hanging in civilian court and shooting in military court or both. According to the CRPC, Section 354 clause 5, which states that any person is sentenced to death, the sentence shall direct that he be hanged by neck till he is dead and by Army Act 1950 Section 34, which states that both hanging and shooting are the methods of execution in the military court. Accordingly In constitution of India, Article 21 provides for No person shall be deprived of his life or personal liberty except procedure established by law. When India got Independence Nathuram Godse was the first person who was hanged due to the Assassin of Mahatma Gandhi in the year 1948 and in the year 1989 Kehar singh was hanged due to Conspiracy in the Assassin of Prime minister Indira Gandhi. In the last years 20 years from 2000 to 2020 ,8 accused were hanged including the Dhananjoy Chatterjee, Yakub Memon, Afzal Guru, Ajmal Kasab and the recently 4 accused of Nirbhaya gang rape. This shows that death penalty is given only in rare case which effect the sovereignty of India or regarding the inhuman activities .In the year 2012 India opposed the draft resolution request to ban the capital punishment. India Penal Code prescribes for punishment in India who commits crimes .Section 53 of India penal code prescribes 5 types of punishment including Capital Punishment.
Crimes for which Death penalty can be given in India:-
- Criminal conspiracy-under section 120B of Indian penal code, those person who commit criminal conspiracy shall be punishable with death penalty. In the case of Kehar singh vs union of India- Kehar singh was one of the member who take part in planning of murder of prime minister, Indira Gandhi but not committed, so the court held that this incident fall in the rarest of rare case.
- Waging or abetting of waging of war against the government of India-under section 121 of Indian penal code, whoever wages war against the government of India or abets, shall be punished with death. Incidents of India-Afzal attack on India’s parliament in which nine people got killed by five gunmen armed with guns and explosives was hanged on 9th February 2013. Ajmal Qasab, the only surviving shooter in 2008, was hanged on 21 November 2012 for various crimes, including waging war on India, murder and terrorist acts.
- Abetment of mutiny–whoever abets the mutiny by an officer, soldier in the army shall be punished with death penalty under section 132 of Indian penal code.
- Giving false Evidence with intent to procure conviction of capital punishment– Section 194 of Indian penal code states that, If a person provides false evidence with the knowledge that it can lead to the conviction of a person to capital offence on the basis of such evidence, shall be punished with the death penalty if it results in the conviction and execution of an innocent person.
- Murder of the person–Section 302 ofIndian penal code state that death penalty should be given when the murder of any person shall be punished with death penalty. In Bachan Singh v. State of Punjab, it was held that death penalty is constitutional only when applied as an exceptional penalty in “the rarest of the rare” case.
- Abetment of suicide of child or insane person–Section 305, any person under the age of 18 years who commits suicide or abets the suicide shall be punished with death.
- Kidnapping for ransom– section 364A says that any person who kidnaps any person in order to compel the government to do any act or to pay ransom which can cause death of the person or hurt such person shall be punishable with death penalty.
- Punishment for gang rape on women under the age of 12 years– A Person who is liable for raping a girl who is below 12 years of age may be sentenced to death or sent to prison for 20 years along with fine under section 376DB.
- Dacioty with murder-If any person while committing dacioty murder the person while committing dacoity shall be punished with death penalty. Under section 396 of Indian penal code.
ROLE OF JUDICIARY:-
- Jag Mohan Singh vs. State Of U.P – In this case Question of Constitutionality validity of Death penalty was asked. Does it violate the article 21 and 19? So the court held that it does not violate the Fundamental right of people, as the state is taking away his life due to Grave offences, Like Terrorism, Rape cases where the victim is murder. So the penalty given with due procedure are fair and does not violate the Life of person which is granted under article 14, 21 and 19. So giving death penalty is constitutionally valid.
- Rajendra Prasad vs.State Of U.P– In this case scope of death penalty under section 302 of India penal code was challenged. The court held that the question whether the death penalty should be abolished or not is the question of parliament and not judiciary to decide. In this case only the question of amending the provision was appeal and the provision was amended. As now we can see that under section 302 there is an alternative option to convert death penalty into life imprisonment and various other provision were amended also.
- Bachan singh vs. State of U.P-In this case Doctine of rarest of rare cases were formulated. It is one of the landmark judgement of death penalty.The apex court held that judges will have to give special reasons for giving death sentences to send him in gallows.It was also laid down that mitigating, and aggravating factors should be considered while deciding the matter.
- Macchi singh vs. State of Punjab– In this case court gave the five guidelines whether the case fall in the rarest case or not.
- MANNER OF COMMISSION OF CRIME-When the crime is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
- MOTIVE FOR COMMISION OF CRIME-When the crime is committed for a motive which evince total depravity and meanness. When a hired assassin commits crime for the sake of money or reward. When a cold blooded crime is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or whom the murderer is in dominating position or in a position of trust, and when a crime is committed in the course for betrayal of the motherland.
- MAGNITUDE OF CRIME-when the crime is enormous in proportion. Example- killing all the member of the family, locality, community or particular caste of the person.
- ANTI SOCIAL OR SOCIALLY ABHORRENT NATURE OF THE CRIME-When the crime is socially abhorred which means that killing a person belonging to the backward classes of the community, or burning of a bride in case dowry wishes are not met, or murdering a woman to remarry again.
- Personality of Victim of murder-If victim of the crime is a small child, who couldn’t have provided any reason to the accused to commit the crime, or the crime is committed against a helpless woman, or an old person, and if the victim was mentally challenged, or the victim was a public figure who was loved by the society, the crime will fall under rarest of the rare case.
ACCORDING TO THE Article 6 of International Covenant on Civil and Political Rights (ICCPR) permits the use of the death penalty in limited circumstances, it also provides that nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.There are some protocols which says abolition of death penalty like for example protocol 6 of EUROPEAN CONVENTION ON HUMAN RIGHT which says about abolition of death penalty and protocol 13 says that abolition of death penalty in all the circumstances .According to THE AMERCIAN CONVENTION OF HUMAN RIGHT which says about country which does not abolished the death penalty can allow only in serious crime and with due process of law. In the year 1984, UNITED NATION ECONOMIC AND SOCIAL COUNCIL provides safeguards for those who are facing death penalty. There was four resolution by General Assembly urged States to respect international standards that protect the rights of those facing the death penalty, to progressively restrict its use and reduce the number of offences which are punishable by death which means abolition of death penalty. Countries like china, Iran, Saudi Arabia, Iraq, Egypt, Unites nation, Pakistan, India Bangladesh, Afghanistan still have capital punishment. In India capital punishment is given in only rarest of rare case and publicly hanging is prohibited. China has the highest execution rate. Around 690 execution globally ,were taken place in the year 2018 according to the amnesty report.
MEHTOD OF EXECUTION IN DIFFERENT COUNTRY.
- China- Execution in china is done by lethal injection and firing. Offences like murder, drug trafficking, penalty are given.
- Saudi Arabia- Execution is done by beheading by the sword in public and sometimes occasionally by shooting. Offences like murder, rape, adultery, homosexuality, terrorism allows mandatory death penalty.
- S.A-Execution is done by electrocution and lethal injection. Offences like sexual abuse result into the death, Conspiracy, murder etc.
- Japan-Execution is done by hanging. Death penalty is given in serious matters only.
- North korea-Execution is done by firing or hanging in public murder,rape, child rape etc.
Also death sentence is not imposed on the person who are below the 18 years of age according to the Article 6 clause 2 of ICCPR.
COUNTRIES WITH MANDATORY DEATH SENTENCES FOR THE OFFENCES IN THEIR PENAL LAWS
Ghana, Iran, Malaysia, Nigeria, Pakistan, Saudi Arabia and Singapore.
After the comparative study between India and international perspective we can say that death penalty can be good or not as eye for eye is not safe for the developing country and on the other hand ,giving a second chance to offender they might retaliate with stronger army and not good for society.