Capital Punishment in India

Context: The Indian government is considering to form a committee to examine the need for a more humane alternative to death by hanging.

Meaning of Capital Punishment:

Capital punishment, also called death penalty, results in execution of an offender sentenced to death after conviction by a court of law for a criminal offence.
The term “Capital Punishment” stands for most severe form of punishment. It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.

Capital Punishment provided under Indian Laws:

Indian Penal Code

Section 302 – Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.
Section 303 – Whoever, being under sentence of imprisonment for life commits murder, shall be punished with death.
Section 124A – Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Code of Criminal Procedure (CrPC)

Section 366 – When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.
Section 368 – In any case submitted under section 366, the High Court— (a) may confirm the sentence, or pass any other sentence warranted by law, or (b) may annul the conviction and convict the accused of any offence of which the Court of Session might have convicted him, or order a new trial on the same or an amended charge, or (c) may acquit the accused person.
Section 369 – Death Sentence shall be presided by division bench (Bench of 2 Judges) or more, and order should be signed by at least two judges of the bench.

Death Penalty in India:

The death penalty is a legal punishment for certain serious offenses under the Indian Penal Code, but it is imposed only in the most severe cases.
The decision to impose the death penalty is made by a judge after considering the nature and severity of the crime and any aggravating or mitigating factors.
The death penalty is only given in cases where the judge considers the crime to be of such a nature that it warrants the most severe punishment possible.

Death Penalty in Confirmation to Article 21

Article 21 – No person shall be deprived of his life or personal liberty except according to procedure established by law.
Indian Penal Code under Section 302 provides reason for death penalty and Criminal Procedure Code establishes the process of awarding death penalty.
Thus, awarding death penalty or capital punishment cannot be said to be against the principles of Article 21 of the Indian Constitution.

Bachhan Singh v. State of Punjab, 1980

Hanging is done in India in the rarest of rare cases as per the Criminal Procedure Code.
Supreme Court held that the death penalty given to a convict is constitutional and will be done in rarest of rare cases.
The Court said that death penalty is a lawful infliction of death by the state as a punishment for wrongful and heinous committed by the accused.
The Court said that capital punishment is not against Right to life and personal liberty as guaranteed under Article 21 because death penalty through capital punishment has been established under law (Section 366 of Code of Criminal Procedure) and is a legal process.
Thus, state is empowered to take away life of citizens through procedure established by law if they are found guilty of crime committed which is punishable with death penalty and is a rarest of rare cases.

Methods of execution in India:

Hanging
Shooting which is provided for under the Army Act, Navy Act, and Air Force Act.

Mode of execution in question?

Supreme Court is hearing a petition challenging the constitutionality of death by hanging as a mode of execution. The court clarified that the constitutionality of the death penalty is not in question, but rather the mode of execution. The government argues that the method of execution is a matter of legislative policy, and in 2018, the Centre supported death by hanging and did not find the method of execution “barbaric, inhuman, and cruel” compared to other methods such as lethal injection.

Need for removal of Capital Punishment (Law Commission 262^nd Report on Death Penalty):

Does not Serve as Deterrence: Death penalty is no more a deterrent than life imprisonment, which in India can be for the whole life with limited remissions granted after 30-60 years in many cases of serious crimes.
Retribution versus Vengeance: Retribution is important in punishment but not synonymous with vengeance. The “eye for an eye” notion has no place in our constitutionally mediated criminal justice system, and capital punishment doesn’t achieve any valid societal goals.
Restorative & Reformative Justice loses focus on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are forgotten through which accused behaviour can be changed.
Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime.
Death Sentence disproportional for Vulnerable Sections: The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.
Death Penalty Abolished by Most Civilized Nations: In retaining and practicing the death penalty, India forms part of a small and ever dwindling group of nations. That 140 countries are now abolitionist in law or in practice, demonstrates that evolving standards of human dignity and decency do not support the death penalty.

Arguments in Favor of Capital Punishment

Arguments Against Capital Punishment

It is based on deterrent theory of punishment – and instils fear of punishment including death among wrong doers.
Morally Wrong – Keeping an accused of heinous crimes alive at the cost of the lives of number of citizens or potential victims in the society is morally wrong.
Article 21 – Death Penalty in India in accordance with Article 21 and is also used in Rarest of the Rare Cases.
Death Penalty allows for Right to Appeal – Indian laws and the constitution allow for appeal against the decision of High Court and even Supreme Court. Article 72(c) allows the convict to appeal against the decision of Supreme Court to the President of India if death sentence has been awarded.

Ensures Retribution by State – It ensures retributive justice by the state which deprives a person of his/her life based on the retributive theory of punishment. It is generally argued that retribution even by state is immoral and is a sanitized form of vengeance.
Person suffering from Mental Illness – The United Nations Commission on Human Rights calls upon countries “not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person.
It does not help in reducing or deterring heinous crime.
Time Gap – Generally there is a large gap between awarding of death penalty between awarding of death penalty and execution. This keeps offenders waiting on death row

Overall, the issue of capital punishment is complex and requires a nuanced approach that takes into account the views of all stakeholders, including the victims and their families. Ultimately, the decision on capital punishment in India should be based on a thorough analysis of its effectiveness, fairness, and compatibility with human rights standards.