The Death penalty which also known as Capital punishment is legally authorized killing of someone as punishment for a crime. The death penalty is a legal process by the state as a punishment for a crime. In simple words, it is a practice in which a person is put to death by the state as a punishment for a crime.
Historical Background of death penalty
Capital punishment is an ancient sanction. There is practically no country in the world where the death penalty has never existed. History of human civilization reveals that there was no period of time when capital punishment has been discarded as a mode of punishment
The history of the death penalty can be traced back to the time of the beginning of the civilization on the planet earth. All the societies observed this method of giving punishment in one way or another. In fact, in earlier times this was considered the only way to deter criminals from committing any crime. This capital punishment was awarded in the form of public execution, keelhauling, slow slicing, etc.
Scope of death penalty in India
In India, death sentence may be awarded for the following offences:
Challenges to death penalty
The constitutional validity of the death penalty was challenged from time to time in various cases.
Jagmohan Singh vs. State of Uttar Pradesh, (1973) 1 SCC 20, in this case the validity of death sentence was challenged on the ground that it was violative of Articles 19 and 21 because it did not provide any procedure. It was contended that the procedure prescribed under Cr. P.C. was confined only to findings of guilt and not awarding death sentence. The five judge bench of the Supreme Court, by a unanimous verdict, upheld the constitutional validity of death penalty held that capital punishment was not violative of Articles 14, 19 and 21. The Supreme Court held that the choice of death sentence is done in accordance with the procedure established by law. It was observed that the judge makes the choice between capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during trial
Rajendra Prasad vs. State of UP, AIR 1979 SC 917 Justice Krishna Iyer empathetically stressed that death penalty is violative of articles 14, 19 and 21. He further said that to impose death penalty the two things must be required:
The special reason should be recorded for imposing death penalty in a case.
The death penalty must be imposed only in extraordinary circumstances.
Bachan Singh vs. State of Punjab, (1979) 3 SCC 7276 the question was again considered in this case where by a majority of 4 to 1 (Bhagwati J.dissenting) the five judge bench of the Supreme Court overruled its earlier decision in Rajendra Prasad. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases’. Bhagwati J. in his dissenting judgement observed that “death penalty is not only unconstitutional being violative of Articles 14 and 21 but also undesirable from several points of view.”
Machhi Singh vs. State of Punjab, AIR 1983 SC 9577 the Supreme Court laid down the broad outlines of the circumstances when death sentence should be imposed. The Court said that the following five categories of cases may be regarded as rarest of rare cases deserving extreme penalty:
Firstly: Manner of Commission of murder – When the murder is committed in an extremely brutal manner so as to arouse intense and extreme indignation in the community, for instance, when the house of the victim is set a flame to roast him alive, when the body is cut to pieces or the victim is subjected to inhuman torture.
Secondly: Motive – When the murder is committed for a motive which evinces depravity and meanness eg. a hired assassin, a cold blooded murder to inherit property, or gain control over property of a ward, or a murder committed for betrayal of the motherland.
Thirdly: Anti-social or socially abhorrent nature of the crime – where a scheduled caste or minority community person is murdered in circumstances which arouse: social wrath; or bride burning for dowry, or for remarriage.
Fourthly: Magnitude of the Crime – Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community or locality.
Fifthly: Personality of victim of murder8
In Sher Singh vs. State of Punjab Chandrachud A.I.R. 1983 S.C 365, C.J. expressing the view of the three judges of The SC held that death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land.
Similarly, In Triveniben vs. State of Gujarat A.I.R. 1989 S.C 142, the Supreme Court asserted affirmatively that the constitution does not prohibit death penalty.
Execution of death penalty
According to Section 354(5) of Cr.P.C., death sentence is executed by hanging the person by neck till death.
In Deena vs. Union (1983)4 SSC 645, of India the constitutional validity of section354(5) Cr..P.C. 1973 was challenged on the ground that by rope as prescribed by this section was barbarous, inhuman and degrading and therefore violative of Art. 21. The court held that section 354(5) of the Cr.P.C., which prescribed hanging as mode of execution as fair, just and reasonable procedure within the meaning of Art- 21 and hence is constitutional.
Death penalty and human rights
Capital punishment is a matter of active controversy all over the world. According to various sources, fifty-eight countries including India have the provision of the death penalty whereas 106 countries have completely abolished it and around 28 countries are in the practice of abolishing it. The simple reason behind the debate of abolishing it or not is its irreversible nature. The person once executed cannot be brought back to life. So if by any chance an error has occurred in conviction then this error cannot be rectified later. There has been a diverse opinion regarding the death penalty in India also. The retentionists argue that it should be given in the most heinous and rarest of the rare crimes as for example Delhi gang rape case the demand for death penalty for the accused was raised. But the abolitionists argue on the religious, moral and ethical grounds and declare it inhuman and callous investment by unsure and unkempt society. Mahatma Gandhi once quoted-“an eye for an eye will make everyone blind.”
Conclusion
In the conclusion, it is clearly evident that death penalty is regarded as constitutional in India. But it is not a solution of any crime if it is solution than why the cases of rarest of rare are increasing instead the number should be decreasing.
