IntroductionIndia often boasts of being one of the most liberal and open countries in the world. Our Constitution, we say, is a testimony to this fact. We are sovereign, secular, democratic and what not. And yet, it is astonishing that India is one of the few, to be exact, 54 countries in the world, which still embraces the concept of capital punishment or the death penalty. Through this resource, I shall attempt to highlight the important features of this provision in the Indian context and also try and come up with an argument as to why it is inhuman and unconstitutional.
History of Capital PunishmentThe capital punishment has always been a part of the Indian judicial system. It was incorporated onto the Indian Penal Code right from its beginning in 1860. Similarly, it was also present in the Criminal Procedure Code (1898). According to Section 367 of the CrPC, a person convicted of murder was to be sentenced to death. And this was to be the general rule, not an exception.
A commendable feature that we notice is that right from the days of the British rule, there has been strict opposition to enforcing the capital punishment. In 1931, Gaya Prasad Singh, a member of the Legislative Assembly introduced a Bill in the Assembly which proposed to abolish the death penalty in the country. However, it was overturned. Even after Independence, there have been several attempts, both inside and outside the Parliament, to force the abolition of the death penalty. Of these efforts, those by Prithviraj Kapoor (He was also a member of the Rajya Sabha) in 1958 and by Raghunath Singh in the Lok Sabha in 1962 are noteworthy. Even in contemporary times, there has been strict opposition to the death penalty. Unfortunately, such activities come to the fore only when the sentence is about to be executed.
In 1974, there came into force a new Criminal Procedure Code. One of the major features of the new Code was the overturning of the old ruling regarding the death penalty. By the new code, for all offences involving murder, life imprisonment was to be the norm. The death penalty was to be awarded only in exceptional circumstances.
Constitutional ProvisionsArticle 21 of the Constitution, which deals with the Fundamental Rights of life and liberty, says “No person shall be deprived of his life or liberty except according to procedure established by law.” “ Thus, it can be seen that the death penalty is verily upheld by the Indian Constitution. However, the same article, rather the same sentence, upholding two views at opposite ends doesn’t stand too well with the spirit of the constitution. That is, even though it is logically consistent, it is against the spirit of the Constitution.
Another important provision regarding the capital punishment is the Presidential power of pardon. This appears in Article 72 and says that “The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence….. (c) in all cases where the sentence is a sentence of death.” The objective of this article is to ensure that there be an authority beyond the Supreme Court to help the innocent if in case the Supreme Court, being a human institution has committed an error.
Judicial Review: A Look at some of the landmark cases
Being one of the most controversial provisions in the Constitution, there have been many cases against the death penalty throughout the course of time. Here, I shall throw some light on three cases which have been hailed as landmarks in the history of the Supreme Court. They are:
1. Jagmohan Singh v. State of Uttar Pradesh (1973)
2. Bachan Singh v. State of Punjab (1980)
3. Machhi Singh v. State of Punjab (1983)
1. The Jagmohan Singh case was important in the light that it challenged the constitutionality of the death penalty. However, this was rejected by the Supreme Court, saying “…in the face of these (Art. 21 & 72) indications of constitutional postulates it will be very difficult to hold that capital sentence was regarded per se unreasonable or not in the public interest”. But fortunately, a new CrPC in the same year had changed the death penalty from being the norm to an exception.
2. In 1980, the Supreme Court again upheld the constitutionality of the death penalty in the key case of Bachan Singh v. State of Punjab, although the bench was not unanimous. The Court said, “…for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” It was in this case that the phrase “rarest of rare” was introduced and which continues to be cited and used even till the present day.
3. The Machchi Singh was of importance as the Supreme Court laid down what made cases “the rarest of rare” and thus could invite the death penalty. The following were what came up:
• Manner of commission of murder,
• Motive for murder,
• Anti–social or socially abhorrent nature of the crime,
• Magnitude of the crime and
• Personality of the victim of murder.
What can I conclude from this?This situation has gone on unaddressed in a meaningful manner since the country gained independence in 1947. As the world moves steadily away from the use of the death penalty, I think it is time that India, too take the majority view and abolish capital punishment. However, it has been comprehensively proved by studies that this is not so; that the death penalty is as effective in the deterrence of crime as an ordinary life imprisonment.
The arguments for abolishing the death penalty are numerous and they remain forceful and persuasive. State killing condones violence and brutalizes society. The ever present risk of the execution of the innocent is enhanced by an unsafe judicial system. The trauma and loss suffered by the family of the victim (in murder cases) is inflicted in turn upon the family of the person being executed, thereby continuing the cycle of violence. Thus, I would like to conclude that judicial state killing has no place in the modern world and that India should abolish the death penalty as soon as is practically possible.
“An eye for an eye leaves the whole world blind.” – Mahatma Gandhi