Capital Punishment in India | Law Optional Notes for UPSC PDF Download

Introduction

• In India, the rationale for imposing punishments is based on two fundamental objectives: the wrongdoer should suffer consequences for their actions, and the punishment should serve as a deterrent to others, discouraging them from committing similar wrongs. This article primarily delves into the concept of Capital Punishment, also known as the Death Penalty, which is rarely imposed by Indian courts.
• This article aims to discuss the scope and validity of capital punishment within the framework of the Indian Judiciary. To achieve this, we'll first explore the historical use of death as a punishment for heinous crimes. Subsequently, we'll provide a brief overview of some prominent cases related to Capital Punishment decided by Indian courts. The central goal of this article is to offer readers a comprehensive understanding of the Indian Judiciary's stance on awarding Capital Punishment.
• Capital Punishment or the Death Penalty has consistently been a subject of controversy not only within the Indian judicial system but also in many developed countries. The authority of the state is both challenged and reinforced through the execution of Capital Punishment. India took a clear stance on this matter in December 2007. However, despite this stance, the Judiciary reserves it for exceptional cases where there is a grave violation of the law. Over the past decade, the Indian Judiciary sentenced 1,303 individuals to death, yet only four have been executed in that time. Numerous human rights movements in India argue that capital punishment is immoral as it infringes on an individual's rights.
• Indian criminal jurisprudence is based on a combination of two theories. The first is the Reformative Theory, which views crime as a sort of ailment. This theory maintains that "You cannot cure by killing" and seeks to transform the personality and character of the offender to make them a productive member of society. The other theory, known as the Preventive Theory, asserts that "Prevention is better than cure." It advocates for taking measures to prevent crimes before they occur, including imposing the death penalty, imprisonment, or other punitive actions.
• The Indian Constitution grants the President and the Governor the power to pardon or commute death sentences. In India, the death penalty is reserved for the most serious and gruesome offenses, such as murder, murder during a robbery, and acts of terrorism against the government. The court imposes this punishment when it determines that a life sentence is insufficient, given the specific circumstances of the case.
• In summary, this article explores Capital Punishment in India, its constitutionality, and the various theories that underlie the Indian criminal justice system's approach to punishment. It also highlights the rarity of executions in India and the ongoing debate about the morality and effectiveness of the death penalty.

Background and origin of capital punishment

• Historical records reveal that even ancient, primitive societies employed methods of punishing wrongdoers, often resorting to taking the wrongdoer's life as retribution for their offenses. This extreme form of punishment, including execution, has been a fundamental concept for addressing wrongdoing since the earliest recorded history. The principle of 'an eye for an eye' has been a fundamental notion in dealing with crime throughout the history of human civilization.
• As human societies evolved and developed into organized communities, the death penalty became a common response to a variety of offenses, including rape and various military transgressions. Written laws were established to inform the people about the consequences they would face if they engaged in such crimes. One of the earliest written documents supporting the death penalty was the Code of Hammurabi, dated around 1760 BC. It comprised 282 laws compiled by the Babylonian King Hammurabi, including the concept of 'tit for tat.' Several other ancient texts also endorsed capital punishment, including the Christian Old Testament, the Jewish Torah, and the writings of Draco, an Athenian official who proposed the death penalty for a wide range of offenses in ancient Greece.
• Initially, methods of carrying out capital punishment were designed to be slow, painful, and torturous, such as burning or being crushed by an elephant. However, later societies realized that these methods were excessively cruel and inhumane. In the 18th and 19th centuries, legal authorities developed more efficient and less agonizing approaches to the death penalty, including hanging and the use of the guillotine.
• Over time, capital punishment has become increasingly contentious. Those who oppose this practice argue that it is inhumane and unjust. They believe that no one should be put to death, regardless of the severity of their crime. Advances in DNA testing have revealed the innocence of some individuals on death row, leading to the argument that no one should be executed to prevent the wrongful execution of an innocent person.

Types of Punishments

• Chapter III of the Indian Penal Code from 1860, which encompasses Sections 53 to 75, outlines the general provisions regarding punishments. The Indian Penal Code offers a graduated system of penalties to suit various categories of crimes based on their severity.
• Section 53 of the code lays out six categories of punishment that can be imposed on convicted individuals. These include:
  • The death penalty
  • Life imprisonment
  • Imprisonment with or without hard labor
  • Forfeiture of property
  • A fine
• Among these punishments, the death penalty, also known as capital punishment, stands as the most severe form of punishment in society. The term 'Capital Punishment' has its origins in the Latin word 'Capitalis,' meaning 'pertaining to the head.' It is applied when an individual commits the most heinous crimes against humanity and involves the legal process of ending a person's life as a consequence of their criminal actions, as determined by a court of law. The specific methods and practices related to capital punishment can vary by location, state, and country.
• Capital punishment is a legal process in which the state administers the death penalty as a punishment for particularly brutal crimes. The legal decree that someone should be subject to this punishment is referred to as a death sentence, and the act of carrying out this sentence is known as an execution. Globally, there has been a trend toward the abolition of capital punishment, but India has not adopted a definitive stance on this matter. What sets capital punishment apart from other forms of punishment is its irreversibility. Once an individual is executed, there is no way to bring them back to life, making it impossible to correct any errors that may have occurred during the legal process.
• In contemporary times, the death penalty is typically reserved for individuals who have committed capital crimes or offenses, such as murder, terrorism, and drug trafficking. Persons under the age of 18 are usually exempt from the death penalty, although some Arabic countries do not follow this exception and may impose the death penalty on those under 18. Lethal injection is a commonly used method for execution in most countries, while some societies still practice more violent forms of execution, such as shooting and the electric chair.
• Countries that continue to practice capital punishment include the USA, China, Iran, Iraq, Japan, Somalia, Saudi Arabia, Malaysia, Taiwan, Vietnam, Nigeria, Afghanistan, and others.

Capital punishment in India

• Capital punishment has a historical presence in India, and it finds its roots in ancient Indian history. According to Hindu teachings, capital punishment has been both permitted and prohibited. Hinduism advocates non-violence (Ahinsa), but it also asserts that it is the physical body that can be killed, not the eternal soul, which undergoes rebirth until Moksha is achieved.
• The religious, civil, and criminal laws of Hindus are outlined in texts such as the Dharmashastras and the Arthashastra. The Dharmashastra describes various crimes and their corresponding punishments, including murder and caste mixing. The Bhagavad Gita, a significant Hindu scripture, supports the righteous destruction of the wicked.
• In India, capital punishment is primarily reserved for the most heinous crimes. The President of India has the authority to grant clemency in death penalty cases. Once an individual has been sentenced to capital punishment by a Sessions Court, this sentence must be confirmed by the High Court. If the convict appeals to the Supreme Court and the appeal is unsuccessful, they can then petition the President of India for mercy. The Ministry of Home Affairs handles appeals made to the Supreme Court and requests for special leave to appeal to the Court by the convict.

Methods for providing capital punishment all over world

• Methods of carrying out capital punishment have evolved over time to reduce the physical suffering experienced by the offender. Ancient, brutal methods have been replaced by more humane approaches, including:
  • Hanging
  • Beheading
  • Stoning
  • Lethal Injection
  • Shooting by a firing squad
  • Shooting
  • Electrocution
  • Gas chamber
  • Falling from an unknown height
• Electrocution was first used as a method of capital punishment at Auburn State Prison in New York in 1890 and is still used in various countries, including England, Russia, and Japan. During World War II, a machine called the 'Guillotine' was used to execute Nazis in France. Shooting was employed as a method of execution in Russia and China. In the United States and Germany, the gas chamber was used, which caused the criminal to suffocate quickly without physical pain.
• Hanging is a prevalent method of execution in many countries, although it is illegal to hang a criminal in public places in India. Lethal injection, introduced in the United States in 1977, is now used in countries like Canada and England. This method ensures a quick and painless death for the offender.

Methods of execution in India

In India, two popular methods of execution are hanging and shooting:

Hanging

All executions in India are carried out by hanging the criminal till death. In 1949, the assassin of Mohandas Karamchand Gandhi i.e. Nathuram Godse was the first person to be hanged till death in Independent India. The Supreme Court of India suggested that the punishment of death sentence should be given in those cases which come into the ambit of ‘rarest of rare’ cases.
Since 2010, the death execution of two persons had been done. One is Afzal Guru, a terrorist who attacked the Indian Parliament in December 2001. His death execution was held in Tihar Jail, Delhi by hanging on February 9, 2013. The other is of Ajmal Kasab, who was the lone surviving terrorist of the Mumbai attack in 2008. His execution for death was done on November 21, 2012, in Yerwada Central Jail, Pune at 7:32 a.m.
All executions in India are conducted through hanging. The Supreme Court of India has suggested that the death penalty should be reserved for the "rarest of rare" cases. Notable executions include Nathuram Godse, the assassin of Mahatma Gandhi, in 1949, and more recently, Afzal Guru and Ajmal Kasab.

Shooting

The Army Act, 1950 and the Air Force Act, 1950 also provides the provisions and methods for awarding capital punishment. Section 34 of the Air Force Act, 1950 empowers the Court to impose the death penalty to the offences mentioned in Section 34 (a) to (o) of the Act.
Section 163 of the Air Force Act, 1950 provides that:
“In awarding a death sentence, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he is dead or shall suffer death by being shot to death.”
This provides discretionary power to the Court to provide for the execution of the death sentence either by execution or by shooting. As the Air Force Act, 1950, the Army’s Act, 1950 and the Navy Act, 1957 also provide for similar provisions.

Crimes associated with Death Penalty

The crimes which are deserving of death are:

• Aggravated Murder: Under Section 302 of the Indian Penal Code (IPC), a person who commits murder may be sentenced to death. The courts have clarified that capital punishment is constitutional only when it is applied in the "rarest of the rare" cases.
• Other Offenses Resulting in Death: The death penalty can be imposed in cases where a murder occurs during an armed robbery. Forcing or compelling someone to commit Sati is also a crime deserving of capital punishment.
• Terrorism-Related Offenses Not Resulting in Death: Using certain types of explosives to carry out an explosion that poses a threat to human life or property may result in the death penalty.
• Rape Not Resulting in Death: If an individual inflicts an injury during rape that leads to the victim's death or leaves them in a "persistent vegetative state," the perpetrator may face capital punishment under the Criminal Law Act of 2013. Gang rapes are also punishable by the death penalty.
• Kidnapping Not Resulting in Death: Under Section 364A of the IPC, kidnapping that does not result in death can lead to the death penalty if the kidnapper threatens to kill the victim and the victim dies as a result.
• Drug Trafficking Not Resulting in Death: Engaging in drug trafficking offenses or financing such activities can result in the death penalty.
• Treason: Acts of rebellion or assisting military personnel in committing mutiny against the government can lead to the death penalty.
• Military Offenses Not Resulting in Death: Members of the Army, Navy, or Air Force who engage in abetment of mutiny or related offenses may be subject to the death penalty.
• Other Offenses Not Resulting in Death: Conspiring to commit a capital offense, attempting to kill a life convict, or providing false evidence against an innocent person leading to their execution can all lead to the death penalty.

Category of offenders excluded from Capital Punishment

• Minors: Individuals under the age of 18 at the time of committing a crime are not eligible for the death penalty according to Indian law.
• Pregnant Women: Pregnant women sentenced to death are entitled to clemency as per a 2009 amendment.
• Intellectually Disabled: Individuals who, while committing heinous crimes, were mentally ill or unable to understand the nature of their actions may not be subject to the death penalty under the Indian Penal Code.