Constitutionality Of Capital Punishment In India
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
CONSTITUTIONALITY OF CAPITAL PUNISHMENT IN
INDIA Pragya Bhatnagar, Dr. Shakuntala Misra National Rehabilitation University Introduction Capital punishment, or the death penalty, refers to the practice where the state legally executes an individual as punishment for committing a serious crime. The punishment is often referred to as death sentence, and the act of carrying it out is called execution. A person awaiting execution is known as being on death row. Crimes punishable by death, often called capital crimes, include severe offences like murder, terrorism, treason, child sexual abuse, war crimes, espionage, genocide and major instances of kidnapping, rape, or drug trafficking. The use of the death penalty is a subject of ongoing debate and controversy worldwide.
In Europe, capital punishment is banned under Article 2 of the Charter of Fundamental Rights of European Union1, and the Council of Europe aims to completely abolish it among its 47 member states through Protocol 13, Article 1 of the European Convention on Human Rights2, although some countries like Armenia, Russia, and Azerbaijan have not signed this protocol. On the global scale, the United Nations has passed several resolutions calling for a moratorium on executions, encouraging countries to eventually abolish the death penalty. Despite many nations abolishing it, over 60% of the global population still resides in countries where the death penalty remains legal, including nations such as China, India, the United States, Pakistan, Iran, Saudi Arabia, and several others, particularly in the Middle East and Asia.
China is believed to carry out more executions than any other country combined. Capital punishment, also known as the death penalty, remains one of the most debated topics in India. It has a long history, deeply intertwined with the country’s legal system and moral philosophy. The question of whether it aligns with the Constitution of India has sparked numerous discussions among legal scholars, policymakers, and human rights advocates. To 1https://www. citizensinformation. ie/en/government-in-ireland/european-government/eu-law/charter-offundamental-rights/ 2 https://worldcoalition.
org/document/protocol-no-13-to-the-convention-for-the-protection-of-human-rights-andfundamental-freedoms-concerning-the-abolition-of-the-death-penalty-in-all-circumstances/ assess the constitutionality of capital punishment in India, it is essential to examine the provisions of the Constitution, judicial interpretations, and the broader moral and social implications. Capital Punishment in India Capital punishment is legally allowed in India, with nine executions carried out since 1995, and a total of 30 executions taking place since 1991, the most recent being in 2020. In the case of Mithu v. State of Punjab3, the Supreme Court ruled to strike down section 303 of the Indian Penal Code, which mandated the death penalty for those who committed murder while serving a life sentence. India has consistently opposed global efforts to abolish the death penalty.
In December 2007, the country voted against UN General Assembly resolution calling for a moratorium on executions. Similarly, in November 2012, India voted against a draft resolution that sought to eliminate capital punishment worldwide. On August 31, 2015, the Law Commission of India submitted a report recommending the abolition of death penalty for all crimes, except for offences like waging war against the country or terrorism. The Commission argued that the death penalty should be abolished, citing its use in 140 countries, its arbitrary and inconsistent application, and the lack of evidence proving that it serves as an effective deterrent to crime. History Historically, capital punishment was part of the Indian Penal code, 1860, which outlined various crimes punishable by death. This law continued after India gained independence in
1947. The first execution in independent India took place on November 15, 1949, when
Nathuram Godse and Narayan Apte were hanged for the assassination of Mahatma Gandhi. According to Article 214 of the Indian Constitution, no one can be deprived of their life except through a legal process established by law.
3 Mithu vs. State of Punjab, (1983)2 SSC 277
4 Article 21 of the Constitution of India
Bachchan Singh v. State of Punjab (1980)5: in this landmark case, the Supreme Court of India clarified that the death penalty should only be imposed in the “rarest of rare” cases. This principle, established in earlier cases like Jagmohan Singh V. State of Uttar Pradesh (1973)6 and Rajendra Prasad v. State of Uttar Pradesh (1979)7, became a key guideline for capital punishment in India. The court stated that death sentences should be reserved for the most extreme situations. For example, it categorized “honour killings” as falling within the “rarest of rare” category, thus deserving capital punishment. The court also recommended the death penalty for police officers involved in extrajudicial killings, such as “encounter killings”. Constitutional provisions and the death penalty The Constitution of India does not explicitly prohibit capital punishment.
In fact, the provision that permit it is found in Article 21, which guarantees the right to life and personal liberty. Article 21 states: “no person shall be deprived of his life and personal liberty except according to the procedure established by law”. At first glance, it may seem like a clear mandate for the abolition of the death penalty. However, the Supreme Court of India has held that the death penalty is not inherently unconstitutional if it is imposed in accordance with “the procedure established by law”. In Jagmohan Singh v. State of Uttar Pradesh (1973), the court ruled that the death penalty could be constitutionally valid under certain circumstances, provided that the law surrounding its application is followed properly. The judgment held that capital punishment does not violate the right to life unless it is handed down arbitrarily or without sufficient grounds.
The role of Supreme Court The Supreme court has played a pivotal role in shaping the framework within which capital punishment can be applied. Over the years, the court has carved out certain limitations and safeguards to prevent the arbitrary imposition of death penalty. The “rarest of rare” doctrine: in Bachan Singh v. State of Punjab (1980), the Supreme Court upheld the constitutionality of capital punishment but emphasized that it should only be applied
5 Bachan Singh vs. State of Punjab, A.I.R. 1980, S.C 898
6 Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947
7 Rajendra Prasad vs. State of Punjab, A.I.R. 1979, S.C.p.916
in the “rarest of rare” cases. This doctrine seeks to ensure that the death penalty is imposed only in the most heinous cases where life imprisonment would be deemed inadequate. Guidelines of sentencing The court further provided guidelines for judges to consider when deciding whether to impose the death penalty. Factors like the nature of the crime, the manner in which it was committed the character of the accused, and the possibility of rehabilitation are to be taken into account. This framework is designed to ensure that the decision to impose capital punishment is not arbitrary or discriminatory. Post-conviction review The Supreme Court has also established mechanisms for reviewing death penalty cases, ensuring that all avenues for appeal and reconsideration are exhausted before a sentenced is carried out.
This includes the provisions for clemency appeals to the President of India under Article 72 and to the Governors of States under article 161. Legal and moral challenges Despite these judicial safeguards, capital punishment has faced considerable moral and ethical opposition. Critics argue that the death penalty violates the right to life guaranteed by the Constitution. They contend that the punishment is inherently inhumane and irreversible, often leading to the wrongful execution of innocent individuals. Additionally, there are concerns about the disproportionate application of the death penalty, especially among marginalized communities. From a legal standpoint, opponents of capital punishment argue that its application is not consistent with the principle of equality under Article 14 of the Constitution.
Many believe that the death penalty disproportionately impacts the poor, the uneducated, and members of historically disadvantaged communities, who may lack access to quality legal representation. International perspectives and India’s obligations International human rights organisations, including the United Nations, have called fir the abolition of the death penalty, highlighting its incompatibility wit human dignity. India, as a signatory to various international treaties such as the International Covenant on Civil and Political Rights (ICCPR), faces pressure to reconsider its stance on capital punishment. While India has not ratified the Second Optional Protocol to the ICCPR, which calls for the abolition of the death penalty, its growing trend of converting death sentences into life imprisonment in certain cases indicates a shift towards reducing its application.
Other legislations In addition to the Indian Penal Code, several other Indian laws include provisions for the death penalty. The Commission of Sati (Prevention) Act, 1987, for example, stipulates that anyone who commits or abets the act of sati can be sentenced to death. The Scheduled Tribes (Prevention of Atrocities) Act, 1989, imposes the death penalty for bearing false witness in capital cases against a member of a scheduled cates or tribe, leading to their wrongful conviction and execution. The Narcotics Drugs and Psychotropic Substances Act, 1985, mandates the death penalty for those convicted of large-scale drug trafficking offences on a second occasion.
In response to increasing public outrage over violent crimes, in 2013, the Indian government introduced a law mandating the death penalty for rapists who cause the death of the victim or leave them in a persistent vegetative state. Repeat offenders may also be sentenced to death under the Criminal Law (Amendment) Act, 2013. The Supreme Court has also ruled that delays in the execution of death row sentences, such as delays in considering mercy petitions, can serve as grounds for commutation to life imprisonment, as seen in cases involving Rajiv Gandhi’s assassins and Devinder Pal Singh Bhullar. The concept of a curative petition, established by the Supreme Court in 2002 Rupa Ashok Hurra case8, allows individuals to seek reconsideration of final judgments if there has been a miscarriage of justice, even after a review petition is denied.
The president’s clemency power under Article 72 and 1619 of the Indian Constitution allows for pardons, reprieves, commutations, including for death sentences. The Supreme Court has emphasized the need for timely exercise of clemency to offer hope for condemned prisoners.
8 Rupa Ashok Hurra vs. Ashok Hurra and Anr (2002) 2 S.C.R.1006
9 Article 71 and 161 of the Constitution of India
Execution of death sentences The execution of death sentences in India is primarily carried out by hanging, as per the Code of Criminal Procedure (1973), though the armed forces may also execute death sentences by shooting under the relevant military laws. The debate over the death penalty is multifaceted. Advocates for its abolition argue that it is barbaric, ineffective as a deterrent, and often results in wrongful convictions. They also contend that it is inhumane and that society should not sanction state- sponsored killing. Conversely, proponents argue that it serves as a deterrent to crime, prevents repeat offenders, and can help manage prison populations. The “rarest of rare” doctrine, established in the 1980 Bachchan Singh case, limits the application of the death penalty to exceptional cases.
This principle was further clarified in subsequent rulings, emphasizing that life imprisonment should be the default punishment, with death reserved for the most heinous crimes. Rarest of rare The concept of “rarest of rare” was introduced to help determine when the death penalty should be applied. In the Machchi Singh case10, the court outlined several factors to guide this determination. These include the brutal or heinous manner of committing the crime, the depraved motives behind the act, the social context of the crime (e. g. , crimes targeting vulnerable groups), the scale of crime, such as multiple murderers, and the nature of the victim, for example, children, elder people, or public figures.
This doctrine was later reinforced by the Supreme Court of India, which emphasized that the death penalty should only be used in exceptional circumstances where life imprisonments is insufficient. Positive aspects of capital punishment Deterrence of crime- proponents argue that the death penalty serves as a strong deterrent against serious crimes, particularly murder. The belief is that the fear of facing death may discourage potential criminals from committing heinous crimes. Retribution and justice- capital punishment is a necessary form of retribution for particularly horrific crimes. It ensures that the punishment fits the severity of crime, providing a sense of
10 Machhi Singh vs. State of Punjab, A.I.R. 1983, S.C 957
justice for the victims and their families. Incapacitation of dangerous criminals- the death penalty ensures that dangerous criminals who have committed heinous acts can never harm society again. This is especially relevant in cases where there is a significant risk of reoffending, even in prison. Acts of terrorism and mass murders- extreme cases like terrorism, genocide or mass murder, the death penalty is an appropriate response to prevent further loss of life and to deter others from committing similar atrocities. Public opinion- there is string public support for Capital punishment, with many people believing it is an essential part of maintaining law and order. Proponents argue that democracy should reflect the will of the people, which in certain areas favours death penalty.
Reasons for abolition of capital punishment Irreversibility and the risk of wrongful conviction- once an execution is carried out, it is irreversible. If a person is wrongly convicted, there is no opportunity to correct the mistake after the death penalty is imposed. Human rights and dignity- death penalty is a violation of right to life, which is fundamental human right. The United nations and the various international bodies have called for the abolition of the death penalty, emphasizing that it is cruel and inhumane. No deterrent effect- studies have consistently shown that the death penalty does not deter crime more effectively than other forms of punishment, such as life imprisonment. the correlation between capital punishment and reduced crime rate is inconclusive.
Costs and resources- the death penalty is often more expensive than life imprisonment due to lengthy trials, appeals, and the need for a higher level of legal representations. Moral and ethical concerns- many believe that the state should not have the power to take a life, regardless of the crime committed. This position is often rooted in religious or philosophical beliefs about the sanctity of life. International trends- the global trend is moving away from the death penalty. Over 170 countries have abolished or ceased using capital punishment, and the international pressure continues to build for its eradication worldwide. Conclusion Constitutionality of capital punishment in India remains a complex issue. While the death penalty has not been unconstitutional, its application is surrounded by a set of stringent guidelines to ensure fairness and justice.
The Supreme Court’s “rarest of Rare” doctrine and other safeguards have made the death penalty a highly regulated punishment, reserved for exceptional cases. Nevertheless, the moral and human rights concerns surrounding the death penalty continue to fuel debates about its abolition. given the evolving nature of law and social values, there is a growing call for re-examining its role in India’s justice system, with the ultimate question being whether it truly serves the principles of justice, equity, and human dignity enshrined in the Constitution. The constitutionality of capital punishment in India is firmly rooted in the Indian Constitution, specially under Article 21. However, its application is carefully regulated by judicial guidelines, ensuring it is only imposed in exceptional circumstances.
the debate surrounding its moral, ethical, and legal implications continues, reflecting the broader tension between justice, deterrence, and human rights. While the death penalty is constitutional, its future may depend on evolving societal views, judicial perspectives, and international pressure toward abolition. While the “rarest of rare” doctrine aims to limit the application of capital punishment, its vague definition often leads to inconsistencies in how its applied. This inconsistency creates confusion, as similar crimes may lead to different sentences. Critics argue that completely abolishing the death penalty would be risky for the country like India, which may not be ready for such a drastic shift. The doctrine, although intended to be society-focused, has become more judge-centric, with courts needing clearer guidelines to determine when the death penalty is appropriate.
Additionally, the judiciary must balance aggravating and mitigating circumstances before deciding on capital punishment.