“Seven years later, all four Nirbhaya gang rape convicts hanged to death.” These were the headlines of The New Indian Express Newspaper, dated 20th March 2020. In the past too there have been instances of murderers, terrorists like Ajmal Kasab and other convicts who have been hanged till death in India. This leads us to the much hotly-contested question, often found as a matter of debate in homes; educational institutions; conclaves and courts, which is– “Should the Death Penalty be abolished or retained under Indian law?”
In other words- Death Penalty in India- Yes or No? We have seen that this question often stems out at the time when a court is hearing a sensational case around the subject of death penalty and is followed by heated debates. So, the author now will use this opportunity in time to indicate his views on death penalty and leave it up to the readers to develop their own stand.
While most of the world listens to the call for abolition of death penalty and paves its way ahead, the author advocates for the retention and continued existence of death penalty under Indian law in limited cases as determined by the courts of law. The reasons for the same have been discussed herein below, this article.
Before, the author goes on to lists his reasons, let us touch upon the concept of meaning of death penalty and its history in brief.
How death penalty originated?
Death penalty, also known as capital punishment is the process of execution of an offender, sentenced to death by a court of law. By common usage in jurisprudence; criminology and penology, capital punishment refers to a sentence of death.
Its existence is known to the world since 18th century B.C during the rule of King Hammurabi in Babylon, which now is Iraq. Death penalty for murder, rape, treason and mutiny was often employed by King Draco, during his reign in 7th century B.C, Greece. Historical evidence shows that even the Romans, resorted to death penalty as a punishment in heinous offences.
Death Penalty in India
When it comes to India, death penalty under India law was inherited by our law-makers from the British. At the time of independence, the Indian Penal Code 1860, recognised death penalty as a valid punishment under law. The then in existence, Cr.P.C of 1898 mandated courts to give special reasons in their rulings, where they decided to give any other form of punishment. The above law as contained in Section 367(5) of the Cr.P.C 1898 was abolished vide an amendment in 1955 and no special reasons were to be recorded for any type of punishment.
The current procedural aspect related to death penalty as it exists today in India is given under Section 354(3) of the Cr.P.C 1973 where the judge has to compulsorily record and write special reasons, when he opts the punishment of death penalty to any offender. Ergo, the position of law in 1955 stands defunct. Section 235(2) of the Cr.P.C has also enabled the concept of post-conviction hearing on sentence bestowed out on accused.
Having understood the meaning of death penalty and its evolution, the time is ripe for the author to state his reasons for the continued and sustained existence of death penalty in India.
Why death penalty should be retained in India?
The FIRST REASON is that the Constitution of India, the supreme law of the land, incorporates the concept of death penalty. Article 21 states-, “No one shall be deprived of his life or liberty, except according to the procedure established by law.” The use of the word “life” in the language of Article 21 clearly goes on to show that our constitutional makers while recognizing the bounden duty of state to preserve and maintain the life of its citizens, also provided for the concept of life being taken away by the state in extreme-limited circumstances.
The golden thumb rule is that the same should always be in conformity to the existing procedure as contained/established by law. The State looks at the common good of the entire society. It is from this very commitment that the State derives the power to enforce capital punishment.
The Government of the State is under an explicit duty and obligation to protect the lives of its citizens, and to ensure justice for its citizens, if any of their rights are violated. Thus by inflicting capital punishment, the State is only carrying forward and honouring its obligation and the promise it made to its citizens.
This same tenet has been recognized by the Apex Court of India in the case of Jagmohan Singh vs State of Uttar Pardesh and in the recent Nirbhaya case also. Furthermore a bare reading of Article 72 of the constitution, which contains the words – “sentence of death” buttresses the constitutionality of death penalty.
The SECOND REASON, is a logical explanation to the first, where the author will now analyze the current procedural framework, safeguards and the rules laid down by law in cases of death penalty.
Firstly, there are only 11 offences under IPC including murder and kidnapping for ransom for which death penalty can be bestowed. Special legislations dealing with heinous offences like drugs (Narcotics & Psychotropic Substances Act), terrorism (Unlawful Activities Prevention Act), military offences (Army, Navy Act, etc) and other grave offences, provide for the punishment of death penalty.
When it comes to the special legislations, the procedure laid down in these acts is very stringent and most of us will agree that the nature of these offences require the need for death penalty. Now when it comes to the crimes under the IPC, that is where most of the debate takes place.
The CrP.C as is in existence provides for numerous procedural parameters to be followed in cases of death penalty. Whether it being the,
- special reasons mentioned by the judge as per Section 354(3),
- opportunity to hear the accused on determining the quantum of punishment (Section 235),
- High Court to consider the matter of death penalty once submitted to it by the Sessions Court for confirmation (Section 366 CrP.C),
- power of the High Court to admit additional evidence and further make inquiry (Section 367),
- confirmation of sentence by at least two or more judges (Section 369),
- detailed procedure of execution and black warrants (Section 413 and 414) and
- postponement of sentence in appeal cases (Section 415), the Cr.P.C has adequate jurisprudence related to capital punishment.
- Such humane is the law that Section 416 Cr.P.C provides that a pregnant woman shall not be executed till delivery and the court in such cases may also consider the alternative of bestowing life imprisonment on the offender.
In addition to all of this, we have the various safeguards available to the convicts be it in the form of review petitions, mercy pleas, curative petition and the requirement of issuing a new black warrant when the convict has exhausted a legal remedy available to him.
The THIRD REASON is an extension of the above reason detailing out the vast procedural framework available under Indian law when dealing with the cases of death penalty. Courts in India time and again have come up with jurisprudential principles, which take into consideration both sides of the coin- societal interest and the individual liberty of the convict.
In the case of Bachan Singh vs State of Punjab,we had the Apex Court laying the grundnorm for the judicial system in India when adjudicating on death sentence matters, that is to draw a balance sheet of aggravating (relating to the commission of crime) and mitigating circumstances (relating to the convict- probability of reformation, poverty, conduct of and remorse by convict, etc )and only in case the former clearly outweigh the latter, then death penalty will be carried out.
Even in a mercy petition you can claim these grounds and provide additional evidence. This shows state has deep regard for human life and only when these basic parameters, that is, mitigating factors containing the above-listed humane considerations fail or are easily overpowered by aggravating factors that death penalty, as a last resort is taken recourse to by our courts in the “rarest of rare cases.”
Advocates supporting the extinguishment of capital sentence from the statute, often edifice their argument based on the wide discretionary power which is vested on a judge when deciding whether a case falls under the rarest of rarest category. My counter to them is simple.
Law is based on objective analysis and in objectivity lies subjectivity, where the wisdom of the judge is taken into consideration. The beauty of law is in the fact that the law itself gives judges, who are experienced legal professionals and having vast knowledge of law, to come to a decision based on the facts and circumstances of a case.
This discretion, though wide, is not unchecked and arbitrary. It is based on judicial wisdom, principles of law and principles of fairness and equity. Moreover, had this discretion be absent, it would have been impossible for the legislation to categorize based on its prediction, the facts and specific circumstances of the cases in which to render death penalty or not.
The FOURTH REASON stems out of the principle- “: Proper and appropriate sentence to the accused is the bounded obligation and duty of the court.”
The same was declared by India’s top most court in the case of Gurmukh Singh vs State of Haryana. The endeavour of the court must be to ensure that the accused receives appropriate sentence; in other words, sentence should be according to the gravity of the offence- thus where death sentence is to be given by court it should be, then only the court is doing its bounden duty to render and promote justice.
In the case of State of MP vs Saleem , the Apex Court held that “Court is failing in its basic duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong.
The punishment to be awarded for a crime must not be irrelevant but should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and should respond to the society’s cry for justice against the criminal.”
The Supreme Court was pleased to give finding in the matter of State of MP vs Basodi, wherein it said, “proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times.
Even now for a single grave infraction, drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.”
Despite international consensus being inclined towards the abolition of capital punishment, the author’s plain interpretation of words mentioned in Article 5 of the UDHR, is in itself a manifestation of the global law recognizing death penalty. The words “if it is as per law” clearly provide death penalty in cases to be imposed where the facts of the case require to do so coupled with application of the law. This particular stance in UDHR is backed by Article 6 of the ICCPR, where if proper safeguards are taken into account, then death penalty can be imposed in a non-arbitrary manner. This argument constitutes reason number five
Let us now discuss some other counterpoints against death penalty. Human rights activists term the existence of death penalty as ghoulish to the idea of a civilised society. The author however calls out the futility in their argument. How can death penalty be the sole basis for judging the civilization of a society?
Civilization implies adherence to the rule of law and meting out justice to the victims. If death penalty is as per law and serves the needs of people, while answering the call for justice, it surely is a hallmark of a rationale-well cultured society.
Some say death penalty is not an effective deterrent. Their saying is backed by various studies conducted by organizations such as Amnesty International and Human Rights Watch. A question which often props up in my mind that even life imprisonment is not an effective deterrent, murders; rapes; etc; their numbers are yet high. We have to acknowledge that our entire system of justice has loopholes in almost all its facets.
Even the CJI NV Ramana acknowledged that our justice system with its colonial legacies, has various loopholes and needs to be “Indianised” to meet the needs of the society. Even the studies which have been conducted are not conclusive, sometimes there is no execution of sentence only. How do you judge a man when he is dead? Ergo, what we should focus is at the overall mechanism ranging from case institution and investigation to justice delivery within a time frame, rather than single out death penalty.
The author here also puts forward his point that if the sentence of death is executed within a limited rather than an extended period of time, then death penalty as a tool would have deterrence value. Time is a major factor, which needs to be pondered by the law makers.
Next, when advocates say that it is society which produces criminals and its society which is at fault, the author certainly feels that society can then also legally extinguish the life of a dreadful convict, when law permits for societal welfare.
Also, when activists refer to statistics and point out the arbitrariness in death penalty vis-à-vis the staggering number of people from the weaker sections of society being implicated for death penalty, we have to also be cognizant that around majority of criminals with respect to crimes such as theft, murder, etc, are also from the weaker section. Moreover, one cannot neglect that in our country, with the spade of money and power, the rich often evade justice. Ergo, to again cast aspersions on death penalty alone will not be justified.
When we speak about retribution as one of the goals of penology, we have to understand that retribution does not always imply an eye for eye or tooth for tooth. In today’s jurisprudence it implies the notion of real justice as a part of the punishment framework and as per law, it doesn’t stand for vengeance. Therefore, given the overall stern framework surrounding death penalty and its limited application, one cannot certainly equate it as being equivalent to vengeance.
Coupled with all the above points is a fact of seminal importance that in legion instances, time and again, the Hon’ble Supreme Court despite strong confrontation to the concept of death penalty, the court has upheld its constitutional validity. The Parliament has also not tinkered with the legislation on capital punishment, except the fact that it has made it hard for courts to impose the punishments, given the strict contours of law.
In conclusion, the author won’t hesitate from calling himself a human rights activist, just because he is averse to the idea of death penalty being completely exterminated from the Indian legal system. This thinking stems out from the notion that at hand is the limited application backed by judicial wisdom of the death penalty law as opposed to random/lottery application. This status quo, forms the rule of law and rule of law is what forms the bedrock of the human rights system. Rest, I leave it up to the audience to decide, the ball is in their court…. people’s court now.
 108 countries have abolished death penalty in law for all crimes as of 2020- Death Penalty in 2020: Facts and Figures, available at- https://www.amnesty.org/en/latest/news/2021/04/death-penalty-in-2020-facts-and-figures/, (last visited on 24/06/2021 at 5:06 pm).
 Capital Punishment in India, Subhash C Gupta, Deep and Deep Publications, 2000, p1.
 AIR 1973 SC 947.
(2017) 6 SCC 1.
 AIR 1980 SC 898.
 (2009)15 SC 635.
 AIR 2005 SC 3996
 7 SCR 1166.
This article is written by Siddharth Arora, he is a lawyer enrolled at Punjab & Haryana Bar Council.
The views expressed in this article are solely that of the writer and do not necessarily represent the views of theLawmatics.