Lakshay
Analysis of Death Penalty: An Overview
Lakshay Parmar 19 Sep 2020

Analysis of Death Penalty: An Overview

Analysis of Death Penalty in India: An overview

Death Penalty or a Death Sentence refers to a punishment given to an offender by a court of law for committing a grievous offence. The key ingredient of Death Penalty is that it must be awarded in accordance with law by a competent court and it should not be confused with extra-judicial killings. The provision for Death Penalty is envisaged in Section-53 of the Indian Penal Code 1860. Indian laws award death penalty for various offences such as Criminal Conspiracy (Section-120B), waging or attempting to wage war against Government of India (Section-121), Dacoity with murder (Section-396) and murder (Section-302).

Many states around the world have abolished the death penalty by stating that it was unconstitutional. In India the penalty is still awarded on a ‘rarest of rare’ basis and is conducted by hanging the accused till death. There is no definition of ‘rarest of rare’ but the Supreme Court of India has said that it refers to the commission of a grievous offence that too in an extreme manner that shocks the society as a whole. In independent India, first death sentence was awarded to Nathuram Godse and Narayan Apte for assassinating Mahatma Gandhi and were hanged on 15th November, 1949.

Judicial Approach to Death Penalty in India

Talking about judicial decisions there has been a long running debate as to establish whether death penalty is unconstitutional or not. In Jagmohan Singh v State of Uttar Pradesh[1], the SC upheld the constitutional validity of death penalty and stated that it does not violate Articles-14, 19 and 21. The Apex court observed that the judge makes a choice between life imprisonment and death penalty and does so in accordance with the procedure laid down by law.

In the case of Bachan Singh v State of Punjab[2], the doctrine of ‘rarest of rare’ was born and in that regard the bench stated that it does not violate Article-19 or Article-21 of the Constitution. It was laid down that while deciding such cases, the court has to look into various factors such as the aggravating or mitigating factors, age of accused, criminal history, whether the particular act was done by coercion and mental condition of the accused. In this particular case, Justice Bhagwati who one of the judges in the bench dissented and held that death penalty is in violation of Articles-21 and 19. In that regard he stated, “Unfettered and uncharted discretion conferred on any authority, even if it be the judiciary, throws the door open for arbitrariness, for after all a judge does not cease to be a human being subject to human limitations when he puts on the judicial robe and the nature of the judicial process being what it is, it cannot be entirely free from judicial subjectivism.”

Before the case of Mithu v State of Punjab,[3] death sentence was mandatory under Section-303 IPC wherein it was awarded if a person serving life sentence commits a murder. In this case it was declared unconstitutional because the said provision was working on an assumption that any individual who is serving life sentence and still kills someone is beyond the stage of reformation which is one of the major purpose of awarding punishment. Further, Section-303 mandated death sentence to be awarded who inherently defeats the purpose of ‘rarest of rare’ doctrine.

In the case of Devender Pal Singh v State of NCT of Delhi[4], the execution of the accused who was a khalistani terrorist was being delay continuously which caused the accused to develop schizophrenia. It was developed due to the mental torture that was being imposed on the accused because of the continuous delay of execution. It boiled down to the stage wherein the prisoner begged to the jail authorities to carry out his execution. Acknowledging these facts, the SC commuted his death sentence as life imprisonment due to the long delay in the execution of death sentence.  

The 2008 Mumbai attack which shocked the entire nation was a night when almost all of India could not sleep and on the same night Ajmal Kasab was caught and placed under arrest. Kasab was sentenced to death by a trial court in Maharashtra and was upheld by Bombay High Court and the Supreme Court. Kasab’s mercy petition was also rejected by the President. Kasab was subsequently hanged on November 21st, 2012.

In a recent and a case which got a huge amount of national attention was the Nirbhaya Gang Rape case. Around April, 2013 four of the six convicts were sentenced to death by a trial court in New Delhi. This decision was upheld by the Delhi High Court on March 13, 2014 and was also further upheld by the Supreme Court three years later on May 5, 2017. After the confirmation of the Apex court, their execution was finally done on 20th March, 2020 on 5:30 A.M inside the Tihar Jail in Delhi. During the long gaps between the verdicts of the courts, their death sentences were continuously challenged by the convicts counsel. The final warrant was issued on March 5th, 2020 which stated execution would happen 15 days later i.e. March 20th.

Conclusion

Debates surrounding death penalty will continue as the arguments being made from both sides can be termed valid. On one side it defeats the purpose of punishment that is to reform an individual but on other side awarding death penalty implies that an individual is not fit to live in the society which to an extent is in terms with Article-21’s wordings. In the case of Santosh Kumar Bariyar v State of Maharashtra[5], previous death sentences rendered with regard to this case were rendered per incuriam because they were in violation of law laid down in Bachan Singh’s[6] case. The individuals were accused of kidnapping, killing and chopping the body of a man and then disposing the pieces in different places. The court held that the crime was done with the sole motive of collecting money and the accused were not professional criminals with a criminal record and hence there was hope for rehabilitation. Subsequently the sentence was commuted to life imprisonment.

As many states around the world have completely abolished death penalties, but in India its future remains uncertain whether it will be abolished or not. One argument against the death penalty that can be made is that it takes a lot of time and when it does take its time, it only worsens the situation of the accused as mentioned in the Santosh Kumar case[7]. Lawmakers and judiciary has to decide that factors such as public sentiments could be considered or not while awarding death penalty as they also play an important role as was seen in Nirbhaya’s case. It is also worth noting that a high number of death sentences are commuted into life imprisonments and as per a report by National Law University Delhi between 2000 and 2014 trial courts in India have sentenced 1810 people to death and more than half of that number was commuted to life imprisonment.



[1] A.I.R 1973, S.C 947

[2] 1980 2 SCC 684

[3] A.I.R 1983 SC 473

[4] (2002) 5 SCC 234

[5] JT 2009 (7) SC 248

[6] Supra

[7] Supra

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