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SHAIK LALBEE, 29 August, 2020

Capital punishment, also named death penalty, execution of a convicted inmate sentenced to death upon prosecution by a court of law. Capital punishment should be differentiated from extrajudicial killings that are carried out without adequate legal procedure.

The word death sentence is often used interchangeably with capital punishment, but execution is not necessarily accompanied by enforcement of the sentence (even though it is enforced on appeal), leading to the likelihood of moving to life imprisonment.The word “capital punishment” reflects the severest type of punishment. While the meaning and nature of these offences vary from country to nation, state to state, age to age, the death penalty has often been the result of capital punishment. Capital punishment implies a death penalty by popular use in jurisprudence, criminology and penology.

HISTORICAL PERSPECTIVE:

Human civilisation history reveals that capital punishment has not been discarded as a form of punishment during any period of time. Throughout the 7th century BCE, capital punishment for assassination, insurrection, robbery, and adultery was commonly used in ancient Greek legislation, though Plato maintained that it could be reserved exclusively for the incorrigible. This was often employed by the Romans for a wide variety of offences while civilians were removed during the empire for a brief period. Capitalpunishment is an anciently practiced punishment. Literally, there is no country without the practice of capital punishment.

CAPITAL PUNISHMENT UNDER INDIAN LEGAL SYSTEM:

“Capital Penalty” or “Death Penalty” is the highest standard of punishment given for upholding law and order in any community or democracy. But murdering another human being is no better than killing others in the name of justice. We will concentrate on doing away with the crime, not the criminal.This is awarded in India for the most serious of crimes. This is rewarded for misconduct and grievous offences. Article 21 states that no individual shall be deprived of the ‘right to life’ that is guaranteed to all Indian people. Article 72 of the Constitution of India authorizes the President to grant pardon, reprieves, parole or revocation of imprisonment or to revoke, remand or modify the sentence of any person convicted of an offence.Only the President is empowered to grant discretion in death penalty situations. If a prisoner is sentenced to death by the Sessions Court in a case, the High Court must confirm the conviction. If the convict’s appeal to the Supreme Court fails then he can lodge a ‘mercy petition’ with the Indian President.

DEATH PENALITY CRIMES:

The crimes such as

  • Murder, this is punishable by death as provided for in section 302 of the Indian Penal Code, 1860.[1]
  • Rape, A person who inflicts injuries in a death-causing sexual assault or is left in a “persistent vegetative state” can be punished with death under the 2013 Criminal Law Act.
  • Kidnap or abduction, Section 364A of the Indian Penal Code, 1860, specifies that abduction that does not result in murder is a crime punishable by execution.
  • Treason, Any person who declares or tries to wage war against the government and encourages officers, troops or members of the Navy, Army, or Air Force to commit a mutiny shall be given the death penalty.
  • Drug dealing, dacoity with murder, espionage and military offense, a person who commits murder during an armed robbery is also punishable to the death penalty. If the murderer is killed, the kidnapping of the murderer for the money is punishable with death penalty. The involvement with organized crime, whether it leads to murder, is punishable by execution. Committing or helping another person to execute Sati is often punishable by the death penalty.
LEGAL PROCEDURE:

The procedure of execution can be two types Hanging and Shooting.[2]Only after a death sentence has been issued by a session trial court must a decision be drawn up by a High Court to finalize it. When certified by the High Court, the convicted person has the right to appeal the Supreme Court. If this is not practicable, or if the Supreme Court dismisses the appeal or declines to hear the petition, the person convicted may send a ‘Petition for Mercy’ to the President of India and the Governor of the State. According to India’s constitutional system, mercy petitioning the President is the last constitutional resort a prisoner may take when convicted by the law court.

CLASS OF OFFENDERS EXCLUDED FROM CAPITAL PUNISHMENT:

According to Indian law, there is no execution of a minor who is under 18 at the time of committing a felony, pregnant ladies, intellectually handicapped persons are excluded from capital punishment.

IS CAPITAL PUNISHMENT CONSTITUTIONAL?

India’s constitution grants every person a basic right to life subject to deprivation by the process defined by the statute, it has been claimed by abolitionists that the death penalty in its present nature breaches the right of the individual to live. There are several moral luminaries that contend that under Indian criminal laws the death penalty being maintained being detrimental to one’s right to live.

In the case of Jagmohan Singh v State of U.P.[3]the very first time the constitutionality of Capital Punishment has been questioned. Here the plaintiff opposed the death penalty on the grounds of violations of Sections 19 and 21.The Supreme Court held that the selection of death sentences is made in accordance with the law-setting procedure. It is observed that on the basis of circumstances and facts, nature of crime recorded during trial, the judge makes the choice between capital sentence and imprisonment of life.

In Rajendra Prasad v. State of U.P.,[4]the judge ruled that capital punishment should not be permissible until it had been established that the convict was harmful to society. The educated judge pleads the removal of the death penalty and has said that it will not be maintained for “white collar offences.” It was also established that the death sentence for the murder crime given under section 302 of the I.P.C. did not infringe the fundamental provision of the constitution.

In Bachan Singh v. State of Punjab,[5]it was clarified that the constitutional bench of the Supreme Court, in keeping with a just, fair and equitable process laid down by statute, accepted Article 21 as the privilege of the State to deprive a citizen of his freedom. In fact, the fundamental structure of the Constitution has not been abused by the death sentence for the murder offence provided under Section 302 I.P.C.

The Supreme Court’s decision in Mithu vs. State of Punjab 1988 (3) SCC 607, notes that mandatory death sentence is unconstitutional.

The Supreme Court, in the case of Machhi Singh v State of Punjab1983 SCR (3) 413, ruled that “the death penalty has a deterrence impact and serves a social function” and claimed that the death penalty is legally legitimate.

It is obvious from a review of the above scenario that death penalty is deemed lawful in India, given the failure of many legislative efforts to abolish the death penalty in India, and is prevalent in India to this day, as is evident from the recent scenario of Ajmalameerkasab, which was executed in 2012.

CONCLUSION:

When the offender gets a death sentence it is more than just a retribution, in the name of justice and rule we destroy or kill a human. Killing an individual is unethical, and demonstrates a lack of regard for human existence. Yet seeking the death penalty doesn’t mean anyone loves the murderer. When a death sentence is enforced, it removes the possibility of progress that could have improved a person’s existence. Sometimes capital punishment is morally right, because it helps the government. It protects the public. The country’s people will cry out about their rights. Capital punishment is conducted in a civilized manner. This is the only penalty the offences done are comparable.


[1]Indian penal code 1860, section 302.

[2]“The Code of Criminal Procedure, 1973 Act No. 2 of 1974”

[3]1973 SCR (2) 541

[4]1979 SCR (3) 78

[5](1980) 2 SCC 684

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