After all, this country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.
– Dr. B.R. Ambedkar
At independence, India retained several laws put in place by the British colonial government, which included the Code of Criminal Procedure, 1898, and the Indian Penal Code, 1860. The IPC prescribed six punishments that could be imposed under the law, including death. The sections such as Section 121[1], Section 132[2], Section 194[3], Section195A[4], Section 302[5], Section 305[6], Section 307(2)[7], Section 364A[8], Section 376A[9], Section 376E[10] and Section 396[11] under IPC prescribes death sentence and other acts such as The Air Force Act, 1950, The Army Act, 1950, The Border Security Force Act, 1968, The Coast Guard Act, 1978, The Defence of India Act, 1971, The Explosive Substances Act, 1908, The Narcotics , Drugs and Psychotropic Substances Act, 1985 and The Unlawful Activities Prevention Act, 1967 etc. There is currently a Bill pending in Parliament, the Anti-Hijacking (Amendment) Bill 2014, which also prescribes the death penalty.[12]
The first challenge to the constitutionality of the death penalty in India came in the 1973 case of Jagmohan Singh v. State of U. P.[13] The petitioners argued that the death penalty violated Articles 14, 19 and 21 of the Constitution of India. It was argued that since the death sentence extinguishes, along with life, all the freedoms guaranteed under Article 19(1) (a) to (g), it was an unreasonable denial of these freedoms and not in the interests of the public.This case was decided before the CrPC was re-enacted in 1973, making the death penalty an exceptional sentence.
The challenge to the death penalty in Bachan Singh v. State of Punjab[14] was premised, among other things, on irreversibility, fallibility, and that the punishment is necessarily cruel, inhuman and degrading. It was also contended that the penological purpose of deterrence remained unproven, retribution was not an acceptable basis of punishment, and that it was reformation and rehabilitation which were the purposes of punishment. The Court adopted the ‘rarest of rare’ guideline for the imposition of the death penalty, saying that reasons to impose or not impose the death penalty must include the circumstances of the crime and the criminal. Justice Bhagwati in his dissenting opinion found the death penalty necessarily arbitrary, discriminatory and capricious. He reasoned that “the death penalty in its actual operation is discriminatory, for it strikes mostly against the poor and deprived sections of the community and the rich and the affluent usually escape, from its clutches. This circumstance also adds to the arbitrary and capricious nature of the death penalty and renders it unconstitutional as being violative of Articles 14 and 21.”
In 2015, two bills moved by Rajya Sabha Members of Parliament were proposed for abolition of death penalty. Kanimozhi has moved a Private Member’s Bill demanding the abolition of the death penalty, and D. Raja has moved a Private Member’s Bill asking the Government to declare a moratorium on death sentences pending the abolition of the death penalty.
In the case of Shatrughan Chauhan v Union of India[15] This case also laid down guidelines for “safeguarding the interest of the death row convicts”, which included reaffirming the unconstitutionality of solitary or single cell confinement prior to rejection of the mercy petition by the President, necessity of providing legal aid, and the need for a 14- day period between the rejection of the mercy petition and execution. The Ministry of Home Affairs, Government of India, has drafted the “Procedure Regarding Petitions for Mercy in Death Sentence Cases” to guide State Governments and the prison authorities in dealing with mercy petitions submitted by death sentence prisoners. These rules were summarized by the Supreme Court in Shatrughan Chauhan Case.
The Supreme Court has characterized the nature of mercy provisions under Article 72 as constitutional duty rather than privilege or a matter of grace. The writ courts in pursuance of judicial review powers, on a relative routine basis, find decisions of the executive to reject mercy petitions to be vitiated by procedural violations, arbitrariness and non-application of mind, the safeguard of mercy powers appears to not be working very well.
In the present times, the convicts of the national-sensational rape and murder of ‘Nirbhaya’ have been sentenced to death. There are many constitutional remedies to the convicts such Mercy petition, Curative petition and also when mercy petition being rejected it can be challenged before the Supreme Court.
The capital punishment enterprise as it operates in India, therefore perpetrates otherwise outlawed punitive practices that inflict pain, agony and torture which is often far beyond the maximum suffering permitted by Article 21. The debilitating effects of this complex phenomenon imposed on prisoners what can only be called a living death. Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. The notion of “an eye for an eye, tooth for a tooth” has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
Reference
[1] “Treason, for waging war against the Government of India”
[2] “Abetment of mutiny actually committed”
[3] “Perjury resulting in the conviction and death of an innocent person”
[4] “Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person”
[5] “Murder”
[6] “Abetment of a suicide by a minor, insane person or intoxicated person”
[7] “Attempted murder by a serving life convict”
[8] “Kidnapping for ransom”
[9] “Rape and injury which causes death or leaves the woman in a persistent vegetative state”
[10] “Certain repeat offenders in the context of rape”
[11] “Dacoity with murder”
[12]PRS India, Anti-Hijacking Bill, 2014, available at http://www.prsindia.org/billtrack/the-anti-hijacking-amendment-bill-2014-3500/
[13] (1973) 1 SCC 20.
[14]1982 3 SCC 24.
[15](2014) 3 SCC 1.
