Context

After a prolonged court case in Ahmedabad Serial Blast Case 2008, a special court pronounced the punishments for the convicted, with 38 given death penalty.
This is the highest number ever given death sentence in any ruling in India.
On July 26, 2008, a series of 21 bomb blasts hit Ahmedabad within a span of 70 minutes, killing 56 people and injuring over 200.

Hence the debate surrounding capital punishments has once again started. With the increasing strength of the human rights movement in India, the existence of capital punishment is questioned as immoral.

What is Capital Punishment?

Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
It should be distinguished from extrajudicial executions carried out without due process of law.
The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.

When is it awarded?

The term “Capital Punishment” stands for most severe form of punishment.
It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.
While the definition and extent of such crimes vary, the implication of capital punishment has always been the death sentence.

Historical Background

Capital punishment is an ancient sanction. There is practically no country in the world where the death penalty has never existed.
History of human civilization reveals that during no period of time capital punishment has been discarded as a mode of punishment.
Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece under the laws of Draco, though Plato argued that it should be used only for the incorrigible.
The most terrible form of public beheading still persists in Saudi Arabia and other Gulf Countries (and surprisingly, it is one of the most cherished public event).
Pakistan has death penalty even for the juveniles.

Capital Punishment in India

Article 21 ensures the Fundamental Right to life and liberty for all persons.
It adds no person shall be deprived of his life or personal liberty except according to procedure established by law.
Capital punishment is an integral part of the Indian criminal justice system.
The Indian Penal Code (IPC) provides that only in following offences, capital punishment could be awarded:

Murder (s.302),
Abetment of suicide by a minor, insane person or intoxicated person (s.305),
Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person (s.195A),
Perjury resulting in the conviction and death of an innocent person (s.194),
Treason, for waging war against the Government of India (s.121),
Abetment of mutiny actually committed (s.132),
Attempted murder by a serving life convict (s.307(2)),
Kidnapping for ransom (s.364A),
Dacoity [armed robbery or banditry] with murder (s.396),
Criminal conspiracy (s. 120 B),
Death penalty is also provided under the following special and local laws:

Unlawful Activities Prevention Act, 1967 (as amended in 2004)
Defence and Internal Security of India Act, 1971
Defence of India Act, 1971
Commission of Sati (Prevention) Act, 1987
Narcotic Drugs and Psychotropic Substances (Prevention) Act, 1985, as amended in, 1988
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
Prevention of Terrorism Act 2002, (POTA)
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
Explosive Substances Act, 1908 (amended in 2001)
Arms Act, 1959 (amended in 1988)
Laws relating to the Armed Forces, for example the Air Force Act 1950, the Army Act 1950 and the Navy Act 1950 and the Indo-Tibetan Border Police Force Act 1992
Various states (Andhra Pradesh, Karnataka, Arunachal Pradesh and Maharashtra) have control of Organised Crime Acts which entail the death penalty.

Special factors on the death penalty jurisprudence in India

(a) Increase in Sexual Offences

The report on death penalty published by NLU Delhi shows that the rate of awarding capital punishment to the offences of rape with murder is much higher than other offences.
There is no doubt that rape is one of the most heinous crimes.

(b) Sedition and waging War against India

India has seen many cases of treason, terrorism and seditious activities.
It is in fact the most vulnerable state for such crimes.

Judicial observations related to Death Penalty

The Supreme Court has always said that the death sentence should be given rarely.

Judgments against:

(a) Mithu vs State of Punjab (1983):

The Supreme Court ruled that the mandatory death penalty is unconstitutional.
It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case.
The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murders.

(b) State of Punjab vs Dalbir Singh (2012):

Similarly, the Supreme Court ruled that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional.

(c) Channulal Verma vs State of Chhattisgarh (2018):

In Channulal, the Supreme Court, through Justice Kurian Joseph noted that the time was appropriate to review the constitutionality of the death penalty and take into consideration reformative aspects of punishment

Judgments in favour:

In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

What is a “Rarest of Rare” Case?

The principles of what would constitute the “rarest of rare” were laid down by the top court in the landmark judgment in ‘Bachan Singh’.
Two prime questions, the top court held, may be asked and answered:

First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?
Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?

Avenues available to a Death-Row Convict

Confirmation by HC: After a trial court awards the death penalty, the sentence must be confirmed by a High Court. The sentence cannot be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired.
Review Petition: If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition.
Curative Petition: If the review petition is rejected, the convict can file a curative petition for reconsideration of the judgment.
Mercy Petition: Under Article 72 of the Indian Constitution, the President shall have the power to grant pardons, reprieves, respites, or remissions of punishments or to suspend, remit or commute the sentence of any convicted person.

Debate over Death Penalty

Arguments in favor:

Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.

Arguments against:

Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.

Other issues with such executions

(a) Socio-Economic Factors

The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

(b) Delayed Execution

The law provides for a long process before the execution of the convicts actually takes place.
The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

Way forward: Law Commission recommendations on death penalty

The Law Commission of India in its 262^nd Report (August 2015) recommended that:

Death penalty be abolished for all crimes other than terrorism related offences and waging war.
Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible

Conclusion

The society is in uproar today as crime is constantly on the rise.
Law enforcement structures are struggling to meet the expectations of the civil society.
In a rapidly antipathic society, our legal structures need to send a strong message to enforce the idea that punishment will be “consequential” and commensurate to the crime.