A CRITICAL STUDY ON CAPITAL PUNISHMENT IN INDIA

BY ANMOL SHARMA

ABSTRACT
Capital Punishment or “Death Penalty” is the highest stage of punishment offered in any
society or democracy to keep law and order. But killing some other individual in the name of
justice isn't any higher than murdering someone. We ought to awareness of casting off the
crime now not the crook. China is the simplest united states within the global in which the
exercise of the death penalty remains at its peak with over one thousand executions each year,
whereas in India the doctrine of “Rarest of the Rare” is observed and frequently the death
sentence gets commuted to existence imprisonment. But nonetheless, India has done a total of
4 criminals from the length of 2002 to 2015. Both the countries have numerous similarities
inside the method and regulation of capital punishment, however in China, once the demise
penalty is awarded it cannot be revoked.

India is a properly developing country at the same time masses of crime quotes had been
growing nowadays. There is plenty of regulations in India to stop and manipulate crimes,
even though the crime costs are growing because the punishments aren't enough for the
crimes. The punishment must be severe to reduce the crime price. All punishments are based
totally on the equal motive to offer a penalty for the wrongdoer.. There are one of a kind
types of punishment in India together with capital punishment, existence imprisonment,
imprisonment, and many others., Capital punishment is referred to as the most severe shape
of punishment. This paper says about the reputation of capital punishment everywhere in the
global and additionally defines the concept of a capital offense. It additionally explains
approximately the modes of capital punishment in India. This article explains the two most
important theories associated with capital punishment, particularly reformative principle, and
preventive theory. In this studies, the researcher also explained about rarest of rare cases.
This article mentioned abolitionist and retentionist nations, additionally capital punishment in
historic India. This article has an in-depth view about capital punishment in India and
additionally the methods of execution in India.

KEYWORDS
Capital punishment, death penalty, legislation, capital offence, crimes.

INTRODUCTION
India is rustic which include a huge variety of crimes and criminals. In India, all punishments
are primarily based on the motive to present a penalty for the perpetrator. There are two most
important motives for implementing the punishment, one is the culprit need to suffer and
another one is enforcing punishment on wrongdoers discourages others from doing
incorrectly. There are distinctive types of punishment in India based totally on their offence
which include capital punishment, imprisonment, existence imprisonment, imprisonment
with first-class, quality, etc. In this research, the researcher targeted capital punishment or the
demise penalty. Capital Punishment is one of the critical a part of the Indian criminal justice
gadget. Crimes that bring about the loss of life penalty are called capital crimes or capital
offences. The period capital punishment is derived from the Latin phrase “capitalis” way
“regarding the top”. The period dying penalty is likewise referred to as capital punishment.
Capital Punishment is a system in using someone is positioned to death by a country for his
or her criminal offence. Capital punishment or the death penalty way the culprit is sentenced
to demise by way of the courtroom of regulation for a criminal offence. Capital punishment
has been awarded for the most grievous crimes towards humanity.Death penalty differs from
region to location, state to nation and country to us of a. There are many human rights actions
in India that say capital punishment is immoral. Human rights corporations are argued that
capital punishment affects one character's proper. In jurisprudence, criminology and penalty,
capital punishment approaches a sentence of loss of life. Indian criminal jurisprudence is
primarily based on the aggregate of two theories. The constitution additionally gave powers
to the president and governor to droop or pardon the demise sentence. In India capital
punishment is provided for the maximum critical and grievous offences. Capital punishment
is given for murder, theft with murder, waging war against the government and abetting
mutiny, and many others.,. The loss of life sentence is given handiest whilst the court comes
to an give up that lifestyles imprisonment is insufficient, primarily based on the situation of
the case. The main purpose of this examination:
• To take a look at capital punishment in India.
• To look at the criminological approach of capital punishment.

CAPITAL PUNISHMENT IN INDIA

Capital Punishment is a legal demise penalty in India. India offers capital punishment for a
critical offences. In India capital punishment is presented for most heinous and grievous
offence. In India Article 21 of the Indian constitution is“ safety of life and personal liberty”.
This article says “ No character will be disadvantaged of his lifestyles or non-public liberty
except as in line with process set up through law”. This article says proper to life is promised
to every residents in India. In India IPC presents death sentence as a punishment for diverse
offences along with criminal conspiracy, homicide, waging war against the authorities,
abetment of mutiny , dacoity with homicide, and anti -terrorism. The Indian Constitution has
provision for mercy of capital punishment via the President. There are twenty two capital
Punishment is taken place in India in view that 1995. After the independence a there are fifty
two capital punishment is taken in India. In “Mithu vs country of Punjab” the Supreme Court
struck down the IPC Section 303 which offer obligatory dying sentence for the offenders.
India voted towards a United Nations General Assembly decision calling for a prohibition on
the loss of life penalty. In November 2012, India once more preserve its posture on capital
punishment via voting against the UN General Assembly draft decision request. To prohibit
death penalty.

HISTORICAL BACKGROUND
Capital punishment is an ancient sanction. There is nearly no us of a within the international
where the dying penalty has never existed. History of human civilization exhibits that in no
period of time capital punishment has been discarded as a mode of punishment. Capital
punishment for murder, treason, arson, and rape turned into broadly employed in historic
Greece beneath the legal guidelines of Draco (fl. 7th century BCE), though Plato argued that
it must be used most effective for the incorrigible. The Romans extensively utilized it for a
huge variety of offenses, though citizens were exempted for a brief time throughout the
republic.
This reveals support within the statement made by way of Sir Henry Marine who said that
"Roman Republic did no longer abolish dying sentence even though its non-use turned into
basically directed with the aid of the practice of punishment or exile and the system of
questions".

CASES DEALING WITH DEATH PENALTY IN INDIA

 MITHU VS STATE OF PUNJAB ( 1983)

 In this case the Supreme Court struck down Section 303 of the Indian Penal Code,
which provided for mandatory death sentence for offenders.

 BACHAN SINGH VS STATE OF PUNJAB

In this case the Supreme Court says that capital punishment was given only to the
rarest of rare cases.

 JAGMOHAN VS STATE OF UP
This was the first case dealing with the question of constitutional validity of capital
punishment in India.

THE DOCTRINE OF “Rarest of Rare”

In the case of Bachan Singh V. State of Punjab, the Supreme Court mentioned its view
regarding death penalty that dying penalty should be awarded simplest in rarest of rare cases.
This view of Supreme Court became extraordinarily supported because it aimed to reduce the
usage of Capital Punishment. The Ratio Decidenti or the Rule of Law carried out by the
Supreme Court in the case of Bachan Singh is that- the death penalty is constitutional most
effective if it acts as an alternative to lifestyles imprisonment. And same will be carried out in
rarest of uncommon case when the alternative option is definitely foreclosed.

Further, inside the case of Santosh Kumar Bariyar V. State of Maharashtra, the Supreme
Court in addition explained that “The rarest of rare dictum simplest serves as a guiding
principle in enforcing the provisions referred to in Section 354(3) of CrPC and entrenches the
coverage that existence imprisonment is the rule of thumb and loss of life punishment is an
exception.

The Constitution of India under Article 21 states that no man or woman shall be
disadvantaged of his ‘Right to Life’ except finished with due technique of regulation. In the
case of dying penalty whilst the punishment of death is provided then it also limits the scope
of advent of new information or law within the case. If the punishment has been done it's far
irrevocable.

Law Commission Report of 2015

India’s Law Commission in its 262nd Report (August 2015) recommended that the concept
of death penalty should be abolished for all crimes other than terrorism related offences to
safeguard national security. The Law Commission in its previous review in the year 1967, the
commission concluded that India couldn’t risk the “experiment of abolition of capital
punishment”. But in 2015 the Commission stated that “the commission feels that the time has
come for India to move towards abolition of the death penalty”. Despite the fact that death
sentences are rarely executed in India, still the commission suggested that the penalty should
be abolished. The commission gave following reasons:-
 Times have changed.
 It’s not a Deterrent.
 India’s justice system is flawed

LEGAL PROCEDURE
Just the once the death verdict is awarded by a sessions (trial) court, the ruling must be
established by a High Court to make it finishing. Once confirmed by the High Court, the
condemned convict has the option of appealing to the Supreme Court. If this is not possible,
or if the Supreme Court turns down the appeal or refuses to hear the petition, the condemned
person can submit a ‘mercy petition’ to the President of India and the Governor of the State.
The present day constitutional clemency powers of the President and Governors originate
from the Government of India Act 1935 but, unlike the Governor-General, the President and
Governors in independent India do not have any prerogative clemency powers.

EXECUTION PROCEDURE
 Hanging
It is the method of execution in the civilian court system, according to the Indian
Criminal Procedure Code.
 Shooting
Under the 1950 Army Act, hanging as well as shooting are both listed as official
methods of execution in the military court martial system.

COMMUTATION OF CAPITAL PUNISHMENT

The Constitution of India u/A 161 & 72 empower the Governor of any State and President of
India to award pardons, reprieves, respites or remissions of penalty or to suspend, remit or
commute the sentence of any person convicted of any offence.
a) in all cases where the punishment or sentence is by a Court Martial;
b) in all cases where the punishment or sentence is for an offence against any law
relating to a matter to which the executive power of the Union/State extends;
c) in all cases where the decree is a verdict of fatality.

INTERNATIONAL SCENARIO
The international landscape regarding the death penalty – both in terms of international law
and state practice – has evolved in the past decades. Internationally, countries are classified
on their death penalty status, based on the following categories:
 Abolitionist for all crimes
 Abolitionist for ordinary crimes
 Abolitionist de facto
 Retentionist
At the end of 2014, 98 countries were abolitionist for all crimes, 7 countries were abolitionist
for ordinary crimes only, and 35 were abolitionist in practice, making 140 countries in the
world abolitionist in law or practice. 58 countries are regarded as retentionist, who still have
the death penalty on their statute book, and have used it in the recent past10 . While only a
minority of countries retain and use the death penalty, this list includes some of the most
populous nations in the world, including India, China, Indonesia and the United States,
making a majority of population in the world potentially subject to this punishment. Country
wise list of these four categories is given at Annexure-II.

CONCLUSION
“Life is precious and death is irrevocable” When a loss of life penalty is provided to the
accused it's far extra than mere a punishment, we're ending or killing a person in name of
justice and law. Killing a person is immoral and it demonstrates the shortage of recognize in
the direction of human life. And opposing demise penalty doesn’t imply that a person is
supporting the criminal. When a death penalty is offered it gets rid of the scope of
development which could have changed the lifestyles of an person, this is the reason why
democracies round the arena are helping reformative principle of punishment and abolishing
deterrent idea of punishment. “Even the vilest crook stays a individual possessed of not
unusual human dignity” as a result one be presupposed to esteem each every body person .
We are not any one to decide who receives to live and who gets to die on the basis of
regulations and guidelines which we made ourselves. It is genuine that a crook desires to be
punished for the crimes he dedicated however we as a civilization want inside the route of
cast off the offense no longer the illegal. This is the main difference between man or women
and animals. We are given a precious gift – ‘we're a human’ and killing another person falsify
the mere purpose of being a individual. We name ourselves a ‘civilized society’ but we kill
some other man or women inside the name of justice. The principle of dying penalty is based
totally on deterrent theory which in general phrases set an example with the aid of inflicting
worry at the thoughts of others but there are sure other approaches through which a main
example can be set consisting of in reformative idea. The concept of capital punishment is
historical and barbaric and ought to be abolished as it includes killing of a human being that's
immoral as life is precious and loss of life is irrevocable. Democracies must thrive more on
reformative theory rather than deterrent theory because it provide a hazard of development
that may alternate the life of an character and can provide him a danger to get again within
the society and subsequently reformative theory has its gain over deterrent principle. After
searching at all of the facts and record we can finish that China still has an extended way to
cover with the intention to abolish the concept of dying penalty.

BIBLIOGRAPHY

Books
 N.V. Paranjape, Crime and PunishmentTrends and Reflection (Edition- 2015).
 C K Thakker ‘Takwani’ and M C Thakker, Criminal Procedure (4th Edition, 2014).
 Navin Kumar, Criminal Psychology (1st Edition, 2015).

Articles
 China mulls ending death penalty for nine crimes, THE HINDU (Oct. 27, 2014, 10:07
am), http://www.thehindu.com/news/ international/china-mulls-ending-deathpenalty-
for-nine-crimes/article6538206
 Helping the world achieve a moratorium on executions, World Coalition (Nov. 4,
2014, 4:15 pm), http://www.worldcoalition. org/moratorium.html
 UN and The Declaration of Human Rights, OCADP.ORG (Nov. 6, 2014 12:10 am),
http://www.ocadp.org/un-and-thedeclaration-of-human-rights.html
 Rarest of Rare Doctrine: Death Penalty, Academike (Dec. 7,2014), https://www.
lawctopus.com/academike/rarest-raredoctrine-death-penalty/
 https://amity.edu/UserFiles/aibs/3fc0Article-XII%20(Page%2088-92).pdf