It is wonderfully said that “The Punishment is justice for the unjust”, since ancient times the medium for controlling the crime and rendering justice to the victim is “Punishment”. If we especially owe our reference to India then there are provisions for Death Penalty in the Laws for heinous and serious crimes like waging war against the State, Murder, Rape, Terrorism, etc. However, the Death Penalty is the most controversial issue for the Legislative Authorities as well as the Judiciary to decide weather it is justified or not ?. The Indian scholars and human rights experts are of the view that the capital punishment must be abolished in the country, as they neither reduces or prevents the crime neither it stops the criminals from indulging in any of the criminal activities. It is pertinent to mention here that as-per the Report of Amnesty International in 2017, around 142 countries in the world has abolished the death penalty in law or practice, whereas top four countries in 2017 were responsible for the 84 percent of the total execution held in the world, among which the China held more than 1000 executions each year.
Legal Validity Of Death Penalty In India
It is significantly important for us to understand that our Indian Laws and the Constitution recognizes the punishment of Death Penalty having pursuance to the legal limitations along-with with acting in furtherance of justice. According to Section 354 (5) of the Code of Criminal Procedure, 1973 the person shall be hanged till death when that person is awarded a death punishment, even various Sections like 121, 132, 194, 302, 305, 364A, etc. of Indian Penal Code, 1860 and some other provisions of POSCO Act, 2012, NDPS Act, 1985, SC/ST (Prevention of Atrocities) Act, 1989 provides the punishment of death sentence, however it is the maximum punishment for the crime and it’s execution wholly depends upon the gravity of the crime and discretion of the Hon’ble Court. Our Constitution of India under Article 21 enunciates that “No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before law or equal protection of laws within the territory of India”. The use of words “Except according to procedure established by law”, itself makes it clear the fact that the life may be taken by the procedure established by law i.e. the Statutes and Acts containing the proviso for death sentence, allowing the Courts to award the same, if required by the situation. It is very much significant that the provision of death penalty must not be mis-used and must be invoked under the exceptional circumstances pertaining to use of “Doctrine of Rarest of the Rare” as it was held by Hon’ble Supreme Court of India in Bachan Singh v. State of Punjab, AIR 1980 2 SCC 684. Therefore, the death punishment is still not abolished and it is crystal clear that the Capital Sentence is wholly legal is India.
Is Death Penalty against Humanity
It is an established fact that in 21st Century, especially in democratic countries like India, USA, UK, etc. death penalty does not have a place and is not regarded as an effective medium for curbing the crime rate and discouraging the criminals from indulging in criminal activities. Many of the International Conventions and Organizations like United Nations for Human Rights (UNHR), International Covenant on Civil and Political Rights (ICCPR), Universal Declaration on Human Rights (UDHR), in many of which the India is a signatory, recommends for abolition of Death Penalty throughout the world in the interest of humanity and human rights, however death penalty is allowed even asper Article 05 of UNHR in limited circumstances.
It is pertinent to mention here that in India, the issue of validity of death penalty on the basis of human rights has been raised several times in the judicial history of the country, and from various judicial pronouncements of the Apex Court and Ors. it is wholly and totally clear that the death penalty is still legally valid in India, and can be awarded only in exceptional circumstances. In the most famous case of Jagmohan Singh v. State of UP, AIR 1973 SC 947 the Five-Judges Bench of Supreme Court of India held that the Death Penalty is wholly constitutional and not violative of Article 19 and 21, which can be awarded in exceptional circumstances. However, in year 1983, Section 303 of Indian Penal Code, 1860 was struck down by Judiciary as unfair and violative of Article 14 and Article 21. Lastly, in the most landmark case of Macchi Singh v. State of Punjab, AIR 1983 SC 957, the constitutional bench at Supreme Court headed by Justice Thakkar held that the Death Penalty is valid and has given five categories of crimes which comes under the “Rarest of the Rare” cases and deserves extreme penalty, which are brutal, cold-blooded and harsh murder of the victim by the accused.
At the last, we can conclude that in our present times we need to focus on the reformative theory of punishment, rather than deterrent theory of punishment, remember we need to eliminate the crime and hatred from the society not the criminals. The death penalty is not against humanity if it is executed having accordance to the procedure established by law and in interest of the society, however the recommendations of our Law Commission of India in 262nd Report of 2016 to abolish the death penalty in India in totality except few conditions i.e. waging war against the State, and terrorism related activities must be paid a proper heed in order to focus on the core lacunas of Judiciary and to improve it. As wonderfully said by King Mark Luther that “Injustice anywhere is threat to justice everywhere”, therefore our system should ensure justice to be rendered to victim, with also not doing injustice with the accused.
Author: Yashraj Bais, student of B.A.LL.B(5yrs) course from Private Institution in Indore (M.P.)