Evolution of the death penalty
The inception of the Death Penalty can be traced back to Eighteenth Century B.C in the
Code of King Hammurabi of Babylon, wherein the death penalty was codified for 25
different crimes. The death penalty can also be outlined in the Draconian Code in
Athens, which made the death Penalty compulsory for all the types of crimes
committed.The criminals were made to serve the punishment by such means as burning
alive, drowning, beating to Death, impalement, and burning alive. It was in the Tenth
Century A.D., that hanging became the customary method of execution in Britain. In the
subsequent century under the reign of William the Conqueror, it was not allowed to
hang people except during wars. With the passage of time even Britain started
refraining from passing the death sentence.
Position in India
India opposed a UN resolution calling for a moratorium on the death penalty because it
goes against the Indian statutory legislation as well as against each country’s sovereign
right to establish its own legal system.
In India, it is awarded for the most serious of crimes. It is awarded for heinousness and
grievous crimes. Article 21 says that no person shall be deprived of ‘right to life’ which is
promised to every citizen in India. In India, various offences such as criminal conspiracy,
murder, war against the government, abetment of mutiny, dacoity with murder, and
anti-terrorism are punishable with death sentences under Indian Penal Code (IPC). The
president has the power to grant mercy in a case of death penalty. Bachan Singh vs
State of Punjab,[1] the Court held that capital punishment will only be given in rarest of
rare cases.
Only the president has the power to confer mercy in cases related to death sentences.
Once a convict has been sentenced to death in a case by the Sessions Court, it must
be confirmed by the High Court. If the appeal to the Supreme Court made by the convict
fails then he may submit a ‘mercy petition’ to the President of India. Detailed instructions
on the procedure are to be followed by States to deal with petitions for mercy from or on
behalf of death-sentenced convicts. Appeals to the Supreme Court and requests for
special leave to appeal to that court by such convicts shall be set out by the Ministry of
Home Affairs. Under Article 72 of the Constitution of India, the President has the power
to grant pardon, reprieves, respites or remissions of punishment or to suspend, remit or
reduce the sentence of any person who has been convicted of an offense.
Constitutional law
Article 21 of the Constitution guarantees the right to life and personal freedom to all,
including the right to live with human dignity. The state may take away or abridge even
the right to live in the name of law and public order. But this procedure must be “due
process” as held in India’s Maneka Gandhi v. Union.[3] The procedure that takes away a
human being’s sacrosanct life must be just, fair and reasonable. Our constitutional
principle can be stated as follows:
● Only in rarest of rare cases, the death penalty should be used.
● Only on special grounds, the death penalty can be sentenced and should be
treated as exceptional punishment.
● The accused shall have the right to hear.
● In the light of individual circumstances, the sentence should be individualized.
● The death penalty shall be confirmed by the High Court. Under Article 136 of the
Constitution and under Section 379 of the Cr.P.C., there is a right to appeal to the
Supreme Court.
● The accused may pray for forgiveness, commutation, etc. of sentence under
Sections 433 and 434 of the Cr.P.C. and to the President or the Governors under
Articles 72 and 161. Articles 72 and 161 contain, apart from the judicial power,
discretionary power for the President and governor to interfere with the merits of
the matter; however, there is a limited authority for judicial authorities to review it
and it must ensure that the President or the governor has all relevant documents
and material before them.
● However, the essence of the governor’s power should not rest on race, religion,
caste or political affiliations, but on rule of law and rational issues.
● In accordance with Articles 21 and 22 of the Constitution, the accused has the
right to a prompt and fair trial.
● The accused is not entitled to be tortured under Article 21 and 22.
● Under Articles 21 and 19 of the Constitution, the accused has freedom of speech
and expression under custody.
● The accused is entitled to be presented by duly qualified and appointed lawyers.
Case laws
● In Jagmohan v. State of U.P, the Supreme Court held that Articles 14, 19 and
21 did not violate the death penalty. The judge was said to make the choice
between the death penalty and life imprisonment based on circumstances, facts,
and the nature of the crime recorded during the trial. The decision to award the
death penalty was therefore made in accordance with the procedure laid down by
law as required by Article 21.
● But, in Rajendra Prasad v. State of U.P, the judge held that unless it was shown
that the criminal was dangerous to society, capital punishment would not be
justified. The learned judge pleads that the death penalty is abolished and said
that it should be retained only for “white collar crimes”. It was also held that the
death penalty for the murder offence awarded pursuant to I.P.C. Section 302 did
not violate the constitution’s basic feature.
● But, in Bachan Singh, v. State of Punjab,explained that, in accordance with an
equitable, fair, and reasonable procedure laid down by law, the constitutional
bench of the Supreme Court has recognized Article 21 the State’s right to deprive
a person of his life. In addition, there was no violation of the basic character of
the Constitution by the death penalty for the murder offence granted under
Section 302 I.P.C.
Conclusion
There has been an increase in the worldwide acceptance of the notion that Death
Penalty is inhuman, cruel, and a very degrading punishment. It in its entirety is
dangerous and endorses violence, with a failed attempt of delivering public safety or of
deterring violent crimes. All the major cultures, religions, and regions have now done
away with the death penalty. As per the statistics given by the United Nations, more
than 150 countries no longer use it or have abolished it. In India as well, suggestions
have been given to strike down the death penalty as by retaining the death penalty, we
may execute someone to death who turns out to be innocent