CAPITAL PUNISHMENT

IN INDIA

SUBMITTED BY - JATIN NAIN

ROLL NO. - 23BL010
INTRODUCTION
In the modern world, the rate of crime is continually rising. There have been more homicides,
kidnappings, rapes, terrorist attacks, and instances of child abuse. Laws and punishments
designed to discourage and prevent crime must be implemented right away in such a
scenario. One of the primary tenets of modern civilization is punishment, which is the use of
force to enforce the rule of the state. To keep society's law and order, the state must punish
violators. In the past, these offenses were not specifically defined by any law or decree, and
the state's monarch decided how harshly to punish the offender. Modern notions of
punishment developed over time, and the state was granted the voluntary authority to uphold
law and order as well as our rights. The penalties include fines, jail time, the death penalty,
and life in prison. Known by many as the "death penalty," or "capital punishment," this is the
worst punishment available today. The death sentence is intended to scare individuals away
from doing something by making them fearful of the repercussions. Serious and traumatic
crimes against society as a whole, such murder, rape, rape with murder, etc., are subject to
this punishment. Although not all of the offenses listed above definitely call for the death
penalty, it is applied when a crime is so horrible that it has the ability to terrorize society as a
whole. Only crimes that fit within the "rarest of rare doctrine" are subject to the death penalty.

WHAT IS CAPITAL PUNISHMENT?

The term ‘capital’ is derived from the Latin word ‘capitalis’, which means concerning the
head. Thus, to be subjected to capital punishment means to lose one’s head. Capital
punishment, also known as the death penalty, is the execution of a criminal who has been
sentenced to death by a court of law for a serious felony. It is regarded as the harshest type of
penalty. It is a form of retribution for the most egregious, terrible, and disgusting acts against
humanity. The death sentence has always been the outcome of such crimes, despite the fact
that the definition and extent of such crimes differ by country, state, and age.

HISTORICAL BACKGROUND

 Death penalty under the Hindu law

Penalties have been an essential component of civilization since the beginning of human
history. The death penalty and exile were two simple means of eliminating the delinquent
elements of society; they were the best forms of punishment and dissuasion available to them.
The history of the death punishment is as old as the Hindu community. The old texts and
writings make reference to the death punishment. In the Hindu judicial system, the death
penalty was not seen as barbarous; instead, it was substituted with as much suffering as
possible in order to have a drastic effect on society. Pieces of the death punishment that date
back to the fourth century have been found.

 DEATH PENALTY UNDER MUGHAL EMPIRE

The powerful Mughal Empire dominated India's medieval history. Their governance mostly
adhered to the laws of the Quran. The law was not consistently applied in all regions of the
world, and judges had the power to administer arbitrary punishments in addition to taking
Quranic rules into account when resolving disputes. Akbar was a very lenient person; he
thought that the death penalty should only be used to serious sedition offenses and only after
much thought. In addition, he thought that no one should be killed and then subjected to
severe punishments like mutilation or other atrocities. Jahangir and Aurangzeb both had
comparable laws.

 DEATH PENALTY IN PRE AND POST INDEPENDENCE ERA

The issue of the death penalty was not discussed in the legislative assembly of British India
until 1931, when Shri Gaya Prasad Singh, a member from Bihar, attempted to introduce a bill
to abolish the death penalty for crimes under the Indian Penal Code. But after receiving a
response from the then-home minister, the motion was rejected. Twice in Legislative
Assembly debates prior to independence, the government's stance on the death penalty in
British India was made clear by the then-home minister, Sir John Thorne. “The Government
does not believe that it is prudent to repeal the death penalty for any crime for which it is
currently authorised.”

CRIMES PUNISHABLE BY DEATH PENALTY

Offenders must be punished in order to discourage them, but they must also be given the
chance to change. The courts must give a thorough explanation for their decision when the
death penalty is applied. The death penalty is a sanction under several legislative statutes,
which include:

THE INDIAN PENAL CODE, 1860

The Indian Penal Code contains several crimes that include the death penalty. They are
discussed as follows:
  One of the crimes that have been connected to the death penalty is waging war against
India or attempting to do so. Section 121 1 of the IPC has a particular definition of the
crime of waging war against a nation. Anybody who successfully launches or attempts
a war against India faces the death penalty.
 The death penalty has also been associated with the abatement of mutiny. Abatement
of armed rebellion by an officer or member of the army, navy, or air force is specified
in Section 132 of the I.P.C and accordingly, anyone who abets in the commission of a
mutiny by an officer, soldier, sailor, or pilot in the army, navy, or air force of the
Government of India, so that mutiny will be committed as a result of that complicity,
can be punished by death.
 The list of offenses punishable by death has been expanded to include Section 194 2 of
the IPC. According to Section 194, fabricating evidence is punishable by the death
penalty if it is done to obtain a capital conviction for a crime. Anyone found guilty of
such a crime could be executed.
 Section 3023 of the IPC imposes the death penalty for a person who commits murder.
 Assisting or supporting a minor’s suicide has been associated with the death penalty.
The IPC's Section 3054 addresses the penalties for aiding or encouraging a person
under the age of eighteen or an individual with an intellectual disability to take their
own life. Anybody who commits this offense could therefore be executed.
 Kidnapping someone for ransom or any other reason is a serious crime that carries a
death sentence. A person may be abducted with the intention of harming or killing
them, as defined by Section 364A of the IPC. Anyone found guilty of this offense
could be executed.
 Section 376A5 specifies the death penalty for rape that results in death or a
permanent vegetative state of the victim.
 Under section 376E6, repeat rape offenders may face the death penalty.
 Section 3967 also provides for the death penalty in cases of dacoity with murder.

Category of offenders exempted from capital punishment

1
The Indian Penal Code, 1860 (Act 45 of 1860), s.121
2
The Indian Penal Code, 1860 (Act 45 of 1860), s.194
3
The Indian Penal Code, 1860 (Act 45 of 1860), s.302
4
The Indian Penal Code, 1860 (Act 45 of 1860), s.305
5
The Indian Penal Code, 1860 (Act 45 of 1860), s.376A
6
The Indian Penal Code, 1860 (Act 45 of 1860), s.376E
7
The Indian Penal Code, 1860 (Act 45 of 1860), s.397
MINORS
According to Indian laws, a person who committed a crime while still a minor, that is, before
the age of 18, cannot be executed. Because they believed that everyone who hasn't reached
adulthood had room for development and might be able to learn from his mistakes by being
given the correct environment and education, the lawmakers opted to put children in the
category of offenders exempt from the death penalty. Furthermore, our laws include a
different statute called the Juvenile Justice Act (2015), which is only applied in cases
involving juveniles. This is advantageous since it allows offenders to grow.

PREGNANT WOMEN

Pregnant women were added to the list of criminals who are excluded from the death penalty.
Section 4168 of the CrPC states that a woman who has been given a death sentence may have
her sentence postponed or reduced to life in prison if the high court determines that the lady
is pregnant. This is justified by the fact that a pregnant woman who is hanged kills both
herself and the unborn child. The unborn kid in the mother's womb is innocent and does not
deserve to perish as a result of the woman's actions. Thus, pregnant women might be included
in the group of criminals who are not subject to the death penalty.

INTELLECTUALY DISABLED

According to the law, anyone who is intellectually disabled or challenged may fall under the
category of offenders who are exempted from the death penalty. It is sometimes said that a
person who commits a significant crime has an intellectual disability if they are unable to
understand the nature of their actions and the repercussions of them. Someone with a criminal
record may not know the details of their crime because of their intellectual handicap. As a
result, lawmakers expanded the list of criminals who were spared the death penalty to include
those who are mentally challenged.

PROCEDURE AFTER THE IMPOSITION OF DEATH PENALTY

CONFIRMATION BY THE HIGH COURT

8
THE CODE OF CRIMINAL PROCEDURE, 1973 s.416
After the punishment is imposed, the session's court, in compliance with Section 366 9 of the
CrPC, shall present the case proceeds to the high court of the appropriate state for
confirmation of the sentence. Until the High Court validates the sentence, the court that
passes the sentence must place the guilty party under arrest.

ENQUIRY AND ADDITIONAL EVIDENCE

According to Section 36710 of the CrPC, the high court may order a further investigation of
the incident or the collection of additional evidence at any point relevant to the convicted
person’s guilt or innocence.

HIGH COURT’S POWER TO APPROVE SENTENCES OR ANNUL CONVICTIONS

Section 36811 of the CrPC grants the high court the authority to modify the charges and order
a new trial, as well as to uphold a conviction and inflict any other sentence the court sees fit.
The sentence cannot be confirmed by the court until the deadline for submitting an appeal has
passed.

CONFIRMATION OF THE NEW SENTENCE

Any order or punishment, whether newly imposed or one that has previously been passed by
the High Court, that is submitted to the High Court for confirmation must have the approval
and signature of a minimum of two judges, as per Section 36912 of the CrPC.

DELIVERY OF A COPY OF THE ORDER TO THE COURT OF SESSION

Section 37113 of the CrPC states that the Honourable High Court's confirmation of a sentence
or any other order it may issue shall be delivered right away to the Court of Session, sealed
with the High Court's seal and authenticated by an official High Court official signature.

CLEMENCY POWERS

The high court must confirm the death sentence in order for the session court's decision to
carry it out. The convicted party may appeal to the Supreme Court if the conviction is upheld.
9
THE CODE OF CRIMINAL PROCEDURE, 1973 s.366
10
THE CODE OF CRIMINAL PROCEDURE, 1973 s.367
11
THE CODE OF CRIMINAL PROCEDURE, 1973 s.368
12
THE CODE OF CRIMINAL PROCEDURE, 1973 s.369
13
THE CODE OF CRIMINAL PROCEDURE, 1973 s.371
The sentenced person may next petition the President of India and the state governor for
mercy if the appeal petition is rejected by the highest court. The President and Governors
have the authority, under Articles 72 14 and 16115 of the Constitution, “to grant pardons,
reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the
sentence of any person convicted of any offence.” These are not personal powers of the
holders of the office, rather, they are to be exercised in accordance with Articles 74 16 and
16317, respectively, with the assistance and advice of the Council of Ministers. Although
clemency powers can be applied for a wide range of reasons and situations, they also serve as
the last line of defence against the risk of judicial error or a miscarriage of justice. In
particular, when the petition comes from a prisoner who is about to be executed and has a
confirmed death sentence from the court, it places a great burden on those who exercise this
power and requires careful consideration, close examination of court documents, and
thorough investigations when deciding whether to grant clemency.

EXECUTION PROCEDURE IN INDIA

HANGING

According to Section 354(5)18 of the CrPC, hanging is the only mode of execution that is
allowed in India for a civilian, and it is the method used in the civilian court system.

SHOOTING

Shooting is another type of execution practiced in India. A prisoner who has been sentenced
to death may be put to death by a member of the firing squad. The Army, Air Force, and Navy
are the only organizations that are able to carry out the death penalty in this way. The Army
Act of 1950 states that hanging and gunshot are both acceptable means of death in the army
court-martial system.

CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT

As everyone knows, the fundamental right to life and personal liberty is guaranteed by Article
21 of the Constitution. Although everyone's right to life and personal liberty is protected by
this article, is it absolute? No, since although if everyone has the right to live in dignity, the

14
The Constitution of India, art.72
15
The Constitution of India, art.161
16
The Constitution of India, art.74
17
The Constitution of India, art.163
18
THE CODE OF CRIMINAL PROCEDURE, 1973 s.354(5)
state has the power to restrict or even take away this right in order to maintain law and order.
However, because taking a person's sacred life requires a due process that is fair, reasonable,
and impartial, as was decided in the 1978 case Maneka Gandhi v. Union of India 19. It suggests
that the state may use laws to limit or eliminate a person's right to life as long as a legitimate
and equitable process is in place. But only the most awful crimes are subject to the death
penalty; other crimes are not punished in this way. Our legislators have long engaged in
heated discussions and debates on the death penalty. However, after years of discussion and
controversy, Indian lawmakers are still unable to come to a definitive conclusion regarding
the death penalty's future. Most countries have diverse views on crime and varied approaches
to dealing with offenders. However, India, like many other countries, believes that altering
the criminal's behaviour and attitude toward society is a more effective way to deal with
crime. This is known as the reformative approach to punishment. Out of the 78 countries,
India is one that still uses the death sentence. Furthermore, India recognizes two justifications
for applying the death penalty: "rarest of the rare" and "special reasons."

In the 1983 case of Macchi Singh & Others v. State of Punjab 20, a three-judge bench upheld
the decision of Bachan Singh and ruled that the death penalty could only be applied in
extremely rare circumstances where the community's collective conscience would expect
those in positions of judicial authority to carry out the death penalty. In these conditions, the
following conditions have to be met:

 when a particularly graphic, repulsive, or morally questionable murder is carried out

in an effort to provoke a strong, intense sensation of outrage in the society.
 In the incident of bride burning or dowry death.
 When the crime is massively proportionate.
 When a Scheduled Caste member is murdered, which sparks outrage in society.
 whether the victim of the murder is a defenceless child, an elderly or sick person, or a
vulnerable lady.

LAW COMISSION REPORTS ON THE DEATH PENALTY

35TH REPORT

The question of whether to keep the death penalty in place or abolish it has been discussed
extensively in India for a long time. The Law Commission investigated the death penalty for
19
Maneka Gandhi v. Union of India, AIR 1978 SC 597
20
1983 Air 957, 1983 Scr (3) 413
the first time in Indian history and made its findings public in its 35th Report. It stated that,
"As an experiment, the death penalty may be abolished once so that it can be re-introduced
again after completion of the experiment, but that, after looking to certain possibilities on the
issue, it is suggested that capital punishment must be retained as it is in the country."
Nonetheless, as will be covered in more detail in this section, the Commission stated in 2015
that they believed India should move closer to abolishing the death sentence.

187TH REPORT

The Law Commission of India again presented its 187th Report on the subject of the death
penalty in 2003. This Report covered incidental matters and the method of execution of death
sentences, but it did not address the crucial issue of the constitutionality of the death penalty.
The methods of carrying out death sentences—hanging, intravenous lethal injection, and
shooting were contrasted and distinguished by the Law Commission of India. The Committee
noted that the majority of hanging deaths are caused by asphyxia or strangling, which causes
the condemned person to die slowly and in agony. It was suggested in the Report that the
currently employed hanging technique be supplemented with lethal injections and that these
procedures be routinely evaluated. The Report evaluated the use of hanging as a method of
carrying out death sentences against objective criteria such global norms, current
criminological theories, and evolving standards of human decency. The Supreme Court has
agreed with the Law Commission's opinion that the execution procedure should be certain,
compassionate, swift, and dignified, and that the prisoner must be accorded dignity. It should
be mentioned that the Supreme Court is currently considering a challenge to this form of
execution that was filed in 2020. Prison guidelines specify a precise procedure for the
execution of death row inmates to ensure that these regulations are fulfilled.

262ND REPORT

In August 2015, the Law Commission of India, headed by Justice A.P. Shah, released
its 262ND REPORT on the issue of the death penalty in India. It was suggested that the death
penalty be abolished for all crimes other than those connected to terrorism and acts of waging
war. The Report includes the following recommendations:

 The Commission suggested that the government move quickly to establish policies
including victim compensation plans, witness protection programs, and police reforms
into place.
  The course of events of our own jurisprudence, which eliminated the need that the
death penalty be applied only in extreme circumstances and was first established by
the Supreme Court with particular justifications for life sentences and later with other
justifications, indicates the way forward. The Commission also believed that India
should move toward emancipation at this time, as the rights to life have been
expanded and enhanced. It restated the conditions necessary for productive
relationships between the State and the person.
 Despite the lack of a strong legal foundation for prosecuting terrorism in connection
with other offenses, there has sometimes been worry that lifting the death sentence for
crimes and acts of war might compromise national security. The group determined
that there was no need to postpone the first step toward abolishing the death sentence
for all offenses other than terrorism, in spite of the legislators' reservations.
 The Commission consequently recommended the abolition of the death penalty for all
crimes other than those related to terrorism and war crimes. The Commission also
genuinely hopes that swift and irreversible progress toward complete abolition will be
made.

WHY THE DEATH PENALTY STILL PREVAILS IN INDIA

In order to improve the environment for the general public, it is necessary to instil the fear of
death in the minds of criminals given that it is obvious that the reformative theory of
punishment has failed miserably in India and that the rate of wrongdoing has increased. India
also opposed the United General Assembly's proposal to outlaw or abolish the death penalty
since it violated the legal system in that nation. Even though it is considered a legal
punishment in India, the death penalty is only ever applied in cases of terrorism, intentional
suicide of a child, murder, etc. In the contemporary Indian setting, where rape and murder
cases are on the rise and harsh actions should be taken against the offenders, abolishing the
death sentence would be irresponsible. If the death penalty were utilized more often when an
accused person is proved guilty beyond a reasonable doubt, people would be deterred from
committing crimes because they believe that death is a more terrible punishment than life in
prison.

CONCLUSION
The death penalty, also known as capital punishment, has been used in India since time
immemorial. The death sentence has been India's most popular punishment for crimes and
offenses that basically break the law from the days of the monarchy. There was no such thing
as grave or significant offenses that could get you put to death. These days, before the death
penalty is applied, factors like "rarest of rare cases," "special reasons," "grievous crimes,"
"serious offences," etc. are taken into account. The death penalty is a contentious issue; the
global opposition to it has grown significantly, and many nations have abolished it as a means
of punishment. Apart from India, both Australian and American law imposes the death
penalty for crimes involving murder and rape. In its 262nd Report, the Law Commission also
suggested abolishing the death sentence, with the exception of acts of terrorism. so avoiding
outright banning it. It is important to keep in mind the cases in India when the accused were
given the death penalty and executed at this point. The death penalty is acknowledged as a
kind of retaliatory and preventive punishment as well as an effective deterrent in society.
Many claim that it is no longer a reliable deterrent and that it violates fundamental rights.
One argument in favour of the death penalty in India is that certain acts are so heinous and
horrific that the public conscience is so severely damaged that any punishment that is not the
death sentence is not justifiable or fair. In India, death warrants are only ever issued in the
rarest of rare cases and are always the exception. Therefore, abolishing the death penalty
entirely would put the nation at greater risk because the State would be unable to take the
necessary action when the rarest of rare cases arise.