Is capital punishment appropriate in india.

Is capital punishment appropriate in india.

1. Is capital punishment appropriate in India

2. What is capital punishment ? Capital Punishment is also known as a death penalty, execution of an offender sentenced to death after conviction of a criminal offence by a court of law. Indian Criminal justice system is one of the important parts of capital punishment.

3. Evolution of Capital Punishment in India India retained the 1861 Penal Code at independence in 1947, which provided for the death penalty for murder. The idea of abolishing the death penalty expressed by several members of the Constituent Assembly during the drafting of the Indian Constitution between 1947 and 1949, but no such provision was incorporated in the Constitution. In the next two decades, to abolish the death penalty, private members bills were introduced in both Lok Sabha and Rajya Sabha , but none of them were adopted. It was estimated that between 1950 and 1980, there were 3000 to 4000 executions. It is more difficult to measure the number of people sentenced to death and executed between 1980 and the mid-1990s. It is estimated that two or three people were hanged annually. In the 1980  Bachan Singh judgment , the Supreme Court ruled that the death penalty should only be used in the  “rarest of rare”  cases, but it is not clear what defines the rarest of the rare

4. 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, 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 offence .

5. What are the execution methods followed in India ? There are two methods of execution in India and they are: Hanging - All the death penalties in India are carried out by hanging. After independence,  Godse  was the first person to be executed in India by the death penalty in the case of  Mahatma Gandhi.  India’s Supreme Court suggested the death penalty should only be imposed on the rarest of rare cases in India. Shooting- Under the 1950 Army Act, both hanging and shooting are listed in the military court-martial system as official methods of execution

6. What are the Death Penalty crimes ? The crimes and offences which are punishable by death are: Aggravated murder - It is punishable by death in accordance with  Section 302  of the Indian Penal Code, 1860. In  Bachan Singh v. State of Punjab ,   the Court of India held that the death penalty is constitutional only when applied as an exceptional penalty in “the rarest of the rare” cases. Other offences resulting in death - In the Indian Penal Code, the death penalty is given to a person who commits murder during an armed robbery. The abduction of the victim for the money is punishable with the death penalty if the victim is killed. Organized crime involvement, if it leads to death, is punishable by death. Committing or helping to commit Sati to another person is also punishable by the death penalty. Terrorism-related offences not resulting in death - Muhammad Afzal was executed by hanging on 9th February 2013. He was executed of the December 2001 attack on India’s parliament in which nine people got killed by five gunmen armed with guns and explosives. Mohammad Ajmal Amir Qasab , the only surviving shooter in 2008, was hanged on 21 November 2012 for various crimes, including waging war on India, murder and terrorist acts.The use of any special category of explosive to cause an explosion that could endanger life or cause serious damage to property is punishable by the death penalty. Rape not resulting in death- A person who inflicts injury in a sexual assault which results in death or is left in a “persistent vegetative state” may be punished with death under the Criminal Law Act, 2013.Gang rapes are punishable with death penalties. These changes were imposed after medical student Jyoti Singh Pandey’s 2012 gang rape and death in New Delhi.According to the 2018 Criminal Law Ordinance, a person who is liable for raping a girl who is below 12 years of age may be sentenced to death or sent to prison for 20 years along with fine. The 2018 amendment also specifies the death penalty or life imprisonment for a girl’s gang rape under the age of 12. These changes to criminal law followed an eight-year-old girl’s rape and murder, Asifa Bano , who triggered a lot of political unrest in Jammu and Kashmir State and across the country.

7. Kidnapping not resulting in death -According to  Section 364A  of Indian Penal Code, 1860, kidnapping not resulting in death is an offence punishable by death. If any person detaining anybody and threatens to kill him or harm him during which the kidnapper’s act actually resulted in the death of the victim, will be liable under this section. Drug trafficking not resulting in death -If a person convicted of a commission or attempt to commit, abet, or criminal conspiracy to commit any of a range of drug trafficking offences, or financing of certain types and amounts of narcotic and psychotropic substances, he or she can be sentenced to death. Treason -The death penalty is given to any person who is waging or trying to wage war against the government and helping Navy, Army, or Air Force officers, soldiers, or members to commit a mutiny. Military offences not resulting in death -Abetment of assault, mutiny or attempting to seduce airman, soldier, the sailor from his duty and various other offences are punishable by death if committed by a member of the Army or Navy or Air Force. Other offences not resulting in death -If a person is a party to criminal conspiracy to commit a capital offence is punishable by death.Attempts to kill those sentenced to life imprisonment are punishable by death if the victim is harmed by the attemptIf a person provides false evidence with the knowledge that it can lead to the conviction of a person belonging to scheduled caste or tribe for committing a capital offence on the basis of such evidence, will be punished with the death penalty if it results in the conviction and execution of an innocent person

8. Which category of offenders are excluded from Capital Punishment ? Minor -According to the law in India, a minor who is under the age of 18 at the time of committing a crime is not executed. Pregnant Women - Clemency must be granted to a pregnant woman sentenced to death according to a 2009 amendment. Intellectually Disabled - According to the Indian Penal Code, a person while committing a crime who was mentally ill or is not able to understand the nature of the act or the act is wrong, then that person can be held liable under the law and can be punished with the death penalty.

9. 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.  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 a 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.

10. Why the Capital Punishment should be abolished? Capital punishment is the punishment of death which is generally awarded to those guilty of heinous crimes, particularly murder and child rape. In Indian the traditional way of awarding this punishment is “handing by the neck” till the death of the criminal. In other countries, shooting, electric chair, etc…,are the various devices used for the purpose . Though the awarding of capital punishment, specially for murder, is according to age-old, tradition, in recent times there has been much hue and cry against it. It has been said that capital punishment is brutal, that it is according to the law of jungle – “an eye for an eye”, and tooth for a tooth”. It is pointed out that there can be no more place for it in a civilized country. Moreover, judges are not infallible and there are instances where innocent people have been sent to the gallows owing to some error of judgment . Capital punishment is nothing but judicial murder, it is said, specially when an innocent life is destroyed. Besides this, capital punishment, as is generally supposed, is not deterrent. Murders and other heinous crimes have continued unabated, inspite of it. The result of such views has been that in recent years there has been an increasing tendency in western countries to award life imprisonment instead of capital punishment. Muslims countries, generally speaking, continue to be more serve in this respect . Despite frequent demands from all society Indian has not so far abolished capital punishment. But even in India there has been a decline in the frequency of such punishment. It is now awarded only in cases of hardened criminals and only when it is established that the murder was not the result of a momentary impulse, the result of serious provocation, but well-planned and cold-blooded. In such cases, it is felt that nothing less than capital punishment would meet the ends of justice, that it is just and proper that such pests of society are eliminated. Those who indulge in anti-social and sternest possible measures should be taken against them, specially when they are habitual offenders . It is, therefore, in the fitness of things that India has not so far abolished capital punishment but used it more judiciously. Sociologist are of the view that capital punishment serves no useful purpose. A murderer deprives the family of the murdered person of its bread-winner. By sending the criminals to gallows, we in no way help or provide relief to the family of the murdered. Rather, we deprive another family of its bread-winner. The sociologists, therefore, suggest that the murderer should be sentenced for life to work and support the family of murdered person as well as his own. In this way, innocent women and children would be saved from much suffering, hunger and starvation. Moreover, such measures would provide the criminals with an opportunity to reform himself. He would be under strict watch and if his conduct is satisfactory, he may be allowed to return to society as a useful member of it . There is much truth is such views, and they must be given due weightage before a decision is taken to abolish or retain capital punishment. But Capital punishment should be continue for those who commit rare of the rarest crimes such as child rape, group rape, terrorism and etc

11. Retention 1 . Capital Punishment acts as a deterrent. If the death sentence is removed, the feast that comes in the mind of people committing murder will be removed. “Do we want more of murders in our country or do we want less of them?”All sentence are awarded for security and protection of society, so that every individual may live in peace. Capital punishment is needed to ensure this security. 2. Elimination of the criminals. When the public peace is endangered by certain particularly dangerous forms of crime, death penalty is the only means of eliminating the offender. 3. Possibility of repeated murders. Society must be protected from the risk of a second offences by a criminal who is not executed and who may be released, after release may commit murder again.

12. Conclusion Death as a penalty has plagued human mind perennially. Death sentence must fulfill the conditions for protection of human rights in Criminal Justice Administration in India. Execution of Dhananjay Chatterjee in 2004, after fourteen years in death cell and thereafter in the year 2006 Md. Afzal’s instance of capital punishment again gave new impetus to the debate between abolitionists and retentionists concerning speedy justice, fair trial, protection of human rights of the persons under death sentence, their human dignity as well as the victimological perspective to maintain law and order in society. In the words of P.N. Bhagwati , J. in Bachan Singh v. state of Punjab “the judges have been awarding death penalty according to their own scale of values and social philosophy and it is not possible to discern any consistent approach to the problem in the judicial decisions”. Therefore, whether the sentence will be for death or for life imprisonment depends, in a large measure, on the court or composition of bench of the court. We have seen earlier about execution and commutation of death sentences into life imprisonment, there are several judgments which show that there are no fix principles to determine delay and other factors in the similar cases. Even in Dhananjay Chatterjee’s case there was fourteen years’ delay in execution of death sentence but it was not commuted to life imprisonment although in some earlier cases two years, two and half years, three years and nine years delay in execution was treated as violation of human rights and fair procedure and their sentences were commuted to life imprisonment. Is this not a violation of articles 14 and 21 of the Constitution which enshrine fundamental and sacrosanct rights of human beings