DEATH PENALTIES SHOULD BE REGARDED UNCONSTITUTIONAL OR NOT
By:- thelawiq.com Author:- B.Solomon Raju (2021-2026 Batch) Damodaram Sanjivayya national law University
What is a death penalty?
Ans: Death Penalty also known as Capital punishment is a punishment that is given to criminals for serious offences committed by them. In which person will be executed (Hung to death) generally theses penalties are given for much serious offences and where it affects the society as large. Like E.g. Murder, Rape etc..
India Followed 1861 Indian penal code, and which provided Death penalty for murder In India while framing the constitution many debates were held to abolish the capital punishment (Death Penalty) but no such provision was included in IPC and many bills were passed in Lok Sabha and Rajya Sabha but no bill came into existence till now and in the case Bachan Singh vs State of Punjab it is said that death penalty is to be given in the rarest of the rare case but rarest of the rare case was not interpreted properly.
In India it is death penalty is awarded to most serious offences such as Rape, Murder, Dacoity, Anti-Terrorism etc…. Article-21 Says that no person is deprived of ‘Right to life’ which is promised to every citizen of India and death penalty is given in rarest of the rare cases which was also told in the case of Bachan Singh vs State of Punjab and only president has the power to grant mercy in case of death penalty by using his power to issue Mercy petition.
Whereas consulting President is the last option First if a person is convicted in Session’s Court then he should appeal to high court and then if the appeal to the supreme court also fails then he/she may go to president. These Guidelines are to be followed by the state while dealing the issues on behalf of convicts “The Ministry of Home Affairs will set out the procedures for such convicts’ appeals to the Supreme Court and requests for special leave to appeal to that court. The President of India has the authority under Article 72 of the Indian Constitution to award pardons, reprieves, respites, or remissions of penalty, as well as to suspend, remit, or reduce the sentence of anyone who has been convicted of a crime”.
If we see at the latest case of Shabnam Ali the first woman to be hanged in India. she is guilty for killing her own family members with her boyfriend and she after completing all the procedure applied for mercy petition to president but her mercy petition was rejected.
Under which section death penalty is given?
Under section 354(5) of Crpc the section says that “when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead”
What are the offences for which the death penalty is used?
The following crimes and offenses are punishable by death:
Murder with a vengeance
According to Section 302 of the Indian Penal Code, 1860, it is punishable by death. The Supreme Court of India concluded in Bachan Singh v. State of Punjab that the death sentence is lawful only when used as an unusual penalty in “the rarest of the rare” instances.
Other crimes that result in death
A person who commits murder during an armed robbery in India is sentenced to death under the Indian Penal Code. If the victim is slain, the abduction of the victim for the purpose of money is punishable by death. Organized crime involvement is punishable by death if it results in death. Committing or assisting in the commission of Sati to another person is likewise punishable by death.
Terrorism-related offenses that do not result in a death penalty
On the 9th of February 2013, Muhammad Afzal was hanged. He was executed for the attack on India’s parliament in December 2001, in which nine persons were slain by five gunmen armed with explosives. On November 21, 2012, Mohammad Ajmal Amir Qasab, the lone surviving gunman from the 2008 attack, was hung for a variety of offences, including waging war on India, murder, and terrorist acts. The use of any particular category of explosive to trigger an explosion that poses a risk of death or substantial property damage is punishable by death.
Rape that does not result in death
Under the Criminal Law Act of 2013, a person who inflicts injuries in a sexual assault that leads in death or leaves the victim in a “persistent vegetative state” may be sentenced to death.
Rapes committed by gangs are punished by death. Following the gang rape and killing of medical student Jyoti Singh Pandey in New Delhi in 2012, these modifications were made. According to the 2018 Criminal Law Ordinance, a person who is found guilty of raping a girl under the age of 12 may be sentenced to death or 20 years in jail, as well as a fine. A girl under the age of 12 who is gang raped faces the death sentence or life in prison, according to the 2018 amendment. Following the rape and murder of an eight-year-old girl, Asifa Bano, which sparked political turmoil in Jammu and Kashmir State and across the country, several modifications to criminal law were made. Please watch the following video to learn more about the evolution of capital punishment in India and who is exempt from it:
Kidnapping that does not result in death
Kidnapping that does not end in death is punishable by death under Section 364A of the Indian Penal Code, 1860. Any person who detains someone and threatens to kill or hurt him, and the kidnapper’s act results in the victim’s death, will be held accountable under this section.
Drug trafficking does not lead to death.
A person can be condemned to death if convicted of a commission or attempt to commit, abet, or criminal conspiracy to perpetrate any of a number of drug trafficking offenses, or funding of specific types and quantities of narcotic and psychotropic substances.
Military infractions that do not result in death
If committed by a member of the Army, Navy, or Air Force, assault, mutiny, or attempting to entice an airman, soldier, or sailor from their job are all punished by death.
Other offences that do not result in death
A person who is a party to a criminal conspiracy to commit a capital crime faces the death penalty. Attempts to murder persons serving life sentences are punishable by death if the victim is wounded as a result of the attempt. If a person offers false evidence with the knowledge that it will lead to the conviction and execution of an innocent person belonging to a scheduled caste or tribe for committing a capital offence on the basis of such evidence, that person will be punished with the death penalty.
Which kind of criminals are exempt from the death penalty?
A kid who is under the age of 18 at the time of committing a crime is not executed in India, according to the law.
Women Who Are Expectant
According to a 2009 amendment, a pregnant woman sentenced to death must be offered clemency.
According to the Indian Penal Code, a person who commits a crime while mentally ill, or who is unable to grasp the nature of the act or that the act is illegal, can be held accountable under the law and face the death penalty.
Article 21 of the Constitution gives all citizens the right to life and personal liberty, as well as the right to live in dignity. In the sake of law and public order, the state can take away or limit one’s right to live. However, as determined in India’s Maneka Gandhi v. Union case, this method must follow “due process.” The procedure for ending a person’s sacred life must be just, fair, and reasonable. The following is our constitutional principle:
The death sentence should only be utilized in the most extreme of circumstances.
The death penalty should be reserved for rare circumstances and should be treated as such.
The accused must be given the opportunity to be heard.
The punishment should be tailored to the circumstances of the defendant.
The High Court will have to confirm the death punishment. There is a right to appeal to the Supreme Court under Article 136 of the Constitution and Section 379 of the Criminal Procedure Code.
Under Sections 433 and 434 of the Cr.P.C., the accused may pray to the President or the Governors for pardon, commutation, or other relief from their punishment. Apart from judicial power, Articles 72 and 161 give the President and governor discretionary power to intervene in the merits of the case; however, judicial authorities have limited authority to review it, and they must ensure that the President or governor has all relevant documents and material before them. However, the governor’s power should be based on the rule of law and rational issues, not on race, religion, caste, or political ties. The accused has the right to a timely and fair trial under Articles 21 and 22 of the Constitution. Under Articles 21 and 22, the accused has no right to be tortured.
The accused has freedom of speech and expression while in custody under Articles 21 and 19 of the Constitution. The accused has the right to be represented by lawyers who have been lawfully qualified and appointed.
The Supreme Court ruled in Jagmohan v. State of Uttar Pradesh that Articles 14, 19, and 21 did not infringe the death penalty. The judge was reported to choose between the death penalty and life in prison based on the circumstances, facts, and nature of the offense that were documented throughout the trial. As a result, the decision to impose the death penalty was made in line with the legal procedure, as required by Article 21.
However, in the case of Rajendra Prasad v. State of Uttar Pradesh, the judge decided that capital punishment could not be justified unless the defendant posed a threat to society. The learned judge argues that the death penalty should be abolished, with the exception of “white collar offences.” It was also determined that the death sentence for murder awarded under I.P.C. Section 302 did not contradict the constitution’s fundamental characteristic.
In the case, Bachan Singh v. State of Punjab, the Supreme Court’s constitutional bench acknowledged Article 21 as the State’s authority to deprive a person of his life in line with an equitable, fair, and reasonable method established out by law. Furthermore, the death sentence for murder granted by Section 302 I.P.C. did not violate the Constitution’s fundamental character.
It’s a contentious subject with social and moral implications. The Supreme Court upheld Bachan Singh’s conviction, expanding the list of “alternative options” that must be considered before the death penalty is imposed. We risk executing someone who turns out to be innocent if we keep the death penalty.
 Khushi Agarwal, ‘Capital punishment in India’ (iblogpleaders,May27th 2019)<https://blog.ipleaders.in/capital-punishment-in-india> accessed on 19th February 2022.