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Death sentence has been elucidated as lawful imposition of death as penalty for a criminal offence. It’s been described as an extreme and irreversible form of punishment since it takes away life and any mistake while awarding the same cannot be reversed. It’s usually awarded in cases where the nature of offence is such that it cannot be abated without a death penalty. The offences for which death penalty is awarded are described as ‘heinous’; the term has not been accorded a definite explanation within the Indian Penal Code, however S.2(33) of the Juvenile Justice Act, 2015 elucidates ‘heinous offences’ as offences for which the minimum punishment under the IPC, 1860 or any other law for the time being in force is imprisonment for 7 years or more.
Another explanation for heinous crimes is that their nature is such that it gives a jolt to the society’s conscience, it creates a repugnance within the minds of people and are often referred to as ‘rarest of rare’.
Death sentence is the maximum punishment awarded under the Indian penal law. It is a process wherein the state exercises its power to take an individual’s life. The practice of death sentence has been prevalent within the India since its inception; the Indian epics, ‘Mahabharata’ and ‘Ramayana’ contain references to death by amputation for offenders; ancient law giver Manu places emphasis on death penalty to prevent anarchy in the state. On the other hand, during the rule of the Great Mughals, the death penalty was applied in the most brutal form, and in British India, in most cases, the death sentence was carried out for breaking the law.
The post-independence era brough about a transformation in the Indian judiciary, thereby changing the process of awarding of death sentences. The Indian Penal Code along with other relevant codes enshrines provisions in conformity with the Indian constitution pertaining to death sentence. Some of these offences are:
- 120B IPC Party to criminal conspiracy to commit capital offence;
- 121 IPC Waging/attempt/abetting in waging of war against the Indian government;
- 132 IPC Abetting/engaging in mutiny in armed forces;
- 194 IPC Giving/fabricating false evidence with intent to procure conviction for capital offence;
- 302 & 303 IPC Murder;
- 305 IPC Abetting suicide of minor;
- 364A IPC Kidnapping for ransom, etc.;
- 376A, Criminal Law Amendment Act, 2013 (punishment for causing death or resulting in persistent vegetative state of victim);
- 396 IPC Dacoity with murder;
- S.4 Prevention of sati act, aiding/abetting in act of sati;
- 31A of NDPS Act Drug Trafficking in cases of repeat offences;
- The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is an act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes and to provide for special courts for the trial of such offences.
Art.21 of the Indian constitution enshrines ‘right to life’ and the same has been utilized by activists & social groups who are calling for abolition of death as capital punishment, a practice which has been trending globally. Abolitionists have argued that increasing rate of crimes are an indication of the fact that death sentences are futile in instilling fear in the minds of offenders. However, India has maintained its stand in favor of death sentence, unfettered by the global trend against it; the Criminal Law (Amendment) Bill, 2018 is an indication of the same wherein maximum punishment has been increased to death sentence.
Despite the increased severity of punishment for heinous offences by imposition of death sentence, it cannot be carried out without the consent of the high court, further an appeal against such an order can also be filed in the supreme court the same has been enshrined in the Code of Criminal Procedure, 1973. In addition, the constitution of India confers the power of pardon, reprieve, reprieve or discharge on the President of India under Article 72 and on the Governor of a State under Article 161. Landmark judgements have time and again challenged the constitutionality and sometimes even reinforced the need for death sentence within the Indian criminal system.
In Jagmohan Singh v. State of U.P, which was the first case questioning the constitutional validity of death sentence, the appellant’s counsel stated that execution of death penalty was violative of fundamental rights enshrined under Art.19, Art.14 and the right to life under Art.21; however, the five-judge bench upheld that deprivation of life was permitted if performed by due process of law.
The case of Bachan Singh v. State of Punjab gave rise to a major development in the matter of death sentence with the introduction of ‘rarest of rare’ principle wherein the five-judge bench upheld the validity of death sentence and stated that it was not violative of Articles 14,19 and 21.
In Machi Singh v. State of Punjab, J. Thakkar further elaborated upon the ‘rarest of rare’ principle by giving 5 points to ponder upon, i.e., manner of commission of crime, motive, nature of crime, magnitude of crime and victim’s personality.
Displaying a deviation from all the previous cases wherein death sentence was upheld; in Mithu Singh v. State of Punjab, the court upheld that S.303 of IPC was violative of Articles 14 and 21 of the Indian constitution and hence unconstitutional.
To sum up, death penalty is constitutional in India, despite several attempts being made to abolish it. Further, the matter of death sentence has to also take into consideration some other factors such as public sentiments and the moral concept of ‘eye for an eye’. In addition, every offence cannot be punished with death sentence, the facts associated with it needs to be examined too and that’s the rationale utilized by the judiciary while utilizing the principle of ‘rarest of rare’, which in turn has led to the evolution of the concept of ‘heinous crimes’ to define the principle cited while finalizing an award in the form of death sentence.
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