Death Penalty in India – Perfectly Balanced

Vidit Raj Jain (HNLU Raipur)

Introduction

Death Penalty also known as Capital Punishment is the highest form of punishment under which the offender, sentenced to death is executed. The debate surrounding this has been going on for a long time now. Various rights groups, activists, among others have been fighting for striking down the Death Penalty as inhumane in character. They take the view that a chance to make amends must be given to everyone. I strongly disagree with such a view, and believe that the only way to provide some form of relaxation to the victims of heinous crimes in some circumstances boils down to hanging the offender.

The current legal situation in India is pretty much on the same lines, as can be gathered from Section 354(5) of the Code of Criminal Procedure, 1973 (‘CrPC’) which provides that “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.” The case of Bachan Singh v. State of Punjab provided the much-needed filter to the cases which can be tried for Death Penalty, by providing the doctrine of “Rarest of Rare cases.”

Evolution of Law Commission Reports

The 262^nd Report of the Law Commission of India which released in 2015 provided that the Death Penalty be removed for all offences except those related to “terrorism and waging war.” It laid down certain specific Capital Offences such as Section 121 of Indian Penal Code, 1860 (‘IPC’) which relates to waging war against the Government of India, Section 302 of IPC which relates to Murder, etc. Capital offences in other laws include Section 5 of the Defence of India Act, 1971, Section 3 of the Geneva Conventions Act, 1960, etc. Earlier in its 35^th Report, released in 1967, it advocated for retaining the Death Penalty basing its argument on the popular will of the people.

Status Quo

Section 235(2) read with Section 354(3) of CrPC provides a clear picture of the current legal standing of CrPC which marks a significant shift from what it was under the Code of Criminal Procedure, 1898 (‘Code’). The Code considered both the Death Penalty and Life Imprisonment as normal sentences but the CrPC considers the Death Penalty as an exception for the capital offences provided under IPC and requires recording the reasons for the same, when awarded and also provides the required importance to the stage at which the sentence is delivered by bifurcating the entire process into pre-conviction and pre-sentence stages. This is particularly helpful when we consider the concept of “aggravating and mitigating circumstances” which was developed in the case of Machhi Singh v. State of Punjab. According to this concept not only the circumstances affecting the case but also the circumstances surrounding the offender are to be taken into consideration while meting out a judgement. Some of the factors which were highlighted in Santa Singh vs State of Punjab are the nature of the offence, prior criminal record, age of the offender, the chances that the sentence may serve as a deterrent to crime by the offender or others, etc.

Also, Articles 72 and 161 provide powers to the President of India and the Governor respectively to suspend, remit or commute the Death Sentence. Also, the President has the power to pardon a Death Sentence.

Rarest of Rare Cases

Application of the doctrine “Rarest of Rare Cases” while considering the concept of “aggravating and mitigating circumstances” was seen in Mohinder Singh vs State of Punjab, where according to the prosecution, the appellant murdered his wife and his daughter as a result of the hostile relationship which developed between them, following the 12-year rigorous imprisonment which the accused was earlier sentenced to after being convicted for the rape of his wife and his daughter. Though the High Court awarded him a Death Sentence, it was commuted to Life Imprisonment by the Supreme Court taking into account the circumstances of not only the crime but also the criminal. Since every murder or rape case is bound to be brutal, but the circumstances surrounding it is where the difference comes up and accordingly the Death Sentence was relaxed.

Also, In Re: Yunus v. State of U.P., an appeal was filed by Rehana, wife of Yunus, alleging him of treating her in an ill-mannered way and beating her and also of the murder of three of their children. After reasonable proof, the lower court convicted him with Death Sentence. The husband alleged that he is innocent and poor which worked in his favour and the court came to the conclusion that the accused husband lacked any premeditated plan or motive for the murder and thus relaxed the Death Penalty to Life Imprisonment.

In Deepak Rai v. State of Bihar, two of the appellant-accused were awarded Death Sentences and one of them got his sentence commuted to Life Imprisonment. In this case, the two appellant-accused who were sentenced to death played a significant role in the murder of the informant’s wife and his children by burning up his whole house as retribution for the F.I.R. filed earlier by the informant for the theft of his buffalo against one of the two appellant-accused who was awarded Death Sentence and the appellant-accused threatened him that he will burn his house down if he does not withdraw the F.I.R. However, the appellant-accused who got his sentence commuted did not play a major role in the act.

“93. However, in the present case, while taking an overall view, no overt act in the commission of crime could be attributed to A3. The role played by A3 during commission of the crime as established was to hold the barrels of kerosene along with one other. While determining the gravity of the offence committed by the appellants it must be noticed that it is only A1 who had threatened the informant of burning his house in case the FIR against his family and him were not withdrawn. Further, A1 during the occurrence not only scripted and instructed the rest of the unlawful assembly but also lighted the matchstick to burn the house as well informant’s body. A2, pushed the informant to the ground and later fired at him.”

Recent Executions

Only seven executions have taken place in the last 15 years. Four of them were the perpetrators of the Nirbhaya Rape Case. One of them was a terrorist of the 26/11 attacks in Mumbai. One of them was involved in the Indian Parliament attacks of 2001 and one of them was a terrorist financer in the 1993 Bombay Bombings. This goes on to show that in practice, very rarely the Death Sentence is awarded in India.

Articles 72 and 161 provide powers to the President of India and Governor respectively to suspend, remit or commute the Death Sentence. Also, the President has the power to pardon a Death Sentence

Way Forward

Worldwide, over 100 countries have abolished Death Penalty in totality. However, a major part of such countries is in Americas and Europe. Such countries are developed, peaceful and have great ties with their neighbouring countries which help them in their development. The situation in India is drastically different as compared to such countries. Thus, blindly following the global trends isn’t the right way forward. A closer look provides a clear picture as even less than 25% of the Asian countries have abolished the Death Penalty. Especially the Indian scenario, I believe, having the highest population in the world, calls for a tailored approach, a little different from what the rest of the world follows and the “Rarest of Rare Cases” doctrine provides the best solution to it.