Author: Arindam Shit,
College: Alliance school of law, Alliance University
The purpose of practising criminal justice is to punish the wrongdoer and further those punishments which are in practise can be categorize into two broad categories, i.e. (i) corporal and (ii) non-corporal punishments. Also, there are many theories for the punishments some of them says punishments are to set example in the society while some tries to keep away the wrongdoer from the society to prevent further mis-happenings. Death penalty is considered to be a very common punishment in the ancient as well as in the middle ages. Although there were certain punishments given in the historic period are so brutal that the offenders wanted to die rather to tolerate such tortures. But in the current scenario, Court of law generally opts for life imprisonment rather than capital punishment. Some says death penalty is right while some says it is a wrong practise so, it became a quandary debate.
Keywords: criminal justice, punishment, death penalty, debate.
The first death penalty laws were established in Eighteenth Century B.C. in the Code of King Hammurabi of Babylon, which was further codified the death penalty for 25 different crimes. As per the historic consequences, the concept of capital punishment (death penalty) was available to every government, especially for high degree of crime. But by the early 21st century, 133 countries abolished death penalty as a punishment while only 64 countries retained this as a punishment in the eye of law. Countries in western Europe and countries in South Africa didn’t even utilize the practice of capital punishment. In the earlier stage, many jurisdictions restricted the imposition of death penalty but no government officially abolished its practice until Michigan did it for the first time in 1864 and within 20 years many countries followed the same. It was been observe that countries those who abolished the practice of capital punishment have lesser number of murders in comparison to those countries who still prescribes death sentences.
Death penalty as a punishment in India
Sentence to death or death penalty is considered as the highest degree of punishment provided to a wrongdoer as per as the penal law in India is concerned. In other words, it is the power granted to the state to take an individual’s life for the purpose. Death penalty is not that much frequent in India as its justice system based on the principle of ‘innocent until proven guilty.’ So, execution of this punishment has become a centre of debate for last few decades. Although, many international human rights organisations such as Amnesty International, European centre for human rights (ECHR) showed their protest against the practice of death penalty but, India still maintained its jurisdiction even after lot of debate and discussion. In India only the President has the authority to confer mercy in cases related to death penalty which is executed by a mercy petition filed before the President of India. The Courts of India decided that the death sentence will be applied only as an exceptional penalty in ‘rarest of rare cases’ which will be specifically define by Supreme Court as well as legislature of India. Which further executed in crimes like aggravated murder, terrorism which endangers life, rape not resulting in death, kidnapping not resulting in death, treason, military offences not resulting in death, etc.
Constitutionality of death penalty
Opinion for the death penalty varies from person to person in India, some are in the favour of it and some strictly protest the concept of death penalty. India retained the practice of death penalty and enforce it in the ‘rarest of rare cases’ and for special reasons and what are cases fall under this category answered either by the legislative authority of the country or by the Supreme Court of India. The constitution of India Guarantees the fundamental right to life for each and every citizen in India but some learned jurist believes that right to life is also not an absolute right and can be taken away by the death sentence for certain crime. While some legal experts believes that the practice of death penalty runs in counter to one’s fundamental right. Also, in the light of Article 14 which talks about ‘equality before law and equal protection of law’, stands against the capital punishments as because death sentence is anti-thesis for the right to life but also in the constitution it is no where mentioned that capital punishment is unconstitutional. However, the constitutional validity of the death penalty was challenged time and again in different cases in the court of law. In the case of Jagmohan Singh vs. State of Uttar Pradesh, the learned bench members stated that capital punishment is not violative of principle of golden triangle i.e., Article 14, 19 and 21 of the Indian constitution. And they have also declared that the choice of death sentence is exhibited as per the procedure established by law and also depends upon the nature of the case. While in another case, Rajendra Prasad vs State of UP, Justice Krishna Iyer clearly mentioned that death penalty is violative of Article 14, 19 and 21 of the Indian constitution and such punishments to be executed only in special circumstances and rarest of rare cases. But this decision was further overruled in the case of Bachan Singh vs. State of Punjab. Here, majority stated that death penalty is an alternative punishment for murder and is not irrelevant and further it is not violative of Article 14, 19 and 21 of the constitution of India. Finally, in the case of Mchhi Singh vs. State of Punjab, the Supreme Court drew the outline to define rarest of rare cases and also mentioned when death sentence should be imposed to the criminals by making five broad categories of cases.
Death penalty has been regarded as one of the controversial topics which deals with social and moral values of human beings. Jurisdiction of different Courts in India in their pronouncements relating to such heinous crimes signifies that death sentence to be given only in rarest of rare cases but to determine which will be the rarest of rare case is a debatable issue. Death penalty in India is an exceptional option and for that reason only it is still in the practice. Court of law in such circumstances checks the nature of the facts of the particular case to categorise it as rarest of rare cases but it is also a controversial point that nature and facts of the cases varies from case to case and very importantly one cannot predict those misconduct. With the changing time there will be more such cases and incidents which will further challenge the validity of the death penalty as per penal law of India. It will be a dilemmatic topic in coming days to decide whether we need to retain death penalty or abolition of the same will help us. Debate and discussion on this topic will remain as it is until we specifically make a outline to define rarest of rare cases and to which case death penalty should be given.
 “Early History of the Death Penalty” (Death Penalty Information Center) <https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty#intro> accessed March 10, 2021
 “Jagmohan Singh V State of Up: India Judgments: Law” (CaseMine) <https://www.casemine.com/search/in/Jagmohan%20Singh%20V%20State%20of%20Up> accessed March 10, 2021
 Rajendra Prasad Etc Etc vs State Of Uttar Pradesh (https://indiankanoonorg/doc/1309719/#:~:text=Rajendra%20Prasad%20Etc,Pradesh%20on%209%20February%2C%201979&text=Bench%3A%20Krishnaiyer%2C%20VR&text=(b)%20It%20is%20neither%20feasible,special%20reasons%22%20occurring%20in%20s)
 Bachan Singh Etc Etc vs State Of Punjab Etc Etc Indiankanoon (Supreme Court of India)
 Machhi Singh And Others vs State Of Punjab (Supreme Court of India)