Interpreting the Statues of Capital Punishment in the Light of Art 21 of the Law of our Land India

I. Introduction

India is country with large numbers of crimes & criminals. The motive of Death Penalty is to punish the wrongdoer. The secondary motive is for imposing punishment on wrongdoers is to punish them and to forbid others from committing any crime. The legislation lays down different kinds of punishment in India based on the offences such as Capital Punishment.³ Capital Punishment is one of the important parts of the Indian Criminal Justice System. The term capital punishment is derived from the Latin Term “Capitalis” which means “Regarding the head”. Punishment is the coercion used to uphold the ‘law of land’ which goes about as one of the mainstays of present-day human advancement. It is the obligation of the State to rebuff the crooks in request to keep up peace in the general public. In the past, there wasn’t a particular law or request for such violations and the quantum and degree of discipline was generally subject to the King. With time present day speculations of discipline were created and intentional accommodation of our privileges furthermore, capacity to keep up lawfulness was given to state. The most ruthless or we can say the most elevated discipline granted in present time is ‘Capital Punishment’. The sentence censuring an indicted respondent to death is known as ‘Capital punishment’ and the demonstration of completing capital punishment is known as ‘Execution’ It is a process in which a person is put to death for the offences done by them. It also varies from place to place, state to state, country to country. Many Human Rights Organizations state this punishment as inhuman. In Jurisprudence, criminology and penalty, capital punishment means a sentence of death. The Constitution has given powers to the President and the Governor to suspend or pardon death sentence. In India capital punishment is awarded for the most grievous offences, depending from facts to facts. Capital punishment is given for murder, robbery with murder, waging war against the government, etc., The death sentence is given only when the court comes to an end that life imprisonment is insufficient, based on situation of the case. The word ‘Abolition of Death Penalty’ is one of the most talked about themes in United Nation (UN) where Death Penalty is thought of as an infringement of Human Rights. UN laid more accentuation on Reformative Theory of Discipline as opposed to the Deterrent Theory of Punishment.

Justice V.R. Krishna Iyer on account of Rajendra Prasad V. Province of Uttar Pradesh remarked that- The uncommon explanation must relate, not to the wrongdoing yet, to the lawbreaker. The wrongdoing might be stunning but the criminal may not merit the Death Punishment as highlighted in the case of Rajendra Prasad vs State of UP.⁴ In India choosing the case for capital punishment is in view of principle of “most uncommon of the uncommon test” which was expressed on account of Bachan Singh V. State of Punjab.⁵ Which implies that capital punishment will just be granted in most uncommon of uncommon cases only.

Further, on account of Macchi Singh and Others V. Province of Punjab,⁶ the Three Judge Bench followed the choice of Bachan Singh and expressed that just in most uncommon of uncommon situations when aggregate heart of network is so that it will expect the holders of the legal forces to incur capital punishment then it very well may be granted if:⁷

1. When the nature of murder is extremely brutal, revolting or dastardly manner so as to arouse intense.

2. In case of “Bride Burning” or “Dowry Death”.

3. When the crime is enormous in proportion.

4. When the victim of murder is-

• An innocent Child
• A Vulnerable Women or a person rendered unaided by mature epoch or illness.

The death penalty is a lawful capital punishment in India. India gives the death penalty for a serious offence. In India the death penalty is granted for generally deplorable and terrible offense. In India Article 21 of the Indian constitution is “security of life and individual freedom”. This article says, “No individual will be denied of his life or individual freedom aside from as per system built up by law”. This article says right to life is guaranteed to each resident in India. In India IPC gives capital punishment as a discipline for different offenses, for example, criminal conspiracy, murder, waging war against the government, abetment of revolt, dacoity with murder, and hostile to – fear- based oppression. The Indian Constitution has arrangement for leniency of capital discipline by the President. There are 22 death penalty is occurred in India since 1995. After the freedom a there are 52 the death penalty is taken in India In Mithu vs State of Punjab⁸ the Supreme Court struck down the IPC Section 303 which give obligatory capital punishment for the offenders. India casted a ballot against a United Nations General Get together goal requiring a preclusion on the demise penalty In November 2012, India again proceed with its stance on the death penalty by casting a ballot against the UN General Assembly draft goal demand, to boycott demise penalty. In offences for any kind of crime, where there is an option left with the court to choose between death penalty with any kind of punishment, S-367(5) of CrPC directs the court to state the reason why the court took the alternative penalty and not death penalty. But after 1955, the Parliament repealed S-367(5) and thus it altered the position of death sentence as a penalty. The death penalty was no longer the norm and the court need not to state reasons why it did not impose death penalty.

Talking about sexual crimes and capital punishment as its penalty, it is noted that there is an increase in the rate of death penalty state wise, as per the records given out by National Crime Record Bureau’s Prison Statistic, 2018. Even though there was a rise in the death penalty, there is no such evidence that sexual offences declined. There was 50% increase in rape murder cases in the year2017 and 2018. As per the records published at the end of 2018, there was about 402 death penalties which were being carried out, where Maharashtra recorded the highest no. of deaths.⁹

II. Interpretation of the concept of capital punishment with reference to the indian constitution

The idea behind a crime being backed up by a punishment is that the wrongdoer must pay for the offence committed by him. Capital punishment is a legal way of killing the wrongdoer for the crime committed by him. The concept of capital punishment or death penalty has been a most frequent topic for debate but till now no rules have come up which leads to the abolishment or retention of the same. Different countries around the world have a different prospective of how to punish the accused. In Arab, they follow retributive or severe punishment, i.e., ‘an eye for an eye.’

Talking about India, it is one of the 78^th countries which have not abolished the capital punishment. The High court have the power to grant capital punishment but that must be confirmed by the Supreme Court before execution. Death penalty is generally awarded in the rarest to the rare case. But what is the meaning of the rarest to the rare case is not defined by the Apex court. It depends upon case to case.

As per the Indian Penal Code, discretionary death penalty has been segregated into 2 parts. The first part is where the courts of the country have a wide discretionary power from choosing between a death sentence or other lesser sentence. This type of discretion cam be seen under S- 132,194,305,307 and 396. The other part is where the courts have lesser discretionary power to choose between a death sentence or a lesser sentence. This is followed under S-302 and 121 of IPC. In cases where the courts have the power to grant other sentence than death penalty, the courts can exercise its discretion in a judicious way and after examining all the facts and circumstances relating to the case.

Judicial Interpretation

The challenges relating to the interpretation and Constitutional validity of death penalty was made due to the enforcement of our Fundamental Rights guaranteed by the Constitution under Art 14,19 and 21. The interpretation of the said art began after the famous Menaka Gandhi Case. Article 21 enshrines that no person shall be deprived of his life or personal liberty except according to the procedure which is established by law. The literal meaning of the Article states that if a procedure is established by the law and if it is fair and valid, then the state can deprive a person of his life.

The Central Government has tried to maintain the death penalty as an act of deterrent, even the Supreme Court has upheld the legality of death penalty in several cases as a punishment. Starting from Jagmohan Singh V. St. of U. P, Rajendra Prasad V. St. of U.P., and then in Bachan Singh v. St. of Punjab, the court interpreted the concept of death penalty. The court held that the intent of the legislature was to provide death penalty in rarest to the rare case and should be provided only if the procedure is fair, reasonable, and just.

Rarest to the Rare

In the case of Jagmohan Sigh V. State of Uttar Pradesh, Constitutional validity of death penalty for the offence under S-302 of IPC was challenged for the first time. It was contended by the defendants that the death penalty for murder was not legally valid and was violative of the fundamental rights guaranteed under Art. 14, ART. 19, and Art. 21. It was held violative under ART 14 as there was a discretion on the court to either provide with death penalty or with life time imprisonment. But the Supreme Court held that this discretionary power which is provided by the law is unguided. It has to be check and balance all the evidences before giving such punishment.

But in the case of Budhan Chowdhary V. State of Bihar,¹⁰ It was held by the Supreme Court that ART 14 cannot be challenged in cases relating to the discretionary powers. In this case it was ART 19 that was challenged as giving a death penalty to someone merely ends all the fundamental freedoms mentioned under the ART and that guaranteed by the Constitution. The freedom to live was a basic fundamental right even though it has not been expressly mentioned in the Article. Henceforth the court cannot deprive someone of his life except when the court thinks it reasonable. The main question that arose in this case was whether death penalty mentioned as a punishment under S-302 OF IPC was reasonable or not. Justice Palekar in this case held that death punishment was not cruel punishment as it had a long legislative history in India and it was a permissible punishment as it was even recognized by the Constitution. He also stated that the legislature had no intention to remove such punishment from the laws. Justice Palekar also drew attention of the public opinion in this regard. Public opinion matters the most to the legislature and the legislature has to keep in mind the opinion of the public before framing a law. In this regard, the people of India were against the intention of removing death penalty as a punishment. There were several bills which were placed before the Legislature to oust such provision, but none were accepted.

The court was not roused by the dispute which was placed relating to ART 19. The court was also not roused by the arguments based on ART 21. The law did not provide for any procedure while making a choice between the death sentence and lifetime imprisonment. Justice Palekar stated that the only procedure which was provided under the law was that the accused had a chance of questioning the court if he was given a death penalty. And thus, it was made clear that capital punishment which was stated under S-302 OF IPC was not violative of ART 21, ART 19 of the Indian Constitution.

After the landmark judgement of Jagmohan Sigh, there was an amended which was brought in the Code of Criminal Procedure 1898 was repealed by Code of Criminal Procedre,1973. To new section were added to the code viz, S-235(2) AND S-354(3). S-235(2) provided that the accused had a chance to question the judge on the sentence which was given to him. And S-354(3) stated that the judge has to record the reason while giving a capital punishment that is, he has to state in writing with special reasons for choosing such a grave punishment.

In another case named Bachan Singh V. State of Bihar, It was contended that the decision given in Jagmohan Singh had to be reviewed again because:

a) After the Maneka Gandhi case, the basic principle was led down by the court was that each procedure should satisfy ART 14,19 AND 21. And the interpretation was not done correctly in the Jagmohan Singh’s case.

b) India was a signatory in the International covenant of civil and political rights. The covenant stated that the capital punishment had become antiquated.

c) The nature of capital punishment was needed to be reconsidered so as to be in tune with the evolving standards of decency.

Right to life, though not mentioned apparently, was the basis to enjoy the rest of the 6 rights mentioned under Clause (1) of ART 19. As death puts a stop to all those rights, the law restricting those rights had to pass the test of reasonableness which is stated under Clause (2) to Clause (6) of ART 19. It was argued that the capital punishment which defiled the dignity of an individual, was an unreasonable restriction. It was also pointed out that the nature of such a punishment is irreversible and it could be given by misjudgment and error can be made in its application, thus, death penalty under S-302 OF IPC was not constitutional.

Thus, the court had to use External aid of interpretation while interpreting the section and the word ‘death penalty’.

It was held that ART 19 was framed by the legislature for the prescribed activities and to check whether the activities like carrying on the business, right to move across the country, was within the purview and law and was protected. As no right mentioned under the Article gave freedom to an individual to murder someone, henceforth, the law relating to murder should not attract ART 19.

As the petition also pointed out about the irreversibility of the death penalty, the court with regard to this held that even though some erroneous judgement had taken place but that should not be the reason why death penalty should be abolished. Justice Sarkaria headed by saying that the error while giving a judgement could not be completely removed as it was manned by a human being. But the chances of occurrence could be reduced by increasing the safeguards and checking the evidences thoroughly before giving such a punishment.

The court said that none of the international covenants in which India was a treaty stated about complete abolishment of death penalty. Justice Sarkaria held that the covenants just stated that the court should not use death penalty as a frequent punishment, it should not be used arbitrarily. It should only be given in those offences which are serious in nature. As S-302 OF IPC provided for 2 punishment, i.e., either death penalty or life time imprisonment, the court had to weigh the evidences and the facts properly before pronouncing any judgement. S-354(3) which was introduced after the Jagmohan Case, acted as a check upon the punishment so provided. S-354(3) stated that the court passing the judgment had to state the reason and where the court gave death punishment, it had to record ‘special reason’. The court using mischief rule of interpretation, interpreted the word ‘special reason’. This word was added by the Legislature to safeguard the accused from any kind of erroneous judgement.

Justice Bhagwati, on the other hand, had a dissenting view. He stated that death penalty was still against the Constitution and the world was heading towards its abolishment. He pointed out that though Constitution did not prohibit death penalty, but it was a permissible mode of punishment.

Both Justice Sarkaria and Justice Bhagwati had an opinion that since death penalty was irreversible in nature, the question of life and death should not be left on the court to be used as per their discretion without any control by the Legislature. As Justice Sarkaria had Majority judgement, it was held that death penalty was not unconstitutional but it should not be used arbitrarily. It should be used with great caution like in cases of rape, murder, which is brutal and grave and which according to the court in ‘rarest to the rare case’.

In Macchi Singh V. State of Punjab,¹¹ The court in this case upheld the view of the majority in the Bachan Singh Case and stated that death penalty could only be given in rarest to rare case. Justice Thakkar in this case gave some guidelines which could be used for ascertaining rarest to the rare case like manner in which murder was committed, motive behind the act, anti-social crimes, and graveness of the crime so committed.

In cases of Mandatory death penalty as provided under S-303 OF IPC, the court is left with no choice or discretion but has to follow the legislature. If such offences is proved which has death penalty as the only punishment, the courts have to pass such punishment without having gone through the rarest to the rare case parameter.

III. Law commission’s report on capital punishment

The Law Commission presented its report to the Lok Sang an in 18th November 1971, as the Indian Government sent the matter for deciding it separately for revision of the general Criminal Law by recommending no to change existing law in the offences which are made punishable with death under Indian Penal Code 1860. Moreover, the Law Commission in its 42nd Report published in 1971 suggested that -

• Children below 18 years of age at the time of the commission of the crime should not be sentenced to death.
• It is not necessary to exempt women generally from the death penalty
• It is unnecessary to insert a statutory provision relating to " diminished responsibility" in the statute book.

In Rathinam Nagbhusan Patnaik Vs Union of India¹², the court held that the current law about "unforgiving and unmerited and it ought to be supplanted".

The Law Commission emphatically felt that death penalty goes about as a viable, hindrance "which is the most significant article and regardless of whether all items were to be kept aside, this item would without anyone else outfit a levelheaded reason for its maintenance".

The Law Commission of India by Justice A.P. Shah in its ongoing report of 2015 has suggested the abrogation of the death penalty. The most uncommon of uncommon standard continued in India in granting capital punishment gives off an impression of being the right way to deal with this intricate issue.

IV. Conclusion

The death penalty might be against the ideas of present-day restoration cycles of regarding the wrongdoers as it gives the lawbreakers an occasion to change yet as an issue of strategy, the demonstration of ending another's life ought to never be advocated by the State aside from in outrageous instances of critical need and self-conservation. The maintenance of the death penalty is needed in the current crumbling situations in our general public. to control request and harmony Time has not yet ready when complete cancelation of the death penalty can be firmly upheld without imperiling the federal retirement aide. Capital punishment has just been abrogated 139 nations and India additionally should join most of countries that have annulled capital punishment. Capital punishment is against the Human rights and it violets the article 21 of constitution of India. There can be different elective strategies for rebuffing the convict, for example, thorough life detainment with no chance of parole and no assurance of good conduct help which is accommodated in the jail manual. Keeping endlessly the topic of law, the subject of capital punishment needs to take into contemplations factors, for example, public suppositions on one hand and tussle with the ethical issue of the "tit for tat" guideline on the other. Likewise, it is known to us that mistake in making decisions is just altruistic and in some cases allowing somebody another opportunity resembles giving them a projectile again in light of the fact that they missed you the first run through. At long last, I might want to end with two reasonable statements which would give the perusers two troublesome parts of capital punishment to consider. The first is one by Bernard Shaw, an Irish dramatist and a prime supporter of the London School of Economics, stated that criminals do not die by the law. They tend to die by the hands of other men. Murder and capital punishment are not opposites that cancel one another but are similar that breed their kind.

Furthermore, the subsequent one is by Margaret Thatcher, Prime Minister of the UK (1979 - 1990) said that if we execute murderers, implies that we have killed a bunch of murderers. But is we fail to do so; we would allow the killing of innocent victims. I would much rather risk the former.

Perhaps there is no genuine set-in stone response to the issue of the death penalty, or possibly if there is the general public in our nation need to create to a level where the appropriate response turns out to be obvious to us. Up to that point what is required is a cautious assessment of realities and proof by the legal executive in each such touchy case to maintain a strategic distance from any chance of blunder. Likewise, India comes up short on a bona fide factual information base of the quantity of convicts being condemned to death and executed in connection with different variables which would give us a clearer image of what should be done ahead.

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