INTRODUCTION
The death penalty continues to exist as a form of punishment in Indian criminal law, while around 112 countries[1] in the world have completely abolished capital punishments for all crimes, citing that this is violative of natural human rights. While the punishment is there for grave offences, the nature of those offences should be rare where life imprisonment is not adequate, as emphasised by the SC in various judgements. In Bachan Singh v State of Punjab (1980)[2], the validity of the death penalty was upheld, but only in the rarest of rare cases. Arbitrary usage of the death penalty is considered unconstitutional under Article 21[3] of the Indian Constitution. Capital punishments have now ceased to be a normal punishment, while allowing the punishment of death.
PROVISIONS FOR THE DEATH PENALTY IN INDIA
The death penalty in Indian criminal law is mentioned in some sections of the Bhartiya Nyaya Sanhita, 2023:
- 65(2): Punishment for the rape of a woman under 12 years of age.
- 66: Punishment for causing death or resulting in a persistent vegetative state of the victim.
- 70(2): Gang rape of a woman under the age of 18 years.
- 71: Punishment for repeat offenders convicted under S. 64, 65, 66, & 70.
- 103: Punishment for murder.
- 107: Abetment of suicide of a child or a person of unsound mind.
- 140(2): Kidnapping or abducting to murder or for ransom.
- 147: Waging, or attempting to wage war, or abetting the waging of war, against the Government of India.
- 160: Abetment of mutiny, if mutiny is committed in consequence thereof.
- 230(2): Giving or fabricating evidence with intent to procure conviction of a capital offence.
Although the Bharatiya Nyaya Sanhita, 2023, prescribes the death penalty in a variety of serious offences, the scope of such clauses brings up the issue of how they will coexist with the judicially-developed doctrine of the rarest of the rare and create the risk of legislative intent and constitutional protection becoming inconsistent.
All these sections are mentioned in BNS 2023[4], and these are socially unacceptable crimes where the courts may insist on giving the death penalty after considering relevant factors. Although the SC is determined to give this punishment in the rarest of rare cases only, there are many situations where it was given just because the offence was of a grave nature. Thus, there is a need to train judges of lower courts on how to apply the rarest of rare doctrine.
JUDICIAL INTERPRETATIONS
The Indian judiciary has frequently recognised the need to interpret the death penalty and determine the validity of the conviction under the Constitution of India. Some of the landmark judgements that helped in the interpretation of this provision are mentioned below:
Jagmohan Singh v State of Uttar Pradesh (1973):[5] The petitioner in this case argued that the death penalty, or capital punishment, in Indian law violates Article 14 (equality before law), Article 19 (protection of certain rights regarding freedom of speech, etc.), and Article 21 (right to life and personal liberty) of the Indian Constitution[6]. The court in this case held capital punishment in Indian law valid. This judgement was important because it was a very initial case to interpret the death penalty while validating its constitutionality if not given arbitrarily.
Rajendra Prasad v State of Uttar Pradesh (1979):[7] In the Jagmohan Singh v. State of Uttar Pradesh (1973) judgement, the court has upheld the validity of the death penalty, but the ambit of its punishment is also to be recognised, i.e., there was a question of when capital punishment is to be given. While not giving it merely because a crime is serious. This case emphasised that capital punishment should be given only in exceptional cases, and the circumstances of committing an offence should also be considered. Merely giving the death penalty because a crime is serious in nature is arbitrary. Here, the concept of individual justice is also emphasised.
Bachan Singh v State of Punjab (1980):[8] This is the most important judgment related to the death penalty in India because the well-known doctrine of the Rarest of Rare Cases was introduced here only. In this case, the constitutional validity of the death penalty was again challenged under Article 14 and Article 21 of the Indian Constitution. The apex court held that the death penalty is constitutional, but it should be imposed only in the “rarest of rare cases”. Life Imprisonment is the Rule; Death Penalty is the Exception.[9] The ruling has, however, been condemned as leaving the doctrine of rarest of rare inadequately defined and thus giving broad discretion to judges and raising a concern of subjectivity and inconsistency in its application.
Machhi Singh v State of Punjab (1983):[10] After the Bachan Singh judgement, there was a problem before the court of how the doctrine of the rarest of rare cases should be applied. In this judgement, the Supreme Court laid down 5 criteria to use this doctrine:
- Motive
- Manner of Crime
- Magnitude of Crime
- Anti-social nature of crime
- Personality of the victim
This judgment provided the practical guidelines to apply the rarest of rare doctrine and determined that this doctrine should be applied where the alternative option of life imprisonment is foreclosed. Even though this ruling tried to formulate a standard for applying the doctrine, these criteria are subjective in nature, and they tend to lead to conflict in their application in various cases.
Santosh Kumar Bariyar v State of Maharashtra (2009):[11] The appeal was filed before the apex court because the lower court had given the death penalty in the case of kidnapping and murder. The court found that the courts are only considering the brutality of the crime while other criteria are being ignored. The courts should also see the criminal background and potential for reformation while refraining from giving punishment based on public outrage. This case is important because here the court said to emphasise more the background of the accused and the reasons for committing the crime rather than the mere gravity of an offence. The court also clarified the application of the rarest of rare cases doctrine and emphasised the importance of proper sentencing analysis. Such a ruling shows a greater systemic problem, i.e., the fact that sentencing in death penalty cases has often failed to be consistent, thus contradicting the principle of equality before law provided by Article 14.
Manoj v State of Madhya Pradesh (2022):[12] The accused in this case was sentenced to the death penalty for murder. The Supreme Court, while hearing the case, noticed that trial courts are imposing death sentences without properly examining the personal circumstances of the accused. The SC also told the courts to consider the following factors while sentencing:
- Socio-economic background of the accused.
- Family and childhood history.
- Mental and psychological conditions.
- Possibility of rehabilitation.
Without considering these factors, the punishment can be arbitrary and unconstitutional. While the SC in this case said that the sentencing should be individualised, it also emphasised the need for a detailed and evidence-based sentencing inquiry before imposing the death penalty. It will help in the proper consideration of mitigating factors and the possibility of reform. The ruling demonstrates a change in the judicial trend to move towards the reformative type of justice, indicating the trend towards not just retributive aspects of capital sentencing.
LEGAL IMPACT
The above judicial events indicate that the jurisprudence of the death penalty in India has not only moved beyond mere constitutional validation but also evolved into a more refined and restrictive framework of the application of the death penalty in India. The interpretations of the death penalty by the apex court were necessary because, before the interpretations, the death penalty was normally given, but after judgments like Rajendra Prasad and Bachan Singh, the court recognised the need for the rarest of rare doctrine. The doctrine of the rarest of rare cases has not directly curbed the death penalty, but it has stopped the normalisation of the death penalty.
Nevertheless, even with these advances, the fact that the criminal justice system lacks a standardised sentencing policy still leads to the arbitrary application of the death penalty, which raises serious concerns regarding arbitrariness and fairness of the capital sentencing. The judgments in the Santosh Kumar case and the Manoj case emphasised the need for proper consideration of the required conditions and essential evidence before giving capital punishment.
CONCLUSION
Capital punishment in India was considered to be a normal punishment provided in law, but interpretation by the judiciary showed that there are some rights of the accused also, and they should not be sentenced to the death penalty merely because they have committed a serious offence. The court determined the need for the rarest of rare doctrine and interpreted it whenever needed, whether it was in the case of Machhi Singh, where the criteria were laid down, or in the case of Santosh Kumar Bariyar, where the need for potential reformation was also emphasised. From the Manoj v State of Madhya Pradesh (2022) case, it can be inferred that, even after around 45+ years after Bachan Singh, there is a need for providing guidelines to trial courts on how the death penalty should be imposed and the factors to be considered before sentencing.
Hence, it is urgently needed to create coherent and extensive guidelines on sentencing to implement the death penalty in a uniform, transparent, and consistent manner with the constitutional ideals. While some other countries have completely abolished capital punishment in their laws, some countries, like India, still carry it in their criminal laws. Many organisations, like the United Nations, condemn the use of these punishments and recommend completely abolishing them. In this regard, the continued retention of the death penalty in India is still a constitutional debate and a moral issue, especially with the current tendency of the new dimensions of human rights and dignity.
Author’s Name: Shivam Parmar (Dharmashastra National Law University, Jabalpur)
References:
[1] Amnesty International “DEATH SENTENCES AND EXECUTIONS 2022” (ACT 50/6548/2023), 2023, (THE USE OF THE DEATH PENALTY IN 2022, para 6)
[2] Bachan Singh v. State of Punjab, (1980) 2 SCC 684
[3] The Constitution of India, 1950, Art. 21
[4] Bhartiya Nyaya Sanhita, 2023, S. 65(2), S. 66, S. 70(2), S. 71, S. 103, S. 107, S. 140(2), S. 147, S. 160, S. 230(2)
[5] Jagmohan v. State of Uttar Pradesh, (1973) 1 SCC 20
[6] The Constitution of India, 1950, Art. 14, 19, 21
[7] Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646
[8] Bachan Singh v. State of Punjab, (1980) 2 SCC 684
[9] Bachan Singh v. State of Punjab, (1960) 2 SCC 684, Para. 209
[10] Machhi Singh v. State of Punjab, (1983) 3 SCC 470
[11] Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498
[12] Manoj v. State of Madhya Pradesh, 2022 INSC 606
