INTRODUCTION
The death penalty is the highest form of punishment under Indian criminal law. India retains that it applies only in the “rarest of rare cases” (Bachan Singh v State of Punjab). The death penalty, also known as capital punishment, is the harshest form of punishment available under any criminal law in existence anywhere in the world. The Growing debate on its compatibility with modern constitutional values and human rights. The death penalty is perhaps the most polarising issue in the Indian criminal justice system. From the Nirbhaya case to terror attacks, high-profile heinous crimes often evoke a public demand for “hanging till death.”
India is one of the 78 retentionist countries that have retained the death penalty because it will be awarded only in the “rarest of rare cases” and for ‘special reasons’. Though what constitutes a ‘rarest of rare case’ or special reasons has not been answered either by the legislature or by the Supreme Court.
WHY IT SHOULD BE ABOLISHED IN INDIA?
The Risk of Executing Innocents: Studies have shown that Indian trial courts have high error rates, with high courts overturning many death sentences. Between January 1, 2000 and June 31, 2015, the Supreme Court admitted to wrongly sentencing 60 people to death, raising fears of “judicial murders”.
Violation of Human Rights: The death penalty violates the fundamental Right to life guaranteed under Article 21 of the Indian Constitution. Many believe that if the state forbids citizens from killing, it should not have the authority to do so itself.
Lack of Proven Deterrence: Poor prisoners on legal aid won’t get a good lawyer to defend them. Hence, the death penalty unfairly targets the poor and marginalised. There is no conclusive evidence that the death penalty deters crime more effectively than life imprisonment.
Socio-Economic and Caste Bias: Data suggests that the death penalty disproportionately affects the marginalised, including delist, OBCs, and religious minorities, who lack access to top-tier legal representation.
CONSTITUTIONAL PERSPECTIVE
Deena v Union of India: The court held that section 354(5) of the Criminal Procedure Code (CrPC), 1973, prescribed hanging as a mode of execution as a fair, just and reasonable procedure within the meaning of Art- 21 and hence is Constitutional.[1] According to Section 302 of the Indian Penal Code, 1860, an individual who commits murder shall be given the death penalty.[2]
Bachan Singh v State of Punjab: Supreme Court upheld the constitutional validity of the sentence and laid down that the death penalty must be imposed only in the “rarest of rare cases.”[3]
Machhi Singh v State of Punjab: This case provided exceptions to the rarest of rare rule death penalty can be invoked when Murder committed in an extremely brutal manner, to arouse extreme indignation of the community. Murder is committed by a motive that shows total depravity and meanness. The crime is enormous in proportion.[4]
The death sentence directly hits Articles 21, 14, 15, 16, and 19 of the Indian Constitution.[5]
JUDICIAL PERSPECTIVE
The risk of executing innocent people exists in any justice system. There have been and always will be cases of executions of innocent people. No matter how developed a justice system is, it will always remain susceptible to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable. The arbitrary application of the death penalty can never be ruled out. This penalty is used in a disproportional manner against the poor, minorities and members of racial, ethnic, political and religious groups. The death penalty violates the right to life, which happens to be the most basic of all human rights.
RISK OF WRONGFUL CONVICTION
Irreversibility: once a death sentence is carried out, it cannot be undone.
Inhumanity & Human Rights: Many consider the death penalty a violation of the fundamental right to life, as recognised by international human rights bodies. Lack of deterrence research indicates that the death penalty is no more effective at reducing crime than life imprisonment. Potential critics of rehabilitation believe the justice system should focus on reformation rather than revenge.
Deterrence: Some argue that the death penalty acts as a necessary deterrent against heinous crimes, such as terror attacks or heinous crimes against women.
INTERNATIONAL PERSPECTIVE
Globally, there is a clear movement towards abolition. Many countries have either abolished the death penalty in law or ceased its practice. Even though the death penalty was still in practice in the majority of countries in the early 1960s, the drafters of the International Covenant on Civil and Political Rights (ICCPR) had already begun to have it abolished in international law.[6]
Although Article 6 of the ICCPR allows for the use of the death penalty in restricted circumstances, it also states that nothing in this Article shall be invoked to delay or hinder any state party to the present covenant from abolishing capital punishment.[7]
The UN Economic and Social Council enacted Safeguards in 1984. The ICCPR Second Optional Protocol aims to abolish the death penalty. The general assembly urged states to observe international standards that protect the rights of persons facing the death sentence in a series of resolutions enacted in 2007, 2008, 2010, 2012, 2014, 2016, & 2018, and gradually reduce the number.
LAW COMMISSION RECOMMENDATION
The 20th Law Commission of India (2015) recommended the abolition of the death penalty for all crimes except terrorism-related offences and waging war. The Law Commission recommended “swift” abolition of the death penalty except in terror-related cases, as it does not serve the penological goal of deterrence any more than life imprisonment.[8]
The recommendation by the nine-member panel was, however, not unanimous, with one full-time member and two government representatives dissenting and supporting retention of capital punishment. In its last report, the 20th Law Commission said there is a need to debate as to how to bring about the “abolition of the death penalty in all respects in the very near future, soonest.” As a watershed moment in the fight against the death penalty in India, the Law Commission in its 262nd report has recommended the abolition of the death sentence for all offences except “terrorism related offences”. The earlier recommended retention of capital punishment in its 35th report published in 1967.[9]
ALTERNATIVE PUNISHMENT
The primary alternatives to the penalty are life imprisonment, often without the possibility of parole or remission, and long-term imprisonment for a fixed or indeterminate period.
Life imprisonment without Parole: The offender remains in prison for their entire natural life, ensuring complete public safety.
Life imprisonment with stringent Conditions: Offender is incarcerated for life, often in high-security facilities with minimal human interaction.
Indeterminate Imprisonment: A sentence with a minimum term, after which the inmate is evaluated for release eligibility.
CONCLUSION
The debate surrounding the death penalty in India is not merely about punishment, but about the values of a legal system and its approach to justice. As discussions continue, focus often shifts toward the importance of improving investigative processes, ensuring speedy trials, and providing robust legal aid to ensure that justice is accessible to all, regardless of socio-economic status. India should abolish the death penalty and make alternative punishments without death because it violates the Indian Constitution.
Author: Subhajit Khan (Calcutta University)
References:
[1] Deena Dayal Etc. v Union of India and Others 1983 AIR 1155
[2] Section 302 of the Indian Penal Code 1860
[3] Bachan Singh v State of Punjab 1980 3 SCC24
[4] Machhi Singh and Ors v State of Punjab 1983 AIR 957
[5] Constitution of India 1950, arts14, 15, 16, 19, and 21
[6] International Covenant on Civil and Political Rights
[7] Ibid art 6
[8] The Death Penalty Abolition Bill 2019
[9] The 20th law commission 262nd report and retention of capital punishment 35th report published in 1967
