Capital Punishment is a legal punishment which is more commonly known as the death penalty. Although 142 Countries have abolished the death penalty in law or practice, India still retains it. In India, there are a total of 40 offences punishable by the Capital Punishment of which 14 are under the Indian Penal Code,1860 ( Act No. 45 of 1860 ) and the remaining 26 are Non-IPC related crimes.
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Evolution of Capital Punishment
In the Code of Criminal Procedure,1898 ( CrPC ) the death was the default punishment for murder and required the concerned judges to give special reasons in their judgements if they wished to grant Life imprisonment to the accused instead. This was changed in 1955 with the amendment in the CrPC which removed the need of giving reasoning to not impose the death penalty on the convict. This was again changed in 1973 with yet another amendment this time stating life imprisonment as the new norm and the death penalty to be justified in exceptional cases.
In the 1980 case of Bachan Singh Vs State of Punjab ( AIR 1980 SC 898 ), The Supreme Court ruled that the death penalty should only be used in the “rarest of rare” cases. This rarest of the rare case was never defined so its up to the discretion of a judge and the facts of the cases to decide what cases qualify for the death penalty.
Constitutional Validity
There is no way to talk about Capital Punishment without discussing its Constitutional Validity as it’s a question still largely debated not only in India but all over the World.
In India, the Constitutional Validity has been questioned throughout history at numerous times, some of the significant ones worth mentioning start during the drafting of the Constitution between 1947 and 1949. The concern of abolishing the death penalty was raised by many members of the committee as we had retained the Indian Penal Code of 1860 yet no such provisions were incorporated in the Constitution.
In Jagmohan Singh Vs State Of Uttar Pradesh [ AIR 947, 1973 SCR (2) 541 ], It was argued that the Capital Punishment violated the right to life and equality guaranteed by Article 21 of the Indian Constitution. Moreover, the courts having unguided discretion ( this case was before the 1973 amendment in the CrPC which added the reasoning clause for the death penalty ) to impose the death penalty violates the equal protection clause embodied in Article 14 of the Indian Constitution.
However, the Supreme Court of India refused to accept the arguments put forward by the appellant and held the death penalty valid. The deprivation of life is Constitutionally permissible as it is done after a detailed recording and evaluation of the relevant facts and mitigating circumstances i.e. with the due process established by law.
Execution Of the Capital Punishment
The principle of, ‘Life imprisonment is the rule and the death sentence is the exception’ is followed whenever a heinous crime is put forward by a court.
The Journey starts when a Trial Court after the completion of the case as prescribed in the Code of Criminal Procedure,1973 ( Act No. 2 of 1974 ), announces the judgement according to Section 235 ( Judgement of acquittal or conviction ). It ought to document “Special reasons” justifying the sentence awarded by way of Section 354(3) of the CrPC.
After the decision has been finalised by the Court of Sessions, for the death sentence to stay legally valid it must be held valid by a High Court. The High Court with the powers given to it by Section 368 of the CrPC may verify the death sentence awarded or pass a different sentence as it sees fit or annul the conviction or convict the offenders for any offence that the Court of Sessions would have convicted them or order a new trial on the identical or amended charges or acquit the accused.
The accused can plead acquittal or reduction of sentence awarded by the Court of Session.
After the decision is verified by the High Court an appeal by Special Leave Petition (SLP) under Article 136 of the Indian Constitution can be filed. Exercising its power according to Article 136, the Supreme Court in cases where the death sentence has been awarded by the lower courts can not dismiss the SLP without giving reasons. [ Established under, Babasaheb Maruti Kamble V. State of Maharashtra, November 2018 ].
A petition seeking a review for the judgement can be filed under Article 137 of the Constitution before the Supreme Court within thirty days of the day of judgement. Review petitions for the death sentence will be heard in open court, but with a time restriction of 30 minutes for oral hearing, and the procedure shall be just and fair whilst being heard by a bench of 3 judges. [ Established by the case of Mohd. Arif and Ashfaq V. The Registrar, Supreme Court of India and Others, September 2014 ].
The Supreme Court may allow a curative petition to reconsider its judgement on the respective case. The curative petition will be reconsidered by the 3 senior-most judges of the Supreme Court only if the same judges bench as in the review petition are not available.
In the end, under Articles 72 and 161 of the Indian Constitution, the President of India and The Governor have the powers to grant pardons or to suspend, remit or commute sentences awarded in certain cases. Considering the case, either the President or the Governor can grant a pardon.
Accordingly, In cases where the death sentence is awarded, Form No. 42 in the Second Schedule of the CrPC, 1973 contains the form of the death warrant or “ Black Warrant “. It is addressed to the superintendent of the respective prison who is supposed to return the warrant to the court after the death sentence has been executed.
Protection against Capital Punishment
A minor under the age of 18 years at the time of the commission of the crime is exempted.
A pregnant woman is shown clemency.
Any Intellectually disabled person.
Mercy is granted by the President or Governor.
Commutation of sentence by the appropriate Government.
Once executed, there is no going back from this punishment in case of an error in judgement. This is primarily the reason for providing multiple safeguards at various levels when the death penalty is imposed and these safeguards cause inordinate delay in providing justice.
Problems with the execution of Capital Punishment
Since the start of the millennium over 2500 the death penalties have been awarded by courts all over India but so far only 8 of those have been executed.
The reasons for the failure in the execution are hidden all over the sentences given above which I will now highlight here.
The main reason for this failure has to be the long processes of our judicial system which is heavily exploited by the convicts in different manners and was witnessed by all of India in the Nirbhaya Case.
Commutation of the death sentence is also another reason as of the 2493 cases which were awarded the death sentences, only 404 the death sentences remain standing because the remaining cases were commuted. The Commutation of a death sentence is done based on provisions under IPC and CrPC by the appropriate government. This is covered under Section 54 of the IPC and Sections 432, 433, and 433A of the CrPC. Mercy petition which is also another reason has been discussed above.
The amount of other running cases ( 44million pending cases as of January 2022 ) and the ample amount of time given by courts between each petition and the transfer of a case from one court to the other also are responsible for the failure.
There’s a quote stating “ Being too nice can be a dangerous thing sometimes”, but in the case of our Indian Judiciary that sometimes is always. It is based on several principles like giving second chances, not punishing the innocent even if it means setting 100 offenders free, equal, and fair trial and many more to count. To follow all of them our system has safeguards to ensure the last possible legal option is open to a convict before he is convicted. But in India just like everything else, it falls through the crack.
Conclusion
Capital Punishment in India even though awarded at a significant rate ( about 131 per year starting from the year 2000 ) is still not executed because our system believes more in the reformative theory than the deterrent theory, but even when it sides with the deterrent theory the inordinate delay caused by the multiple safeguards to ensure a proper trial ends up silencing the statement that was to be made with this punishment. Reforms are to be made while keeping the trials as fair as possible while executing the punishment as soon as the offender is first convicted.
FOOTNOTES
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