Constitutional Validity Of Capital Punishment

Key Points

• Capital punishment is to be given in the ‘rarest of rare’ cases.
• The Law Commission in its 262nd report, 2015 has suggested to abolish capital punishment.
• Indian legislation and Courts have observed that capital punishment is constitutionally valid.

Introduction

The punishment for murder, as provided in the Code of Criminal Procedure 1898, was death penalty. At that time, the judges had to write down reasons if they ordered life imprisonment instead. When the CrPC got amended in 1955, the requirement for writing reasons for not providing death penalty was removed. Further, when the CrPC got amended in 1973, life imprisonment was made the norm while death penalty was to be provided only in exceptional cases. And till now, this is in force. Although we see that the usage of death penalty is decreasing, but the presence of the capital punishment itself proves to be a contradiction to the Constitution of India.

There have been diverse opinions regarding the death penalty in India. While some favor in the retention of the punishment, others are of the opinion that it violates the constitutional rights and hence must be abolished. So, should death penalty be abolished in India?

Arguments in favor of retention of capital punishment

• In today’s scenario, capital punishment is awarded only in ‘rarest of the rare’ cases, for the most heinous crimes. So, it won’t be unfair if a few people get paid for what they did. An accused gets capital punishment for crimes such as murder. He gave up his right to life when he took the life of another person. Hence, justice can only be served by the lawful execution of those criminals.
• It will set an example for the other people who would be thinking of indulging in such crimes. They will think twice before doing anything as such thing. Justice demands that courts should impose punishments that fit the crime so that the courts would reflect the public abhorrence of the crime. So, the policy of deterrence has been put forth most of the time to justify capital punishment.
• Execution prevents re-offending. A person, who commits a crime once, has high chances of committing it once again. Hence, if the offender of such a heinous crime has been executed, it clears the danger from society and the fear of its re-occurrence.
• Peaceful lives: Death penalty is being considered as a just punishment for crimes committed against the rights to life, freedom and safety of victims. Individuals have the right to live peacefully and be free from harm. However, crimes like murder, rape and assault that are committed by perpetrators have no regard for life and property of others. Only such punishments can help remove the identified offenders from the society.

Laws that prove to be violative

The abolitionists argue that capital punishment violates the fundamental right to life of a person which is guaranteed by the Constitution of India. Several legal luminaries also argue that the very fact that the death penalty is retained in Indian criminal statutes is contradictory to one’s right to life. Therefore, it can be said that even right to life is not an absolute right.

Article 21 of the Indian Constitution states that a person can be deprived of his life or personal liberty by following the procedure established by valid law. It was then established that the state, for its punitive purpose, can deprive a person of his life or personal liberty. Here, the contention arises that the procedure used for depriving the individual of his right to life or liberty must be reasonable, just and fair. However, it is nowhere mentioned what procedures can be considered as fair, just and reasonable. So, it has been argued that due to lack of provisions, the life of a convicted person remains in the hands of the court. This lack of an established framework structure proves that the procedure of law is not fair or just. And thus, it is a clear violation of Article 21 of the Indian Constitution. Therefore, it should be abolished.

Death penalty is strongly opposed as it is considered to be violative of the fundamental human rights. The human rights state that every human being has a right to life and a right not to be subjected to cruel, inhuman or degrading punishments. It has got recognition from which the Universal Declaration of Human Rights. It opposes capital punishment stating that the deliberate killing of a prisoner for punishing and deterrence is a purpose which can be easily fulfilled by other ways. No matter the gravity of the crime of the convict, this cruelty cannot be justified. Considering that life is a human right, the provision of death penalty is nothing but an abuse of our most fundamental human right. The cruelty of death penalty diminishes the humanity of everyone it touches.

The Law Commission Reports

The Law Commission has provided three reports on capital punishment till date. In the first report of the Law Commission on the capital punishment, it had suggested to retain the punishment. This was the 35th report, released in 1967. The general elements of cultural and social life were taken into consideration and it was observed that the subjective discretion of the court while deciding the matters was satisfactory and was well within the purview of judicial principles. The detailed apprehensions relating to the arbitrary use of the court’s discretion while awarding capital punishment was not discussed. Further, the report suggested that statutory safeguards like mercy, power of appeal and review must ensure that the chances of erroneous judgements are minimal. The conclusions arrived by the Commission are can be seen in various landmark judgments including Bachan Singh v. State of Punjab, May 1980.

In its 187th report, the Law Commission dealt with the matter on capital punishment under the theme of “Mode of Execution of Death Sentence and Incidental Matters” and therefore, no views were presented on the abolishment of capital punishment.

In its 262nd report, 2015, the Law Commission extensively studied various aspects of death penalty such as its role of deterrence, uniform applicability of guidelines, victim justice and arrived at the conclusion that the capital punishment should be abolished except for in the matters of terrorism. After doing its extensive research, the Commission observed that capital punishment does not serve the penological goal of deterrence any more than life imprisonment and it fails to achieve any constitutionally validity. The Law Commission also held that the restorative and rehabilitative aspects of justice have lost their sight while focusing on the death penalty as the ultimate measure to provide justice to victims. It proves to be violative of the constitutional principles and principle of equality which makes the whole process arbitrary and subjective to whims of the judges. Systematic impediments such as lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid makes the administration of the death penalty vulnerable to errors. Thus, the death penalty must be abolished.

Relevant case laws

Various cases have challenged the constitutional validity of the death penalty from time to time.

In Jagmohan Singh vs. State of Uttar Pradesh, a unanimous verdict by the five-judge bench of the Supreme Court upheld the constitutional validity of death penalty. In this case, the constitutional validity of capital punishment was challenged stating that it violated Article 19 and 21 as any procedure was not prescribed in it. The bench stated that capital punishment did not violate Articles 14, 19 and 21. It was contended that the procedure prescribed under the Cr. P.C. was confined only to find who is guilty and not for awarding any death sentence. The Court observed that the decision of capital punishment is given in accordance with the procedure established by law. It was noted that on the basis of circumstances, facts and nature of crime brought on record during the trial, and the decision is up to the judge to make a choice between capital sentence and imprisonment of life.

In Rajendra Prasad vs. State of Uttar Pradesh, Justice Krishna Iyer empathetically stressed on the fact that death penalty is violative of Articles 14, 19 and 21. He stated that in order to give capital punishment, two requisites must be necessarily be looked upon.

• For imposing death penalty in any case, the special reason for the decision must be recorded.
• Capital punishment must only be awarded in extraordinary circumstances.

In Bachan Singh vs. State of Punjab, the five-judge bench of the Supreme Court overruled the previous judgement in Rajendra Prasad with a majority of 4 to 1, with Justice Bhagwati dissenting. It expressed that death penalty cannot be considered unreasonable as an alternative punishment for murder. Therefore, it does not violate Articles 14, 19 and 21 of the Constitution of India. It observed that the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order”. Further, it also enunciated that capital punishment should only be awarded in the ‘rarest of rare cases’. The dissenting judgement of Bhagwati J. read that “death penalty does not only violate Articles 14 and 21, but it is also undesirable from several points of view.”

In Machhi Singh vs. State of Punjab, the Supreme Court laid down several broad guidelines of the circumstances when capital punishment can be imposed. Justice Thakkar, speaking for the Court, observed five kinds of cases which can be considered as rarest of the rare case and deserve extreme penalty such as capital punishment. They are:

• The manner of commission of murder: If the murder committed is in an extremely brutal manner such as it arises intense and extreme indignation in the community.
• Bad motive: If the murder committed is done with a motive which depicts depravity and meanness.
• Causing social abomination: Murdering a scheduled caste or a minority community person for causes such as social wrath, bride burning in cases of dowry, or for remarriage.
• Immensity of crime: If the crime committed is in a large proportion, particularly targeting the members of a family, a particular caste, community or locality.
• The victim’s personality.

Again, in Deena vs. Union of India the constitutional validity of Section 354(5) I.P.C. was challenged on the basis that this Section was barbarous, inhuman and degrading and thus violated Article 21. The court, in its judgement, held that Section 354(5) of the I.P.C., where hanging as a punishment of execution was prescribed, was fair, just and reasonable procedure, well within the meaning of Article 21. Therefore, it is constitutional.

In Sher Singh vs. State of Punjab, Chief Justice Chandrachud held that, as per the decision made in Bachan Singh, capital punishment is constitutionally valid and permissible. This must be accepted as the law of the land.

Similarly, in Triveniben vs. State of Gujarat, the Supreme Court clearly stated that, the constitution explicitly does not prohibit death penalty anywhere.

Conclusion

The death penalty has been criticized for far too long without having any understanding of its nuances. It has been criticized majorly on the basis of arbitrariness, irreversibility and human rights. However, the capital punishment passes muster on all accounts. In India, capital punishment has not only been considered constitutionally valid, but it has been backed in several judgements.

To ban capital punishment in a country like India, the attitude of public towards it must change. The public should be of the view that justice can be done even without officially assassinating people. Just some laws and legislations will not lead to any change unless the vast majority of Indians believe that capital punishment is not necessary to achieve justice. If that is done, it will only lead to more alienation from the state and greater skepticism for the law.