This article is written by Akanksha Yadav, a student of Institute of  Law, Nirma University, Ahmedabad

India bags the title of being the largest democracy in the world. But this democratic country is also becoming the hub of the increasing crime rate. There are instances of heart-shaking cases of rapes, murders, acid attacks, and some of them are brutal and horrifying enough to shake the humanity.

In such a scenario, it is the ‘law’ on which the faith of people relies. The concept of ‘punishment’ then comes into play. People look forward to the judiciary to interpret the laws of the land and assure that the wrongdoers don’t escape from the punishment they deserve.

Extreme situations demand extreme measures. This statement holds relevance here as well. And for brutal offences, capital punishment or the death penalty is considered to be one of the most severe punishments granted by the Indian Courts.

The belief on which its concept relies is that such stringent measures will act as deterrence for the people and this will reduce the number of crimes. Also, the one who is the wrongdoer should proportionately receive harsher punishments for his cruel acts.

But, what is this concept of punishment and how is it relevant here?

In every country, there are a certain set of rules and regulations which need to be followed. One cannot just do anything and everything without any restraints. Hence, to ensure uniformity and control of behaviours, the ‘law of the land’ is made.

And ‘punishment’ is the means to enforce these laws. Suppose you are preached to not talk in the class by the first teacher and the second teacher threatens you that your marks would be deducted in case you disobey and continue talking. In which situation are you more likely to remain quiet?

It is the second. Knowing the benefits of discipline and that you should stay quiet in class is no doubt a good measure but the punishment or the consequence that you might face on doing something is bound to affect your behaviour. This is how humans are. And that’s why the principle of punishment evolved.

And since everything has a limit, thus the ‘capital punishment’ evolved with time. It is also referred to as the ‘death penalty’ in many countries. It means the legal killing of a person who has committed an offence. The person has done an action against the law and is now sanctioned by the Court and the government to be killed.

In the words of Roscoe Pound, ‘law is the body of principles recognised or enforced by public and regular tribunals in the administration of justice.’

We live in a society. There are different types of people, different mentalities, and different approaches to react to a situation. Law is dynamic, it grows with the society. The element of a crime is inseparable from society. If there is a law, there is bound to be a section of society that will either have a different opinion on it or will try to violate it. And so the code of conduct needs to be maintained. The idea of capital punishment was also framed on similar lines. Not only in the present time India, but its evolution is also a part of the whole world for ages.

Global background of the death penalty:

The purpose of punishment is interpreted differently by different countries. The question of whether the death penalty should be abolished or is it a way to ensure lower crime rates is still a subject of debate all over the world.

In the United Nations Organization, 55 nations out of 196 follow the concept of the death penalty whereas there are 105/141 nations that  have declared to abolish practicing this form of punishment completely.

There are many countries like the United Kingdom and Canada who find this form of practice as too severe or not an ethical means of deterrence for society.

Whereas, there exists another set of countries like India and the United States of America who are in favour of using the death penalty but only in certain cases that demand such stringent measures to be taken.

Hence, the debate remains and is bound to persist because of the varied perceptions of the idea.

The ancient and modern history of the death penalty:

The concept of the death penalty evolved long ago. The instance when the countries framed such sort of punishment dates back to around 1800 B.C. The traces could be linked to the Babylonian Empire regime when certain forms of the death penalty came into play.

There was a prominent code called ‘Hammurabi’ which listed 20 different crimes. It is believed that this was the list of offences in those days where the convicted were sentenced to the death penalty. The most prominent crimes were related to theft, robbery, and even cases of perjury.

The ways used in those eras of times were burning a person, throwing him in front of an elephant, beheading him, or even throwing him with tied shackles in deep waters.

The death penalty soon became associated with the term ‘draconian law’ during its emergence in Greece. In European and other countries there were many instances when the form of punishment was practiced and the most prominent method used was ‘ beheading.’

As the world paced towards the arrival of the 18th century, changes began to emerge. The number of crimes listed for the death penalty began to increase. Later, the opposite was realised. There came acts such as the Judgement of Death Act that made the provision of the death penalty discretionary. 

Further, the countries tried to avoid giving capital punishment and took steps for alternative modes of punishment or methods of deterrence. The list of crimes was prominently reduced and the adoption of life imprisonment punishment gained prominence. Some of the nations even started abolishing the provisions of the death penalty in their regime.

Evolution in India:

The idea of the death penalty has been a part of Indian history for a long time. Even during the pre colonial era, the practice was followed and criminals were subject to cruel ways of death penalties. The most prominent method that the Indian rulers used was throwing the person in front of large animals, like elephants.

However, slowly these forms of practices started to evade. And during British rule, new ways were emphasized. As the Britishers advanced their steps towards the drafting of the Indian Penal Code in 1860, it was decided to keep ‘hanging’ as the sole way of the death penalty and that too in certain situations.

Later, there were various questions raised in India regarding capital punishment. Many sought to abolish it. Many stated that there are various wrong decisions taken due to personal bias and then the poor families have to suffer and protest. 

Even the demand for provisions of appeal and the statements that the punishment is violative of the principles of non-violence gained prominence. And finally, the Criminal Procedural Code included clauses for mentioning the reasons for providing the death penalty.

Theories that helped in the evolution of the death penalty:

Many theorists analysed the concept of capital punishment. And hence several theories tried to explain the logic behind its emergence. Some of the prominent ones being:

• Preventive and deterrence theory: These theories though different had something in common. ‘Prevention is better than cure ’, this was the ultimate motto behind the punishment as per this theory. It focussed on the idea that the concept of the death penalty is meant to ensure that further people from the society understand the consequences of such offences and don’t commit such crimes.

Also, by killing the person himself there are no chances of the culprit returning to society ultimately eliminating the frequency of crime itself.

• Retributive theory:’An eye for an eye ‘, was the idea through which this theory explained the death penalty. It emphasized the idea that there is a moral duty attached to every person living in a society. And by committing a crime, he disobeys this sense of duty and thus becomes entitled to receive punishment. Even ideas that if you cut my hands, your hands will be cut were the sort of explanation that this theory entailed and followed.

The various execution methods and the crimes listed for the death penalty in India:

There are two major ways which are practiced in India while granting the death penalty to a person-

1. Hanging – Mostly all the cases of death penalties in India use this mode of execution for capital punishment. The Indian Courts follow the principle of rarest of the rare cases to determine when to provide capital punishment.
2. Shooting- It is also an official method of execution as per the Army Act of 1950. It is listed along with hanging as a mode of execution but in the military court-martial system.

The crimes of aggravated murder, other offences resulting in death, terrorism-related offences not resulting in death, rapes not resulting in death, kidnapping not resulting in death, treason are some of the vast list of crimes that are punishable by death. The death penalty can be availed in these instances if the Court finds it appropriate to do so.

Laws regarding the death penalty:

The death penalty should be used only in the rarest of rare cases and must be confirmed by the High Court. Also, there exists a right to appeal before the Supreme Court as per Article 136 of the Constitution and under Section 379 of the CrPC. 

The accused may pray for forgiveness, commutation, etc. of sentence to the President or the Governor accordingly. The discretionary power for the President and the Governor to interfere with the merits of the matter is as per A-72 and A-161 of the Constitution. However, the President or the Governor must have all relevant documents and material before them and the essence of their power should not rest on the grounds of race, religion, or caste, but should rather be based on a rational basis.

Landmark Cases:

• Jagmohan Singh v. State of U.P.,1973:

This was one of the most prominent cases of the death penalty in India. The question raised in this case was regarding the constitutionality of capital punishment. The decision was that the punishment per se is not unreasonable or against the public interest. And hence the decision by the Supreme Court favoured the practice of the death penalty in various crimes.

• Bachan Singh v. State of Punjab, 1980:

It is the most important case in regards to the death penalty in India. The question was whether Section 354(3) of CrPC is unconstitutional. The raised objection was that if the procedure mentioned is providing unguided discretion for the Courts in granting capital punishment.

The majority held that the power is under the guidance of the precedents and is in no way unbridled or unguided. However, it was the case that led to the adoption of the ‘rarest of the rare doctrine’ while determining when to give the punishment of the death penalty in further cases.

Conclusion:

If a crime is heinous then there is nothing wrong to follow ‘the death penalty’ as punishment. As kids, in movies and news channels we saw people getting punished and hanged for heinous crimes. Back then we weren’t able to analyse whether capital punishment was essential or not. Its importance remains a subject of debate as it is up to a nation to adopt this mode of practice. Further, the decisions are taken based on judicial interpretation and a case-to-case basis. Hence, the idea is still relevant and needs to be rethought from every aspect to decide if it is the ultimate solution in a specific situation.