Generally, Capital Punishment in India means the death penalty awarded by the Court of Competent Jurisdiction in India, in rarest of rare case and where it is specifically provided by the IPC or Special Act. Under The Indian Penal Code, 1860 Capital Punishment is prescribed in India for various offences under the Indian Penal Code. The offences for which capital punishment is prescribed under the Indian Penal Code are as follows:
- Waging war against the Government of India (Section 121)
- Mutiny and its abetment (Section 132)
- Giving or fabricating false evidence upon which an innocent person suffers death (Section 194)
- Murder (Section 302)
- Punishment for murder by life-convict (Section 303)
- Abetment of suicide of child, insane person (Section 305)
- Dacoity accompanied with murder (S. 396)
- Attempt to murder under sentence of imprisonment. If hurt is caused in such an attempt (Section 307).
- Kidnapping for ransom (Section 364-A)
- Causing death or resulting in a persistent vegetative state of the victim (Section 376-A)
Under the Indian Penal Code, approximately ten to eleven offences are punishable by death. A death sentence may also be imposed for a number of offences committed by members of the armed forces under The Army Act, 1950, the Air Force Act, 1950 and the Navy Act 1956. Besides this, the death penalty has also been provided in the other legislation.
a) The Commission of Sati (Prevention) Act, 1987:- This Act provides that if any person abets the commission of Sati (immolation of a widow), either directly or indirectly is punishable with death.
b) The Narcotics, Drugs and Psychotropic Substances (Amendment) Act, 1988:- This Act provides that any person engaging himself (after the previous conviction) in the production, manufacture or sale of the narcotics or psychotropic substance of specified quantities is punishable to a death sentence.
c) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989:- This Act provides that in case any person fabricates or provides false evidence resulting conviction and execution of an innocent member of a scheduled caste or scheduled tribe.
d) In February 2013, the Criminal Amendment Act, 2013:- The Amendment Act 2013 provides death penalty in case of causing the death of a rape victim
Mode of Execution of death penalty:-
The execution of death sentence in India is carried out by two modes namely hanging by neck till death and being shot to death. The jail manuals of various States provide for the method of execution of death sentence in India. Once the death sentence is awarded and is confirmed after exhausting all the possible available remedies the execution is carried out in accordance with section 354(5) of the Code of Criminal Procedure 1973 i.e. hanging by neck till death. It is also provided under The Air Force Act, 1950, The Army Act 1950 and The Navy Act 1957 that the execution has to be carried out either by hanging by neck till death or by being shot to death.
The execution of the death sentence is an Act committed or to be committed on behalf of the State in Compliance of the Order of the Court. A private person is debarred by law of the Land to execute the Capital Punishment, when it is done so by the Private Person then it is considered as murder, which is defined U/s 300 of the Indian Penal Code, 1860 and Punishment of the same is provided U/s 302 of the Indian Penal Code, 1860. Before the independence, the death penalty was prescribed as one of the Punishments which is sustained in India even after independence of the Country on 15th August 1947. The first hanging in India was in the assassination case of Mahatma Gandhi to Nathuram Godse and Narayan Apte on 15th of November 1949. In India Constitution is the Supreme Law, so, Article 21 of the Constitution of India says that no person can be deprived of his life and liberty except according to procedure established by law. It means a person can not be deprived of his life and liberty except following the proper procedure. So the Courts hold the trial completely and at the end of the trial pronounce the Capital Punishment if it is made out as per fact, circumstance and evidence on record. The Constitution Bench of the Hon’ble Supreme Court of India in a famous case of Bachan Singh vs. the State of Punjab (1980) (2 SCC 684) clarified that the death sentence should be provided only in rarest of the rare case only. In para 207 the Constitution Bench of 5 judges observed that
“For persons convicted of murder life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed”
Comparative Analysis: The Supreme Court observed the constitutionality of the death penalty for the first time In Jagmohan Singh v State of Uttar Pradesh (AIR 1973 SC 947).The Hon’ble Apex Court observed that the death sentence does not extinguish all the freedoms guaranteed under Article 19 of the Constitution of India. Also, the unguarded discretion given to judges does not violate Article 14 of the Constitution of India.
After Bachan Singh’s case, the Hon’ble Supreme Court of India again considered whether the death sentence should be imposed in the case titled as Machhi Singh and others vs State of Punjab AIR 1983 SC 957 (a 3 Judge Bench decision). The accused were awarded death sentences but the Court held that in order to apply the guidelines of Bachan Singh’s case the following questions should be asked:
(a) Is there something uncommon about the crime which renders a sentence of imprisonment for life inadequate and called for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offender. The Court held that if the answer to the above is in affirmative, then death sentence is warranted.
The Hon’ble court in this Case further observed that when a member of the community kills another member and violates this principle then the society may not feel bound by the shackles of this doctrine. Also, it has to be realized that every member of the community is able to live with safety without his or her own life is endangered because of the protective arm of the community and on account of the rule of law endorsed by it. Also, there should be a deterrent impact on those who are unscrupulous in killing others.
The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission, of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:
I. The Manner of Commission of Murder
- When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse the intense and extreme indignation of the community. For instance,
- when the house of the victim is set aflame with the end in view to roast him alive in the house.
- when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
- when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. The Motive for the commission of murder:-
When the murder is committed for a motive which evinces total depravity and meanness. For instance when:-
- a hired assassin commits murder for the sake of money or reward
- a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis- -vis whom the murderer is in a dominating position or in a position of trust, or
- a murder is committed in the course of betrayal of the motherland.
III. Anti-Social or Socially abhorrent nature of the crime:-
- When the murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them off or make them surrender lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
- In cases of ‘bride burning’ and what are known as ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
IV. The Magnitude of Crime:
When the crime is enormous in proportion. For instance, when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V. The personality of a victim of murder:-
When the victim of murder is of;
- an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder
- a helpless woman or a person rendered helpless by old age or infirmity
- When the victim is a person vis-`a- vis whom the murderer is in a position of domination or trust.
- When the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.”
In any criminal case in which the death penalty is prospective, the court may consider mitigating circumstances while imposing the punishment in determining whether to sentence the accused to death or life imprisonment.
Common Mitigating Circumstances:
Commonly used mitigating factors include as mentioned below:
- Defendant’s Age – whether the defendant was an adult or minor at the time of the crime.
- Mental capacity – such as the defendant’s intellectual disability, or mental state at the time of the crime.
- History of Abuse – whether the defendant has a history of being abused.
- No Criminal Record – this usually refers to a criminal history as an adult, but very serious offenses as a minor may be considered an aggravating circumstance.
- Victim Culpability – the victim willingly took part in the crime or other events, which may have led to the crime.
- Unusual Circumstances – the defendant’s actions were due to temporary emotional stress or severe provocation.
- No Harm Done – the actions of the defendant were somehow justified and did not cause harm to another person.
- Necessity – the defendant committed the crime out of necessity.
- Remorse – the defendant clearly shows he is remorseful for his actions.
In Shankar Kisanrao Khade v. State of Maharashtra, 2013(5) SCC 546 The Hon’ble Supreme Court of India held that three tests have to be applied while awarding punishment i.e. crime test, criminal test and rarest of rare case test. The Supreme court observed that crime test should be 100% and then the criminal test has to be applied i.e. mitigating circumstances in favor of the accused. If there are no mitigating circumstances exist in favor of accused still the test of rarest of the rare case should be applied while imposing the punishment of a death sentence.
The Supreme Court in its decision in T. V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361 reiterated that prolonged delay in execution exceeding two years will be a sufficient ground to quash death sentence since it is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the death sentence. The Court further observed that the cause of the delay is when the sentence is that of “death” and a person under sentence of death may also claim fundamental rights, i.e. procedure under Article 21 must be just, fair and reasonable.
Execution of Death Sentence:
Section 413 of Criminal Procedure Code provides that after confirmation of a sentence of death by the Hon’ble High Court, the court of session thereafter shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.
Section-414 of the Criminal Procedure Code provides that when a sentence of death is passed by the Hon’ble High Court in appeal or in revision, on receiving the order the court of the session shall cause the sentence to be carried into effect by issuing a warrant.
Section-415 (1) of the Criminal Procedure Code provides that if the appeal lies to Supreme Court after the sentence of death is passed by the Hon’ble High court then the High court shall pass an order to postpone the sentence of death until the period allowed for preferring such appeal has expired, or if an appeal is preferred within that period, until such appeal is disposed of.
Section 415 (2) of the Criminal Procedure Code provides that where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes an application to the High Court for the grant of a certificate under Article 132 or under sub-clause(c) of clause(1) of Article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until such application is disposed of by the High Court, or if a certificate is granted on such application, until the period for preferring an appeal to the Supreme Court on such certificate has expired.
Section-416 of the Criminal Procedure Code provides that if a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed and may if it thinks fit, commute the sentence to imprisonment for life.
Section 425 (3) of the Criminal Procedure Code provides that when a sentence of death is passed or confirmed by the High Court, and High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for the grant of special leave to appeal under Article 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition.
Capital Punishment In Canada: Capital Punishment is de-facto abolished in Canada in 1963. By the enactment of 1976, the death penalty has been abolished de-jure except for certain military offences committed by members of Canadian Armed Forces i.e. (cowardice, desertion, unlawful surrender, and spying for the enemy) the prosecution of which is done under the National Defence Act 1998.
Death Penalty in the US: The Death Penalty has reached low records in the US at both the State and Federal level. With the fade of the death penalty across the country, many states have put the matter on the ballot in recent years, but voters have been reluctant to abolish capital punishment completely.
States in which the Death Penalty is not abolished: In the following states the death Penalty still survives:
- New Hampshire
- North Carolina
- South Carolina