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ASSESSING DEATH PENALTY AS A LEGAL POLICY CONCERN IN INDIA

Author: Kavya Srinivasan, I year of LL.B. from University of Glasgow


Punishment has been a fundamental element of civilization ever since the origin of humanity. The execution of a criminal who has been given the death penalty by a court of law for a serious offence is known as capital punishment, commonly known as the death penalty. It is regarded as the harshest type of punishment. It is a commonly believed notion that reformist and dissuasive philosophies of punishment combine to create the basis of Indian criminal law. Applying penalties to discourage offenders is necessary, but the offender must also be given the chance to change.


The British Indian legislative assembly did not address the death penalty until 1931. During two discussions in the Legislative Assembly prior to independence, then-Home Minister Sir John Thorne made it plain what the government's position was towards the death penalty in British India. “The Government does not believe that it is prudent to repeal the death penalty for any crime for which it is currently authorised.” However, the Indian Penal Code of 1860 and the Code of Criminal Procedure of 1898 were two colonial-era legislation that the Republic of India enacted after gaining its independence. Six penalties, including the death penalty, were imposed by the IPC. It is awarded in the rarest cases as held in Bachan Singh v State of Punjab 1980[i]. The Nirbhaya case[ii] and Macchi Singh case[iii] act as a testimony for this.


Sentencing offenders to death in India isn’t a quick and simple process. There are numerous proceedings and trials conducted before the judge reaches such a conclusion. Ideally, there should be no delays in executing a prisoner in waiting to be executed in the death row. The IPC also permits appeal in cases where the waiting period is longer than 5 years. Approximately 488 people are now in India on death row.


Looking at death penalty in the international context, The United Nations advocated in 2007 that all its member nations eliminate the death penalty for all crimes. This concept has been rejected by several nations, including India.


There are numerous arguments in support of the death penalty as recognised by the Indian constitution. A severe punishment is required to deter murder and terrorism. By assigning the worst punishment to the worst of crimes, future offences may be deterred. This has a significant impact on psychology. It ensures delivery of justice by giving peace to the victim and their family who have been undergoing several hardships. When it comes to morality, it could be suggested that to encourage a good and just society that rejects evil, "an eye for an eye" is warranted. It is vital to instil the dread of death in the minds of criminals to enhance the atmosphere for the general public.


There have been judicial precedents favouring the constitutional validity of capital punishments in India. The death sentence was initially contested in the case of Jagmohan Singh v. State of Uttar Pradesh (1973) on the grounds that it infringed a person's right to life under Article 21[iv] of the Indian Constitution. It was decided that the death penalty is constitutionally acceptable and does not contravene any of the Constitution's articles.


In Deena Dayal v. Union of India (1983), the validity of the death sentence was once more contested on the grounds that hanging by a rope breaches Article 21 since it is barbaric, inhumane, and cruel. According to the Supreme Court, hanging is a legal and constitutional mode of execution within the limitations of Article 21. The Supreme Court affirmed the death penalty for four prisoners in the 2017 case of Mukesh and Anr. v. State (NCT of Delhi), calling it "the rarest of rare" and adding that the crime committed was appalling to humanity.


There have been cases in the past where death penalty has been justifiable hence proving that the courts are using a reasonable approach while handling this provision. The infamous Nirbhaya case where four 2012 Delhi gang members who committed rape and murder were put to death in the Tihar Jail in Delhi in March 2020, marked the most recent executions in India. Since 2000, there have only been 8 executions. Dhananjoy Chatterjee v. State of West Bengal (2004), Dhananjoy Chatterjee killed student Hetal Parekh, 18, and was found guilty of both rape and murder. He was taken into custody by Kolkata police on May 12, 1990, on suspicion of rape, murder, and watch theft and was tried in Alipore Sessions Court, found guilty of all charges, and handed a death sentence in 1991.


Kasab and nine other terrorists carried out a variety of well-planned bombing and shooting operations throughout the city during the notorious 26/11 Mumbai attack. Kasab was given the death penalty by a special court in May 2010. He should be hanged by the neck until he is dead, ordered trial judge ML Tahaliyani on May 7, adding that he had forfeited his right to "humanitarian treatment." Kasab filed a Supreme Court appeal about the death penalty in July 2011. In his statement before the court, Kasab asserted that the prosecution had not proven his guilt beyond a reasonable doubt. His appeal was denied by the Supreme Court, which confirmed the Trial Court's decision to carry out his execution on August 29, 2012.


In the current situation, where India has experienced an upsurge in rape and murder cases, where harsh actions should be taken against the perpetrators, abolishing the death sentence would not make sense. The death penalty is perceived as a more terrifying punishment than life imprisonment, thus if it were employed more frequently when the accused is fully found guilty, people would be less motivated to commit crimes.


In conclusion, there is a consequence for the perpetrator of every crime. The death sentence, which is not frequently carried out in India, is one of the adjustments. One of the rarest of the rare circumstances came into play while conducting research on death penalty convictions and capital punishment. The death penalty has long been a sensitive topic, not only on a global scale but also at the national level in India. Because execution is swift and painless, the death penalty preserves resources that might otherwise be wasted or used elsewhere if wrongdoers were just locked up or detained in prison.

[i]Bachan Singh vs. State of Punjab (1982) 3 SCC 24, 1983 1 SCR 145 a [ii]Mukesh v. State for NCT of Delhi [Nirbhaya case] (2017) 6 Supreme Court Cases 1: (2017) 2 Supreme Court Cases (Cri) 673: 2017 SCC Online SC 533 [iii]Machhi Singh And Others vs State of Punjab- 1983 AIR 957, 1983 SCR (3) 413 [iv]Article 21 in The Constitution of India 1949

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