Constitutional Validity of Death Penalty in India

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[highlight]-Sukriti Singh, University Institute of Law, R.D.V.V.[/highlight]

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“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment.” ― J.R.R. Tolkien, The Fellowship of The Ring

The issue of death penalty has been debated, discussed, studied from a prolonged time but till now no conclusion can be drawn about the retention or abolishment of the provision. Death penalty has been a mode of punishment from time immemorial which is practiced for the elimination of criminals and is used as the punishment for the heinous crimes.

Various countries have different outlook towards crime in different ways. In Arab countries they choose the retributive punishment of “an eye for an eye” others have deterrent punishment. Of late there has been a shift towards restorative and reformist approaches to punishment, including in India.

India is one of the 78 retentionist countries which have retained death penalty on the ground that it will be awarded only in the ‘rarest of rare cases’ and for ‘special reasons’. Though what constitutes a ‘rarest of rare case’ or ‘special reasons’ has not been answered either by the legislature or by the Supreme Court.

The constitutional validity of the death penalty was challenged from time to time in numerous cases starting from Jagmohan Singh v. State of U.P where the SC rejected the argument that the death penalty is the violation of the “right to life” which is guaranteed under article 19 of the Indian constitution. In another case Rajendra Prasad v. State of UP, Justice Krishna Iyer has empathetically stressed that death penalty is violative of articles 14, 19 and 21. But a  year  later  in  the  landmark  case  of  Bachan Singh  v. State of  Punjab,  by  a  majority  of  4  to 1  (Bhagwati J.dissenting) the Supreme  Court overruled  its  earlier  decision  in  Rajendra  Prasad.  It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14, 19 and 21  of  the  Constitution of  India,  because  the “public  order” contemplated by clauses  (2)  to  (4)  of Article  19  is  different  from  “law  and  order”  and  also  enunciated  the  principle  of  awarding  death penalty only in the ‘rarest of rare cases’. The Supreme Court in Machhi Singh v State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed.

Similarly in various other cases the Supreme Court has given its views on death penalty and on its constitutional validity. But the punishment of death penalty is still used in India, some time back the death penalty was given to Mohammad Ajmal Kasab. The Pakistani gunman convicted in 2008 Mumbai attacks was sentenced to death by hanging and after a long discussion, politics and debate was finally hanged on 21 November 2012. Next in the row is Afzal Guru, convicted in 2001 Parliamentary attacks was also hanged after a huge political discussion on 9 February 2013.The next convict in the death row is Devendra Pal Singh Bhullar, convict of 1993 car bombing will be hanged in the coming days as his mercy petition was rejected by the Supreme Court by holding that in terror crime cases pleas of delay in execution of death sentence cannot be a mitigating factor.

[quote]There has been a diverse opinion regarding the death penalty in India as some are in the favor of the retention of the punishment while others are in the favor of its abolishment.  Those who are in the favor of death penalty argue that it should be given in the most heinous and rarest of the rare crimes as for example the Delhi gang rape case the demand for death penalty for the accused was raised . But the people who are against the capital punishment argue on the religious, moral and ethical grounds and declare it inhuman and callous investment by unsure and unkempt society. It is also suggested that it should be replaced with life imprisonment or any substitute must be brought out.[/quote]

[highlight]Sanction is an essential ingredient of law. Punishment is a social custom and institutions are established to award punishment, after following criminal justice process. Governments prohibit taking life, liberty or property of others and specify the punishments, threaten those who break the law. Death penalty in India is not completely abolished but given in rarest of the rare cases which in my opinion  must  be  retained  for  incorrigibles  and  hardened criminals but its use should be limited to rarest of rare cases so as  to  reduce  the  chances  of  arbitrariness  in  judicial process and  failure of  justice.[/highlight]

Case laws referred:

Jagmohan Singh v. State of U.P (1973) 1 SCC 20.

Rajendra Prasad v. State of UP, AIR 1979 SC 917.

Bachan Singh v. State of Punjab,(1979) 3 SCC 727.

Machhi Singh v. State of Punjab ,AIR 1983 SC 957.