DEATH PENALTY – A BOON OR A BANE
Punishment is the force behind the observance of law. If there is no punishment, the people will not be scared of law and will not obey the law. The punishment, however, has certain objectives to achieve for example, deterrence, reformation, incapacitation etc. The main aim behind the punishment is to protect the society at large, and therefore, criminal codes of various countries provide different kinds of punishment depending on the objective to be realized from the infliction of the punishment.
The Chapter III (consisting of Section 53 – 75) of Indian Penal Code, 1860 (hereinafter to be referred as IPC) deals with punishment. Section 53 of the act prescribes different types of punishment which may be awarded by the court while sentencing the convict, wherein death penalty is one of them. Death penalty is prescribed as punishment for 13 offences under IPC. Before coming into force of the 1973 Code of Criminal Procedure (hereinafter to be referred as CRPC), death penalty was a rule and life imprisonment was an exception. However, Sec. 354 (3) of CRPC provides that life imprisonment is a rule and death sentence will be an exception because it requires the court to record special reasons for awarding death sentence.
There are two views in the society regarding death penalty. One view supports the abolition of death penalty whereas another view supports the retention of the death sentence in the statute book. 35th Law Commission Report extensively deals with the concept of Death Penalty and provides number of reasons as to why it should be retained. However, former Chief Justice of High Court of Delhi, A.P. Shah while writing 262nd Law Commission Report on the death sentence that it is to be seen in the circumstances in which the criminal justice system operates and the possibility of fair investigation and fair trial and the opportunity to the accused to defend himself is given properly. Only then, the issue of avoiding death penalty should be taken into consideration. The Law Commission said that it may be retained as far as terrorism related offences or offences against the state are concerned. Though, this view was well criticized by various eminent persons and suggested that in light of various heinous crimes being committed in the society, death sentence serves as a preventive measure to protect the society at large.
The constitutional validity of death sentence has been challenged before the Supreme Court in number of cases starting from Jagmohan Singh V. State of Uttar Pradesh, 1973[i] on one ground or the other. The Supreme Court has consistently held that death penalty is constitutionally valid. Further, the Supreme Court nationalized the awarding of death sentence first time in Bachan Singh V. State of Punjab, 1980[ii] wherein it evolved the concept of rarest of the rare case i.e., the court should award death sentence only when the question of life imprisonment is unquestionably foreclosed and the court has no choice except to award death sentence. This doctrine was further elucidated in Machhi Singh V. State of Punjab, 1983[iii] wherein 5 parameters were laid down to decide the applicability of rarest of the rare case. Since, the sentencing is highly subjective and very much influenced by the personal views and biasness of judges, there is no consistency and objectivity. This situation has led to rethink about the abolition or retention of death sentence.
India is one of only 58 countries that provides for capital punishment in its statute book and have used it in recent past-
• In March, 2020, four convicts in the Delhi gang rape case of 2012 (popularly known as Nirbhaya Case) was convicted and executed by hanging till death as it fall under rarest of the rare case while exhausting all the legal remedies as provided by different statutes by the convicts.
• In July, 2015, Yakub Memon was executed by hanging till death for his role in the 1993 Bombay Bomb blast case.
• In February, 2013, Afzal Guru was convicted and executed for his role in the 2001 Parliament attack case.
• In November, 2012, Ajmal Kasab, the only terrorist captured in Mumbai 2008 terrorist attacks was hanged till death.
[i] Jagmohan Singh vs The State Of U. P on 3 October, 1972, AIR 947, 1973 SCR (2) 541 [ii] Bachan Singh vs State Of Punjab on 9 May, 1980, AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145 [iii] Machhi Singh And Others vs State Of Punjab on 20 July, 1983,AIR 957, 1983 SCR (3) 413