By Puranjane, Archit Rajpal
The concept of awarding punishment, in other words, could be termed as ‘sanction’, an ancient concept which took birth during the time when man started living in colonies which led to the formation of society. Sanction ensured control over the behavior of man and thus protected the interests of society. Sanction could be defined as a ‘consideration operating to enforce obedience to any rule of conduct’. As the meaning suggests, it has acted as an effective and indispensable tool to ensure perfect law and order in the society. In ancient times, the rulers or the emperors were the sole authority who exercised judicial powers too. Gradually, with time, numerous reforms were made in the process of execution of the guilty to ensure a less painful and peaceful death.
Focusing on the death penalty, one could say that the death penalty has been a mode of punishment since time immemorial. The arguments for and against have not changed much over the years. Crime as well as the mode of punishment correlates to the culture and form of civilization from which they emerge. The entire system of justice is based on a foundation which aims to provide a suitable punishment for crimes either against a person or the state at large. So why can’t death be a suitable punishment? But what does the judiciary mean when it convicts someone? It means that he or she is not suitable to live in society as they may hamper the peace of the society, pose a threat to society and its people, and thus deserve to be executed. Law also points out that by convicting the accused, it sets an example in the society so that any person doing such an act in the future, or thinking of doing such an act, would think thrice about the consequences he would likely be facing, and this, at times, stops the person from committing such heinous crimes. The Supreme Court has brilliantly pointed out that the presence of the death penalty in the statute book means that it can be imposed in heinous and gruesome murder cases, such as those relating to honor killings, dowry deaths, fake encounters, and hired killings.
Taking the case of India, Section 354(3) of the Criminal Procedure Code (CrPC), added to the Code in the year 1973, requires a judge to give “special reasons” for awarding death sentences. Fortunately, a new CrPC in the same year had changed the death penalty from being the norm to an exception. In the year 1980, the Supreme Court propounded the “rarest of rare” doctrine in the landmark Bachan Singh case, and since then, the life sentence is the rule and the death sentence an exception. The Court said, “…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.”
In 1980, the Supreme Court again upheld the constitutionality of the death penalty in the key case of Bachan Singh v. State of Punjab, although the bench was not unanimous. It was in this case that the phrase “rarest of rare” was introduced, which continues to be cited and used even till the present day.
This adoption of the new benchmark was witnessed in the recently decided Graham Staines, Jessica Lall, and Priyadarshini Mattoo murder cases, wherein the Supreme Court refused to impose capital punishment on the ground that these did not fall within the category of “rarest of rare.” On the contrary, in society’s interest, it has made sure that the ‘life term’ extends beyond the 14-year term. This view was given by the apex court in the case Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka. In this case, the court dealt with the issue of whether the death penalty can be substituted by life imprisonment with the further direction that the convict would not be released for the rest of his life. This led to hot debates on the justification of the death penalty and the need for an alternate option.
One of the greatest reasons for criticizing the death penalty is that, in India, a person who is awarded a death sentence is executed only by hanging, which is considered cruel and inhuman and stands in violation of Article 5 of the Universal Declaration of Human Rights, which says, ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ The Supreme Court in the case of Deena v. Union of India discussed “how lethal injection is to be administered.” It may be mentioned here that in this case, the Supreme Court upheld the constitutional validity of Section 354(5) of the Code of Criminal Procedure of 1973 for carrying out a death sentence by hanging by the neck till the convict is dead, and further concluded it as the best available method in India compared to the electric chair, shooting, or lethal injection.
Position in India
Being one of the most controversial provisions, there have been many landmark cases against the death penalty throughout the entire course of time. The three notable cases in the history of the Supreme Court of India are as follows:
- The Machchi Singh and Ors. vs. State of Punjab case was of grave importance as the Supreme Court laid down what made cases “the rarest of rare” and thus could invite the death penalty. The following points were established by the court: manner of commission of murder, motive for murder, anti-social or socially abhorrent nature of the crime, magnitude of the crime, and personality of the victim of murder.
- The Jagmohan Singh vs. State of Uttar Pradesh case was important in the light that it challenged the constitutionality of the death penalty. However, this was rejected by the Supreme Court, saying “…in the face of these [Article 21]…”.
- The Ajit Singh Harnam Singh Gujral case: This ruling was handed down by a bench of Justice Markandey Katju and Justice C.K. Prasad while upholding the death penalty for Ajit Singh Harnam Singh Gujral, who killed his wife and three grown-up children in Mumbai in April 2003. This death sentence reignited a fresh debate on the death penalty in the wake of efforts to whip up resistance to the impending hangings of death row convicts ranging from those held guilty of assassinating former PM Rajiv Gandhi to Khalistani terrorist Devendra Pal Singh Bhullar and Parliament attack plotter Afzal Guru. The court noted that globally the movement was away from the death penalty, but at the same time, the judiciary cannot keep away from using capital punishment for “rarest of rare” cases so long as it was provided for under the law.
In India, after all legal deliberations are over with due care, there is still an option for the convict to escape under a mercy petition that is sought from the President or the Governor. Is it a random decision, will and pleasure, or political? There are no constitutional obligations or guidelines for the power sources to act upon. The accused, rather the punished, is inching toward death with all the agony when the mercy petition is kept aside for long in table drawers—a cold storage act, indeed! It is a nightmare not in sleep, but immediately after waking up. In fact, the condemned and several family members die several times over during this prolonged span of time. Capital punishment under Section 302 of the Indian Penal Code is to be debated and done away with as early as possible.
Conclusion
It cannot be disputed that the outcome of any trial depends to a large extent on the quality of legal advice that the accused receives. Thus, we conclude that in India, the law is not incorrect in granting death to persons guilty of rarest of rare crimes. In India, death for such persons is a must, so as to set precedents for society and to bring in a sense of fear in the minds of people who are involved in heinous crimes. Leniency in dealing with offenders of such cases is currently not a matter of appraisal in India. Even after grave steps taken by the Human Rights Commission, Indian courts are of the opinion that the provision for the death sentence should be kept intact but with a narrow purview. It is mandatory because of the low literacy rate in the country and the lower adherence to moral ethics which drives ill-intent people to end up committing such crimes. Therefore, in India, with recent amendments in penal laws, the purview of the death sentence has been narrowed, and it can thus be held justified and effective.
The just, fair, effective, and reasonable nature of the amended death sentence clause is evident from the recently decided Dhananjay Chatterjee case, wherein the crime committed by the accused was found to fall within the purview of the death sentence provision and was thus awarded death. Even the President of India failed to acknowledge his appeal to lessen his punishment, and the sentence was finally carried out.