Death Penalty: India’s Take On It
“To take a life when a life has been lost is revenge, not justice.”
The concept of awarding punishment, which in other words could be termed as ‘sanction’, is 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 interest 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 less painful and peaceful death.
Focusing on death penalty, one could say that 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. 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. In the year 1980, the Supreme Court propounded the “rarest of rare” doctrine in the landmark Bachhan Singh case and since then, the life sentence is the rule and death sentence, an exception. 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 the 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 years 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 held that the death penalty ought not to be imposed save in the rarest of rare cases when the alternative option is unquestionably foreclosed. 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 justification of death penalty and the need for an alternate option. One of the greatest reason for criticizing death penalty is that, in India, a person who is awarded death sentence is executed only by hanging, which is considered cruel and inhuman and stands in violation to 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.’
POSITION IN INDIA
In India, after all legal deliberations are over with due care; there is still an option for the convict to escape under 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 to death with all the agony when the mercy petition is kept aside for long in the table drawers, cold storage act, indeed! It is a nightmare not in sleep but immediately after waking up. In fact the condemned and several of his family 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.
Being one of the most controversial provisions in the Indian Constitutions, there have been many controversial cases against death penalty throughout the entire course of time. The three landmark cases in the history of the Supreme Court of India are following:
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 (Art. 21 & 72) indications of constitutional postulates it will be very difficult to hold that capital sentence was regarded per se unreasonable or not in the public interest”. But fortunately, a new CrPC in the same year had changed the death penalty from being the norm to an exception.
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. 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.” It was in this case that the phrase “rarest of rare” was introduced and which continues to be cited and used even till the present day.
The Machchi Singh and ors. Vs. State of Punjabcase 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 entire system of justice is based on the foundation which aims to provide a suitable punishment for the 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 the society as they may hamper the peace of the society and they pose as a threat to the society and its people and thus they 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 act in future or thinking to do such 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 death penalty in the statute book means that it can be imposed in heinous and gruesome murder cases, such as those relating to honor killing, dowry death, fake encounters and hired killings.
This ruling, handed down by a bench of Justice Markandey Katju and Justice C K Prasad while upholding death penalty to one 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 death penalty in the wake of efforts to whip up resistance to the impending hanging of death row convicts ranging from those held guilty of assassinating former PM Rajiv Gandhi to Khalistani terrorist Devendra Pal Singh Bhullar to Parliament attack plotter Afzal Guru. The court noted that globally the movement was away from death penalty, but at the same time the judiciary cannot keep away from using the capital punishment for “rarest of rare” cases so long as it was provided for under the law.
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 Code of Criminal Procedure of 1973 for carrying out of death sentence by hanging by neck till the convict is dead and further concluded it as the best available method in India to electric chair, shooting or lethal injection.
It cannot be disputed that the outcome of any trial depends to a large extent on the quality of legal advice that the accused receive. Thus, we conclude that in India, the law is not incorrect in granting death to the person guilty of rarest of rare crime. In India, death for such person is a must, so as to set precedents for the 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 case is currently not a matter of appraisal in India. Even after grave steps taken by the Human Rights Commission, the Indian courts are of the opinion to keep the provision for death sentence intact but with a narrow purview. It is mandatory because of the low literacy rate in the country and less value for moral ethics which drives ill intent people to end up committing such crimes. Therefore, in India, with recent amendments in the penal laws, purview of 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 punishment was finally awarded.
 Archbishop Desmond Tutu, retrieved by Thomas Gaudett in “Reviving a sense of justice”, link: http://harvardpolitics.com/united-states/reviving-a-dying-image-and-sense-of-justice/, date: 25th October, 2013, 1:25 PM
 When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
 AIR 1980 SC 898
 Siddhartha Vashisht @ Manu Sharma Vs. State, 2002 CriLJ 341
 Death sentence reduced to life imprisonment by the apex court in October, 2010, link: http://ibnlive.in.com/news/we-expected-death-sentence-mattoos-father/132474-3.html, retrieved on, 24th October, 2013, 1:15 AM
 2008 (11) SCR 93
 AIR 1973 SC 947
 AIR 1980 SC 898
 AIR 1983 SC 957
 1983 (4) S.C.C. 645
 When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead, Section 354(5) of Code of Criminal Procedure, 1973