Download Capital Punishment: Evolution and Constitutional Validity and more Thesis Law in PDF only on Docsity!
Capital Punishment: Evolution and Constitutional Validity
Abstract
All around the world, our legal systems continue to strongly favor capital punishment. This article aims to offer a historical perspective on the idea and how it developed in the Indian context because its validity has long been contested. The subject is the development of the capital punishment, which is traced throughout the development of Indian law in many guises. Diverse viewpoints have contributed to the debate over whether the capital punishment is still appropriate, but in order to comprehend and analyze the nature of the punishment and then assess its appropriateness, it is necessary to consider the historical context. The article concludes the discussion on the modern context and concludes the viewer's journey through the historical background of the capital punishment in the context of India. It also discusses how these events shaped the current concept of the capital punishment. The books that serve as the major sources of legislation in the particular chronological context are examined in addition to the publications that describe these events.
Keywords: Capital Punishment, Death Penalty, Constitutional Validity, Historical Evolution,
Indian Penal Code, Code of Criminal Procedure
Introduction
The term capital refers to execution by beheading. It has been derived from the Latin word caput , which means ‘head’.^1 Capital punishment, also known as the death penalty, is a state-sanctioned practice of killing a person as a punishment for a crime. The sentence ordering that an offender is to be punished in such a manner is known as a death sentence, and the act of carrying out the sentence is known as an execution. A prisoner who has been sentenced to death and awaits execution is condemned and is commonly referred to as being "on death row". (^1) Kronenwetter, Michael (2001). Capital Punishment: A Reference Handbook (2 ed.). ABC-CLIO. ISBN 978-1- 57607-432-9.
Currently, there are around 488 prisoners on death row in India.^2 The most recent executions in India took place in March 2020, when the four 2012 Delhi gang rape and murder perpetrators were executed at the Tihar Jail in Delhi.^3 This article seeks to critically analyze the evolution of capital punishment and how it came to be in India, the due process and its constitutional validity, with reference to various case laws.
Research Methodology
Qualitative Qualitative research involves collecting and analyzing written or spoken words and textual data. It may also focus on body language or visual elements and help to create a detailed description of a researcher's observations. Researchers usually gather qualitative data through interviews, observation and focus groups using a few carefully chosen participants. This research methodology is subjective and more time-consuming than using quantitative data. Researchers often use a qualitative methodology when the aims and objectives of the research are exploratory. For example, when they perform research to understand human perceptions regarding an event, person or product. Quantitative Researchers usually use a quantitative methodology when the objective of the research is to confirm something. It focuses on collecting, testing and measuring numerical data, usually from a large sample of participants. They then analyze the data using statistical analysis and comparisons. Popular methods used to gather quantitative data are: Organizational records This research methodology is objective and is often quicker as researchers use software programs when analyzing the data. An example of how researchers could use a quantitative methodology is to measure the relationship between two variables or test a set of hypotheses. Mixed-method (^2) Project 39A, National Law University, Delhi (2022). Death Penalty in India: Annual Statistics Report 2021 (^3) Mukesh v. State (NCT of Delhi), (2017) 6 Supreme Court Cases 1: (2017) 2 Supreme Court Cases (Cri) 673: 2017 SCC OnLine SC 533
- Kidnapping for ransom, etc.^11
- Dacoit accompanied with murder.^12 Death sentence can also be awarded under special statute like POTA, Narcotics, Drugs, and Psychotropic Substance Act. In the past three decades, significant progress has been made toward a world without executions. Since 1980, approximately 25 countries have done away with the death penalty for all crimes. Since then, 91 countries have abolished the death penalty for "ordinary" crimes while keeping it in place for crimes like treason or those covered by military law. Amnesty International considers 33 nations to be "abolitionist in practice," which means they still have the death penalty for crimes like murder but haven't carried out an execution in the past ten years and are thought to have a policy or established practice of not doing so. This means that 135 nations have abandoned the death penalty as a punishment. At the end of 2007, the death penalty was still in use in 14 Asian Pacific countries, including China, where the number of executions exceeded those in the rest of the world combined. Regional efforts are being made to abolish it, nevertheless. In 2006 and 2007, the Philippines and the Cook Islands, respectively, abolished the death penalty, joining the 17 other Asia Pacific nations that had already done so. At this point, 27 countries in the Asia-Pacific region no longer have the death sentence as a legal or accepted punishment. The death penalty has been outlawed by legislative action in Mongolia and South Korea. Additionally, regional lobbying against the death penalty has increased from both individuals and civil society organizations. The 1861 Penal Code, which established the death penalty for murder and compelled judges to offer an explanation if a death sentence was not carried out, was retained by India after it attained independence in 1947. While the Indian Constitution was being written between 1947 and 1949, some members of the Constituent Assembly expressed a wish to abolish the death penalty; however, no such provision was included in the Constitution. Private members' bills to end the death penalty were put out in both chambers of parliament during the following 20 years, but none of them were approved. (^11) Section 364 Indian Penal Code. (^12) Section 364A Indian Penal Code.
In 1973, the Indian Supreme Court for the first time upheld the legality of the death penalty in the case of Jagmohan Singh v. State of U. P^13. The same year saw the adoption of a new Code of Criminal Procedure. The new Code required judges to document "special reasons" for death sentences and made a trial court pre-sentencing hearing a requirement. It was obvious that the court would need to hold such a hearing in order to assess whether the evidence supported the existence of any "special reasons" for the death penalty. In the significant case of Bachan Singh v. State of Punjab^14 and other cases in 1980, the Supreme Court affirmed the constitutionality of the death penalty notwithstanding the bench's lack of unanimity. According to the ruling, sentencing should take into account both aggravating and mitigating factors relating to the offence and the convict prisoner, and the death penalty should only be applied in the "rarest of rare" circumstances. In this case, Justice Bhagwati of the Supreme Court argued that the death penalty was unconstitutional in Minority Judgment, which was published in 1982. He listed a number of problems with the criminal justice system, including: "Our convictions are based largely on oral evidence of witnesses. Often, witnesses perjure themselves as they are motivated by caste, communal and factional considerations. Sometimes they are even got up by the police to prove what the police believe to be a true case. Sometimes there is also mistaken eyewitness identification and this evidence is almost always difficult to shake in cross-examination. Then there is also the possibility of a frame up of innocent men by their enemies. There are also cases where an overzealous prosecutor may fail to disclose evidence of innocence known to him but not known to the defense. The possibility of error in judgment cannot therefore be ruled out on any theoretical considerations. It is indeed a very live possibility..." Justice Bhagwati's reservations in 1982 were similar to those raised by Indian Constituent Assembly members 35 years earlier as they framed the nation's constitution. The death penalty should only be used in the "rarest of rare" circumstances, the Supreme Court said in this case. After more than 25 years, it is clear that the Court's demands have not been fulfilled since courts and state agencies have continually failed to follow the procedures outlined in the statute and in that ruling. (^13) AIR 1973 SC 947 (^14) AIR 1980 SC 898
miscarriage of justice as a result of basic mistakes in the evaluation of circumstantial evidence made by both the trial court and the High Court. The Supreme Court criticized the lower judiciary, saying in an indictment: "The appellants were found guilty by the learned Sessions Judge on fanciful charges that were supported only by suppositions and conjectures. It is particularly regrettable to see that the learned Sessions Judge convicted the appellants and chose to execute them based on little, contradictory, and weak evidence." A three-judge panel in Krishna Mochi and others v. State of Bihar^18 divided on the sentencing of one of the appellants but agreed on the conviction and upheld the death sentence for three other appellants. In a dissent, Justice Shah said that the case did not support the death penalty because to flaws in the investigation and the evidence, which just indicated the accused's presence at the scene of the murder. On the other side, he said that "this case demonstrates how faulty, delayed, negligent, unscientific inquiry and lapse of lengthy period of trial weakens the administration of justice, which in turn shakes public confidence in the system." Evolution and Methods of Execution The death penalty was the standard punishment for murder under the Code of Criminal Procedure (CrPC) of 1898, and judges were required to give justification for their decision to sentence someone to life in prison. A 1955 change to the CrPC eliminated the requirement of providing written justifications for not using the death penalty, showing that there was no legislative preference between the two sentences. Following another revision to the CrPC in 1973, life imprisonment was becoming the norm rather than the death penalty, which was only to be used in exceptional cases needing "special reasons."^19 This significant change denotes India's readiness to curtail the usage of the death penalty. A criminal trial was split into two sections by the Criminal Procedure Code of 1973, with separate sessions for conviction and sentencing.^20 Execution by Hanging Roman law (which employed the crucifixion as a method of punishment), Anglo-Saxon law, English law, and German law all utilized the hanging as a method of execution. Hanging was a frequent and accepted form of execution in the United Kingdom until the death penalty was (^18) (2002) 6 SCC 81 (^19) Section 354(3) of the Criminal Procedure Code (^20) Section 235(2) of the Criminal Procedure Code
abolished there in 1965. A knot in the noose helps the victim's head be jerked back sharply enough to break the neck in this traditional method of execution, which may involve suspending the victim from a gallows or crossbeam until death by asphyxia. It may also involve the condemned person standing on a trapdoor and falling a few meters before being stopped by the rope tied around his neck. As stated in Section 354(5) of the Criminal Code of Procedure, 1973, the primary method of execution in India is "hanging by the neck till dead," and the death penalty is only applied in the "rarest of cases." The Law Commission stated in its 2015 report that India must move away from hanging and adopt more contemporary forms of punishment. This method of death is hotly debated. The constitutionality of hanging was contested in the case of Deena v. Union of India^21 in September 1983 on the grounds that it violated the person's right to life and was barbaric and cruel as intended by Section 354(5) CrPC. The court came to the decision that hanging was an acceptable means of punishment under Article 21 and hence constitutional after taking into account a number of historical factors and the recommendations of the law commission. In the case of Rishi Malhotra v. Union of India^22 , filed in October 2017, hanging as a method of execution was contested in a writ petition, with the argument that it was not only barbaric, inhumane, and cruel, but also in violation of resolutions of the United Nations Economic and Social Council (ECOSOC). This case spurred discussion regarding the switch from hanging to more contemporary methods of execution in several wealthy nations. Additionally, it was considered how, in accordance with international norms, executions should be as quick and simple as possible, causing instantaneous unconsciousness and demise. Execution by Shooting According to the Army Act, Navy Act, and Air Force Act, death by gunshot is the other method of execution authorized by Indian law besides hanging. The Air Force Act of 1950's Section 34 authorizes the court martial to sentence violators to death for the crimes enumerated in Section 34(a) to (o). The court martial has the option of using a hanging or a gunshot as the execution (^21) AIR 1983 SCR 1155 (1) 1 (^22) (2017) 16 SCC 767
