Sankalp Mandawaria
Abstract
Capital Punishment is the execution of a wrongdoer who is sentenced to death after conviction of a criminal offence by a court of law. It is awarded only in the “rarest of the rare cases”to minimize death sentences.
It is awarded for the most serious heinousness and grievous crimes. In India Article 21 of the Constitution titled ‘Protection of life and personal liberty’ says “No person shall be deprived of his life or personal liberty except as according to procedure established by law.”[1]
This signifies that under no circumstances can your right to life be taken away except by the due process of law. Various offences, for example, criminal conspiracy, murder, anti-terrorism are punishable with capital punishments under Indian Penal Code (IPC). Only the president has the authority and power to grant mercy in cases related with capital punishments.
Introduction
Capital punishment, also called death penalty, execution of an offender sentenced to death after conviction by a court of law of a criminal offence. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law.[2] There are several nations that have already abolished capital punishment and there are some, like India, who have an elaborate procedure. Doctrine of the rarest of the rare case along with a list of aggravating and mitigating factors is used to determine whether a person should be given such a sentence or not. Mode of execution must also be according to the International norms ‘quick and painless’.
Factors considered for the “rarest of the rare case”:
(1) Manner of Commission: The Court stated that if the crime was carried out in extremely brutal manners so that it arouses the intense indignation of the society, it’d fall under the rarest of the rare case.
(2) Motive for Commission: When the crime is committed in furtherance to betray the nation, or assassins are contracted to kill the victim, or any intentional plan is made to murder the victim in an inhumane way, it’ll also fall under the rarest of the rare.
(3) Magnitude: When the crime is humongous in extent, for example, murdering all the members of a family.
(4) Socially Abhorrent Nature: When the crime is such that it is socially loathed, such as murdering a person belonging to the backward classes of the community, or burning of a bride in case dowry wishes are not met, or murdering a woman to remarry again.
(5) Victim: If the victim of the crime is a child, who couldn’t have provided any reason to the accused to carry out the crime, or a helpless woman, or an old individual, and if the victim was mentally challenged, or the victim was a public figure, the crime could fall under rarest of the rare case.
There are several crimes that qualify as a “capital crime,” and they tend to vary by country, and sometimes even by state.[3] They are punishable by death.
Some crimes and offences which are punishable by death are:
(1) Aggravated homicide: It is punishable by death in accordance with Section 302 of the Indian Penal Code.
(2) Terrorism-related offenses not resulting in death: The use of any special category of explosive to cause an explosion that could imperil life or cause serious harm to property is punishable by the capital punishment.
(3) Rape not resulting in death: An individual who inflicts injury in a rape which results in death or is left in a “persistent vegetative state” may be punished with death under the Criminal Law Act, 2013.
As indicated by the 2018 Criminal Law Ordinance, an individual who is liable for rape of a girl who is below 12 years of age may be sentenced to death or sent to prison for 20 years along with fine. The 2018 amendment also specifies the death penalty or life imprisonment for a girl’s rape under the age of 12.
(4) Kidnapping not resulting in death: As indicated by Section 364A of Indian Penal Code, 1860, kidnapping not resulting in death is an offence punishable by death. If any individual who is confining an individual, threatens to harm or kill him and actually results in causing death of the victim, will be liable.
(5) Drug dealing not resulting in death: If a person convicted of a commission or attempt to commit, abet, or criminal conspiracy to commit any of a range of drug trafficking offences, or financing of some specific types and amounts of narcotic and psychotropic substances, the individual in can be sentenced to death.
(6) Treason: Capital punishment is given to any individual who is pursuing or attempting to take up arms against the government and helping Navy, Army, or Air Force officials, soldier, or members to commit a mutiny.
(7) Military offenses not resulting in death: Mutiny or assaulting airman, soldier, the sailor from his duty and various other offences are punishable by death if committed by a member of the Army or Navy or Air Force.
(8) Other offences resulting in death: In the Indian Penal Code, capital punishment is given to an individual who commits murder during an armed robbery. The abduction of the victim for the money is punishable if the victim has been killed. Organized crime involvement, if it results in death, is punishable by capital punishment. Committing or helping to commit Sati to another person is also punishable by the capital punishment.
(9) Other offences not resulting in death:
1.If a person is involved in a criminal conspiracy to commit a capital offence is punishable by death.
2.Attempts to kill those sentenced to life imprisonment are punishable by death if the victim is injured by the attempt.
3.If an individual provides false evidence with the knowledge that it can lead to the conviction of someone belonging to scheduled caste or tribe for committing a capital offence on the basis of such evidence, will be punished with the capital punishment if it results in the conviction and execution of an innocent individual.
Offenders excluded from Capital Punishment:
(1) Minor: According to the law in India, a minor who is under the age of 18 at the time of committing a crime isn’t executed.
(2) Pregnant Women: Clemency must be granted to a pregnant woman sentenced to death according to a 2009 amendment.
(3) Intellectually Disabled: According to the Indian Penal Code, a person while committing a crime who was mentally ill can’t be executed.
Some relevant cases
Jagmohan v. State of U.P[4]
The Supreme Court held that Articles 14, 19 and 21 did not violate the death penalty. The judge made the choice between the capital punishment and life imprisonment based on circumstances, facts, and the nature of the crime. The decision to award the death penalty was made in accordance Article 21.
Rajendra Prasad v. State of U.P[5]
The judge held that unless it was shown that the criminal was dangerous to society, capital punishment can’t be justified. It was also held that the death penalty for the murder offence awarded pursuant to I.P.C. Section 302 did not violate the constitution’s basic feature.
Conclusion
It is a controversial topic which is related to social and moral aspect. When we look at the national crime statistics, capital punishment has not proved to be deterrent for doing offences and the crimerates have been continue to rise.
Proper investigation must be undertaken before executing a person, it is permanent in nature and irreversible, thus it is important that all relevant materials are accounted for and if there is even a small percentage of uncertainty, such punishment ought not be awarded.
[1]Aditi Agarwal, Death Penalty: An Overview Of Indian Cases, Academike, (February 23, 2020 1:33 PM),
[2]Roger Hood, Capital punishment, Encyclopedia Britannica,(February 23, 2020 1:47 PM),https://www.britannica.com/topic/capital-punishment
[3] CAPITAL PUNISHMENT, Legal Dictionary,(February 23, 2020 2:04 PM), https://legaldictionary.net/capital-punishment/
[4]1973 1 SCC 2, (February 23, 2020 2:16 PM), https://indiankanoon.org/doc/1837051/
[5]1979 3 SCC 646(February 23, 2020 2:28 PM),https://www.casemine.com/judgement/in/5767b0fde691cb22da6d017d
Lawcutor 