Capital Punishment: A Crime for a Crime?

By Shruti Sharma, Campus Law Centre, Delhi University.

The killing of a human being by another human being is generally known as Homicide. But not all killings of human beings are Homicidal or rather illegal. Some killings are absolutely legal and enforceable and are better known as Capital Punishments, i.e., execution of the offender. The term Capital Punishment can be defined as a lawful infliction of death upon a person.

Capital Punishment, no doubt is the most brutal, extreme and serious type of punishment prescribed under the IPC. Considering “DEATH” as a punishment, the drafters of the IPC have categorically stated that death penalty ought to be very sparingly inflicted, i.e., only in exceptional cases, generally where the highest offence is committed against the state. Following are the offences where the death sentence can be imposed.

• • Wagering or attempting to wage war or abetting waging of war against the Government of India- Section 121.
  • Abetting mutiny actually committed-Section 132.
  • Giving or fabricating false evidence upon which an innocent person suffers death-Section 195.
  • Murder which may be punishable with death or life imprisonment-Section 304.
  • Abetment of suicide of a minor, or insane, or intoxicated person-Section 305.
  • Attempt to murder by a person under sentence of imprisonment for life, if hurt is caused-Section 307.
  • Kidnapping for ransom-Section 364-A.
  • Dacoity accompanied with murder-Section 369.
  • Criminal conspiracy to commit any offence punishable with death, if committed in consequence thereof for which no punishment is prescribed-Section 120B.

• Joint liability extending the principle of constructive liability on all the persons who conjointly commit an offence punishable with death, if committed in furtherance of common intention or common object of all-Section 34 and 149.
• Abetment of offence punishable with death-Section 109.

Whereas Section 54 of the IPC empowers the appropriate government to commute the death sentence to any other lesser sentence prescribed under the code. Similar kind of provisions are there in Section 433 and 433A of the CrPC 1973. It is pertinent to note that the government’s power to commute the death sentence is not absolute; it is not empowered to commute a sentence to less than 14 years, for weighty reasons, i.e., seriousness of the offence, as stated in the famous case,  Shidagonda Gandavar vs. State of Karnataka, AIR 1981 SC 764. The apex authority, i.e., the Constitution of India has empowered the President and Governor of the State, under Articles 72 and 161 respectively with the power to grant pardon, reprieve, respite, remission, suspend, or to commute the death sentence.

The number of people executed in India since Independence is still a matter of dispute; according to the statistics as per the official records only 52 people have been executed till date. However, research by the People’s Union for Civil Liberties (PUCL) indicates that the actual number of executions is much higher than the one provided by the official government; it disclosed approx 1422 executions took place from 1953-1963 alone. At least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to death (but not executed). As of July 2015, President Pranab Mukherjee rejected 24 mercy petitions including that of Yakub Memon.

Demand for retribution is not new. Death penalty is the ultimate assertion for heinous crimes. This explains the popular demand of death for rape in the wake of high incidence of rapes in the country. Capital Punishment has always been widely criticised by many human rights activists as infliction of the death penalty can be directly considered as a violation of Article 21 which provides right to life and liberty to every person. That is why the Constitution Bench of SC in Bachan Singh vs. State of Punjab AIR 1980 SC 898, made it clear that capital punishment can be given only in the rarest of rare cases. Only deliberate and gruesome crimes come within the scope of rarest of rare cases. Section 354(3) of the CrPC made the death sentence an exception and life imprisonment a normal punishment for heinous crimes like murder. This Section reversed the pre 1955 scenario where awarding of the death sentence was a normal routine. Now the Court that inflicts the death sentence is under mandate to record a special reason for passing of such sentence.

The constitutional validity of the death penalty was canvassed for the first time in Jagmohan vs. State of UP AIR 1973 SC 947, where the sentence of death was challenged as a violation of Articles 14, 19 and 21 of the constitution. Also, the execution of Dhananjay Chatterjee in 2004, for the rape and murder of a teenage girl, once again started a debate amongst the jurists and aroused public attention as to whether death sentence should be abolished, as it does not serve any purpose in view of the world wide trend towards its abolition. Death penalty is the ultimate assertion of  humanity’s worst crime. It is often said that it will be a mockery of justice, if offenders are permitted to escape the extreme penalty of law when faced with such evidence and cruel acts, to give a lesser sentence for the offender would be rendering the justice system of our country suspect. As a result, the common man will lose his faith in courts. The high demand for capital punishment suggests that a common man understands and appreciates the language of deterrence more than the reformative jargon.

Capital Punishment reinforces the idea of retribution justice, a mediaeval concept that must have no place in the civilised society. It is argued that a person, who has committed a serious crime such as murder, must be likewise deprived of life. But does that mean that a rapist should be raped or that a torturer should be tortured? Capital Punishment has no deterrent value; its use has not been shown to bring about a significant decrease in crime. It is perhaps the certainty of punishment that has the effect of deterring crime, not the quantum of punishment, also it is an irrevocable act; once carried out, it cannot be undone. Judges are men of the highest integrity and endowed with impartial attitude. They are most anxious to administer justice. But they are, after all, human beings, and they might sometimes commit an error of judgement and award death to one and life imprisonment to another in similar situations. In spite of their best efforts, there might be cases of miscalculation which sometimes is unavoidable. Death sentence is not a deterrent to the commission of offences, but is deterrent to convictions. It simply highlights the “EYE FOR AN EYE” philosophy.

“Capital Punishment is as fundamentally wrong as a cure for crime, as charity is wrong as a cure for the poverty”.