CONSTITUTIONAL VALIDITY OF CAPITAL
PUNISHMENT
The constitutional validity of capital punishment has been highly
discussed since time immemorial and has always been subjected to
assertions and denials. This topic has always managed to raise controversy among
group of people coming in blatant support of it (the retentionists) whereas
there is another group which objects to it in its entirety (the abolitionists).
The important question here springs open to deciding what is the extent to
which capital punishment stands constitutional and what are the provisions provided
under the Indian Law which enshrines it with a strong backing. The main
objective of this article is to dig deeper into its depth and take the extra
mile into finally comprehending its existence so well rooted in the Indian Law.
The abolitionists always had the conviction that capital punishment crunches and violently takes
away the right of a person to life and his personal liberty. The accused is
ostracized from society in a manner that it takes away his zeal and enthusiasm
to celebrate the life in a human form. It is a serious violation of human rights
and must be curbed to let the corrective, preventative and reformative form of
punishment to come into existence and play a vital role in changing the society
for the better. The abolitionists also consider an eye for an eye an obsolete
way to seek justice which recede the nation from development, as crimes and
offences have not alleviated irrespective of the excessive deterrence created
to refrain people from taking law into their own hands.
However if we put our
thinking cap and enumerate the different aspects which are dealt before
granting death penalty we would be able to appreciate and comprehend why this
mode of punishment is essential to maintain the social order and create deterrence
which would not put the country in a backward motion but instead help it
progress in a more lawful, peaceful and organized fashion.
Section 53 of the Indian Penal code which list specified punishments have put death penalty in the first order. Death penalty mentioned under the code
are applicable only to the offences mentioned under the Indian Penal Code. The
Code has not penetrated deeper into the reformative and correctional
punishments. But, this does not justify the abolitionists to apprehend, as the
most gruesome form of punishment “The death sentence“is given only in
exceptional cases. What amounts to deciding exceptional cases can be construed
by scrutinizing cases acting as precedents and the provisions included in the
Law which cater to the understanding of its validity.
The Indian
Penal Code renders death sentence only under certain specified heads which are
as follows:
- · Waging war against the Government (section 121)
- · Abetment of Mutiny (Section 132)
- · Giving or fabricating false evidence with intent to procure conviction of capital offence(Sec 194)
- · Murder (sec 302)
- · Abetment of suicide of child or insane person(sec 305)
- · Attempt to murder by life convict if hurt being caused (sec 307)
- · Dacoity with murder ( sec 396)
- · Kidnapping for ransom ( Sec 364-A)
One of the
first leading cases which questioned the validity of capital punishment was
Jagmohan V/S State of U.P as it stated in its averment that capital
punishment were violative of article 14,19 and 21 of the Indian Constitution.
It questioned on the same line as in Furmon v/s Georgia (1972) a well known
American case which questioned constitutional validity of capital punishments
in the United States of America. Again, in Rajendra Prasad V/S Sate of U.P
Justice Krishna Iyer considered death penalty violative of article 14,19 and 21
of the Indian Constitution. However, in the most celebrated case of Bacchan
Singh V/S State of Punjab the Supreme Court held that death penalty is not
violative of article 14, 19 and 21 of the Indian Constitution but needs to be
awarded only in the rarest of the rarest cases. The Law commission objected to
the claims of the abolitionists and considered death penalty as an essential
requisite to protect the society and bring forth deterrence among people who
resort to taking away human life in the most gruesome and unfathomable manner.
Section 235(2) of the code of Criminal Procedure states that the Judge
must hear the accused on the quantum of sentence granted to him. This provision
provides for the accused to put forward his plea as to why he should not be
amounted to a quantum of punishment of the degree of death. This section also
adds to the advantage of the accused to plea to reduce the death sentence to
life imprisonment.
Consequently, the Criminal Amendment Act of 1955 made it mandatory under
section 354(3) of the code of Criminal Procedure to state special reasons for
granting death sentence. Omission of this crucial procedure leads to the
proceeding getting vitiated because, death penalty is granted only in
exceptionally rare cases and the power must be sparingly used with utmost
caution and great care.
In the similar order Section 366 of the code of Criminal Procedure states
that whenever a court of session passes a sentence of death, the proceeding
shall be submitted to the High Court and the sentence shall not be confirmed
unless confirmed by the High Court. Similarly Section 379 of the Code of
Criminal Procedure enunciates the provision of appeal against High Court in
certain Cases. When the High Court on appeal reverses an order of acquittal of
an accused into an order of conviction and sentences him to death or
imprisonment for life for a term of 10 years or more, the accused may appeal to
the Supreme Court with respect to the conviction
Apart from the armor granted under the procedural law the accused still
is entitled to his right to plea and prefer an appeal under Article 136 of the
Indian Constitution .The accused is also entrusted under Article 72 and 161
which provides the President and Governor power to Pardon or commutation of the
sentence, as the case may be.
The retentionists , legislatures,
administrators and Judges have always been of the strong opinion that death
penalty is punitive sanction to murder . Had death penalty not been inculcated
then the law would have precariously succumbed into the hands of people leaving
law and order to be played with to such an extent that the society would have
experienced the worst of barbarism and hooliganism. Fear, anguish and lament would have surfaced
the society leaving no room for the society to grow in functional and
regularized manner. But,it is also imperative to be understood that death penalty is sparingly
used with impeccable judicial reasoning and is granted only under the rarest of
the rarest cases which are heinous, gruesome, gory and the most grotesque
in the eyes of the law.
Maitreyi Raghuraman
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