CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT

All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. Most systems of religion or ethics teach that bad actions lead to bad consequence. There are two main reasons for inflicting the punishment. One is the belief that it is both right and just that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages others from doing wrong. The death penalty also rests on the same proposition as other punishments. Because of its drastic and irrevocable nature, it is even more open to debate over its fairness, appropriateness and effectiveness than other punishments. The proponents of death penalty believe that it is an effective way to stop crime. They focus on the death penalty as a deterrent or something that will stop or lesson crime. They believe that the death penalty brings the most justice to the victim of a heinous crime.

Death penalty has been a mode of punishment since time immemorial. The arguments for and against has not changed much over the years. Crimes as well as the mode of punishment correlate to the culture and form of civilization from which they emerge. At this point of time when the issue [whether capital punishment must be abolished or not] is still raging, it will be appropriate to remind ourselves as to how the legislatures and the apex Court have dealt with this issue every time it has come up before them. Another issue is regarding the extent of judicial discretion.

MEANING OF CAPITAL PUNISHMENT:

According to oxford Dictionary, Capital punishment is the legally authorized killing of someone as punishment for a crime.[1] Capital punishment is the death sentence awarded for capital offences like crimes involving planned murder, multiple murders, repeated crimes; rape and murder etc where in the criminal provisions consider such persons as a gross danger to the existence of the society and provide death punishment.[2] Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime.

CAPITAL PUNISHMENT: AN EFFECTIVE DETERRENT TO CRIME:

There is a great deal of debate over how powerful a deterrent capital punishment is. Most of us have an instinctive feeling that the death penalty must deter, at least to some extent. Deterrence is one of the fundamental reasons for punishment of any kind. Since death is considered the harshest punishment available under the law, it seems logical that it must also be the most effective deterrent to crime. The English barrister Sir James Stephen remarked, “No other punishment deters men so effectually from committing crimes as the punishment of death.” “In any secondary punishment, however terrible, there is hope; but death is death; its terror cannot be described more forcibly.”[3] The federal prisons now have custody of a man sentenced to life imprisonment, who, since he has been in prison, has committed three more murderers on three separate occasions- both of prison guard and inmates. There is no further punishment that he can receive. In effect, he has a license to murder.”[4]

ORIGINS OF CAPITAL PUNISHMENT:

The death penalty was prescribed for various crimes in Babylon at least 3700 years ago. Some of the ancient society imposed it only for the most heinous crimes and some imposed it for minor offences. For example, under Rome’s law in the 5^th century B.C., death was the penalty for publishing “insulting songs” and disturbing the peace of the city at night.[5] Under Greece’s Draconian Legal Code in the 7^th century B.C., death was the punishment for every crime. Beginning in ancient times the executions were frequently carried out in public. Public executions provided benefits for everyone. For the surviving victims of the condemned criminals, the execution provided the grim satisfaction of witnessing the final punishment of those who had wronged them. For the authorities, executions served as graphic demonstrations of their determination to protect the public safety. Public executions even helped the authorities to do their jobs serving as grisly object lessons for potential wrongdoers.

The extent or the nature of the punishment depended as much on the social standing of the criminal as on the nature of the crime. The commoners were executed much more often than nobles. Minorities and foreigners were treated more harshly than members of the dominant group. The methods of execution were also varied. The common modes of inflicting death sentence on the offender were drowning, burning, boiling, beheading, hurling the offender from rock, stoning, strangling, impelling, amputating, shooting by gun or starving him to death. Hanging and beheading were the most common methods of execution in Europe and Great Britain. At present the common modes of execution of death sentence are asphyxiation, electrocution, guillotine, shooting and hanging. The method of execution by electrocution was first used at Auburn State Prison, New York on 1890 and is now being extensively used in USA, UK, USSR, Japan and other European countries. The use of Guillotine for execution was introduced in France in 1792. The method of hanging the condemned prisoner till death has been commonly in use in almost all the countries since ages. In India public hanging is now held to be unconstitutional.[6]

CAPITAL PUNISHMENT IN VARIOUS COUNTRIES:

·     CAPITAL PUNISHMENT IN AMERICA: In the wake of the American Revolution, the U.S. Constitution gave both the states and the federal government the right to set their own criminal penalties. The very first congress of the United States passed federal laws making death penalty for rape and murder and other crimes. Although the death penalty was widely accepted in the early United States but its approval was not the universal. Some of the people viz. Cesare Beccaria, Thomas Jefferson, Dr. Benjamin Rush expressed serious doubts and objections and advocated that capital punishment might be abolished. And in 1917, the state of Missouri and the territory of Puerto Rico both abolished the death penalty. The opposition to the death penalty gathered strength again in the mid-twentieth century after the controversial executions of Willie Francis, Burton Abbot, Caryl Chessman and Barbara Graham.  Once again, several states either abolished or restricted the use of the death penalty.

In 1972, American abolitionists scored their greatest success. In the case of Furman v. Georga[7], the U.S. Supreme Court declared that the death penalty, as it was then carried out, was ‘cruel and unusual’ punishment, therefore it was unconstitutional. Four years later, the Court ruled in several cases. In Gregg v. Georgia[8], Supreme Court said that death penalties imposed in some states under new laws were constitutional. But the murder is a capital offence in all thirty-eight of the U.S. states that have the death penalty.

·         CAPITAL PUNISHMENT IN BRITAIN:

Hanging was the traditional form of capital punishment in England. However it was not the only one. In England beheading was normally reserved for the highborn and it was last used in 1747. Hanging was the most common method of execution in England from Saxon times until the 20th century. The last people to be hanged in Britain were two men, Peter Allen and Gwynne Jones who were hanged on the same day in 1964. In Britain the death penalty for murder was abolished for an experimental period of 5 years in 1965. It was abolished permanently in 1969. Free votes were held on the restoration of capital punishment in 1979 and 1994 but both times it was rejected.[9]

·         CAPITAL PUNISHMENT IN CHINA:

Capital punishment in the People's Republic of China is usually administered to offenders of serious and violent crimes, such as aggravated murder, but China retains in law a number of nonviolent capital offenses such as drug trafficking. The People's Republic of China executes the highest number of people annually, though other countries (such as Iran or Singapore) have higher per capita execution rates. Watchdog groups believe that actual execution numbers greatly exceed officially recorded executions; in 2009, the Dui Hua Foundation estimated that 5,000 people were executed in China — far more than all other nations combined.

·         CAPITAL PUNISHMENT IN INDIA:

Year 1975 and 1991, about 40 people were executed. Year 1995-2004 when there were no executions. Anti-death penalty activist dispute those figures, claiming much higher numbers on Death Row and actual executions. In August 2004, a 41-year old former security man, Dhananjoy Chatterjee, was executed for raping and killing a 14 year old schoolgirl in Calcutta. This was the country’s first execution since 1995. In 2005, about a dozen people were on the country’s Death Row.

It was reported in 2006 that the number of mercy petitioners with President Abdul Kalam from convicts on death row stands at 20, including 12 were submitted when K.R. Narayanan was the president.[10]

Mode of Execution:

The execution of death sentence in India is carried out by two modes namely hanging by neck till death and being shot to death. The jail manuals of various States provide for the method of execution of death sentence in India. Once death sentence is awarded and is confirmed after exhausting all the possible available remedies the execution is carried out in accordance with section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck till death. Section 354(5) of Code of Criminal Procedure says, “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.” It is also provided under The Air Force Act, 1950, The Army Act 1950 and The Navy Act 19572 that the execution has to be carried out either by hanging by neck till death or by being shot to death.

CAPITAL PUNISHMENT UNDER VARIOUS LEGISLATIONS IN INDIA:

Capital punishment is prescribed as one of the punishments in various provisions of the Indian Penal Code 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic Substances Act 1985, and The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, 1987, The Air Force Act, 1950, The Army Act 1950 and The Navy Act 1957. In the Prevention of Terrorism Act, 2002 also, there was a provision for death penalty for causing death of persons using bombs, dynamite or other explosive substances in order to threaten  the unity and integrity of India or to strike terror in the people. It is also interesting to note that under the Arms Act, NDPS Act and the Scheduled Caste and Scheduled Tribes Act, Capital Punishment is the only punishment for the offence covered by those sections, thus leaving no room for the judiciary to exercise its discretion. It is doubtful whether these provisions can stand the test of the constitutional validity in the light of the decision in Mithu v. State of Panjab[11] Because in this case section 303 of the Indian Penal Code¹⁶ was struck down as violative of Article 21 and 14 of the Constitution of India, as the offence under the section was punishable only with capital punishment and did not give the judiciary the power to exercise its discretion and thus resulted in an unfair, unjust and unreasonable procedure depriving a person of his life.

ABOLITION OF CAPITAL PUNISHMENT:

There are four groups of the countries regarding the abolition or retention of the capital punishment. These are:

1.      ABOLITIONIST FOR ALL CRIMES:

Countries whose laws do not provide for the death penalty for any crime:
Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Belgium, Bhutan, Bosnia-Herzegovina, Bulgaria, Burundi, Cambodia, Canada, Cape Verde, Colombia, Cook Islands, Costa Rica, Cote D'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Haiti, Holy See, Honduras, Hungary, Iceland, Ireland, Italy, Kiribati, Kyrgyzstan, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Rwanda, Samoa, San Marino, Sao Tome And Principe, Senegal, Serbia (including Kosovo), Seychelles, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, Timor-Leste, Togo, Turkey, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Uzbekistan, Vanuatu, Venezuela.

2.      ABOLITIONIST FOR ORDINARY CRIMES ONLY:

Countries whose laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances:
Bolivia, Brazil, Chile, El Salvador, Fiji, Israel, Kazakhstan, Latvia and Peru.

3.      ABOLITIONIST IN PRACTICE:

Countries which retain the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice in that they have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions. The list also includes countries which have made an international commitment not to use the death penalty:

Algeria, Benin, Brunei, Burkina Faso, Cameroon, Central African Republic, Congo (Republic of), Eritrea, Gambia, Ghana, Grenada, Kenya, Laos, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Morocco, Myanmar, Nauru, Niger, Papua New Guinea, Russian Federation, South Korea, Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga, Tunisia, Zambia.

4.      RETENTIONIST:
Countries and territories that retain the death penalty for ordinary crimes:
Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, Chad, China, Comoros, Democratic Republic of Congo, Cuba, Dominica, Egypt, Equatorial Guinea, Ethiopia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Mongolia, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan, Thailand, Trinidad And Tobago, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen, Zimbabwe.

DEBATE OVER ITS ABOLITION AND RETENTION:

“An eye for an eye will make the whole world blind.”

                                                                                                         ---Mahatma Gandhi

UNITED NATIONS’ VIEW:

The United Nations High Commissioner for Human Rights called a meeting in early July to commemorate the fifth anniversary of the General Assembly’s vote in favor of a moratorium on the death penalty. The Secretary-General, Ban Ki-moon, delivered some remarks in which he reminded listeners that more than 150 countries have either abolished capital punishment or restricted its application. Some 32 states retain the death penalty in case of drug-related crimes and last year only 20 countries actually conducted executions. In the United States, 17 states have done away with the death penalty.

The right to life is the most fundamental of all human rights.  It lies at the heart of international human rights law.  The taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. Where the death penalty persists conditions for those awaiting execution are often horrifying, leading to aggravated suffering.  Information concerning the application of the death penalty, including secret trials and executions, is often cloaked in secrecy. And it is beyond dispute that innocent people are still put to death.

The United Nations system has long advocated abolition of the death penalty. Yet the death penalty is still used for a wide range of crimes that do not meet that threshold.

ARGUMENTS FOR THE RETENTION[12]:

1.    Capital punishment acts as a deterrent. If the death sentence is removed, the feat that comes in the mind of people committing murders will be removed. “Do we want more of murders in our country or do we want less of them?”[13] All sentences are awarded for security and protection of society, so that every individual may live in peace. Capital punishment is needed to ensure this security.[14]

2.      Elimination of the criminals. When the public peace is endangered by certain particularly dangerous forms of crime, death penalty is the only means of eliminating the offender.[15]

3.      Possibility of repeated murders. Society must be protected from the risk of a second offence by a criminal who is not executed and who may be released, after release may commit murder again.[16]

4.      Condition in India. In countries where capital punishment has been abolished, the figure of homicide is very low; four in a million, or even less than that.[17]

5.   Public opinion. Public opinion is substantially in favor of capital punishment, and it would be unwise to abolish capital punishment contrary to the wishes of the majority of the citizens.

6.  Prison administration. Keeping murderers alive in the prison greatly complicates the work of prison administration.[18] If all convicted murderers were imprisoned, safety of the prison staff and the general public from the dangerous prisoners would be at risk.[19]

7.    Saving of funds. Money of the citizens should not be spent on maintaining people who cause great harm.[20] The taxpayers should not be called upon to pay for the maintenance of anti-social criminals for an indefinite or for a very long period.[21]

8.  Proportionate to crime. The punishment should bear a just proportion to the crime. Therefore, capital punishment is the only fit punishment for those who have deliberately violated the sanctity of human life.[22]

9.      More humane. Capital punishment in a painless and humane form is less cruel than imprisonment for life.

10.  No miscarriage of justice. If there is miscarriage of justice in one or two cases, the higher courts can be approached. The whole machinery of the Government would be there to protect the life of a person who is really innocent.

ARGUMENTS FOR THE ABOLITION[23]:

1.   Capital punishment should be abolished because it is a legalized, revengeful and cruel destruction of God’s most wonderful creation, the human being.

2.     Immoral. Capital punishment is morally indefensible. Society has no right to take the life of any person. It is morally wrong for the State in the name of the law to take the life deliberately.[24] In eliminating the criminals, it is stated; the State does not erase the crime, but repeats it.[25]

3.  Inhuman. Capital punishment is essentially inhuman. Death penalty is a form of cruelty and inhumanity unworthy of a humane civilization; even the most efficient methods of execution do not result in instantaneous and painless death.[26] Humanity demands that capital punishment comes to an end.[27]

4.      Non-violence. Indian ideology is based on non-violence. Indian tradition is based on reformation of the mind and spirit. Where it was the opinion that only God could take away life given by him. Therefore a murderer should be sent to a penitentiary and there given every chance of reforming himself.

5.      Irrevocable. Capital punishment is irrevocable. If an innocent person is sentenced to death and executed, the greatest injustice results.[28] When as a result of an erroneous conviction, a man is sent to prison, he can be compensated. But death admits of no compensation.[29]

Sometimes there may be a mistaken view of the law. Thus, it is argued that a person was sentenced to death in one Madras Full Bench case, on a confession made by him, to an investigating officer. Ten years later, the Privy Council, in a similar case, held that this case was wrongly decided, and that the confessions ought not to have been admitted in evidence.[30]

6.      Unjust. The sentence of death injures the family of the offenders, and thus imposes suffering on persons who have done nothing to deserve the suffering. 

7.   Unequal application. Death penalty is applied unequally. Some persons who have not sufficient financial means to defend themselves or are morally unable to do so, suffer.[31] The penalty, therefore, which should be the expression of absolute justice, often leads in practice to injustices against individuals.

8.     An eye for an eye. It will suffice to note that the system of individual revenge is no longer recognized. The punishment should not be given to any offender having this principle in the mind. The court should adopt the retributive approach in these cases.

CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT:

Article 21 of the Constitution of India provides Protection of life and personal liberty to every people. And the deprivation of life of anyone is unconstitutional under Article 21. It also said that No person shall be deprived of his life or personal liberty except according to procedure established by law, it means, if there is a procedure then state can deprive a person from his life.

In many countries there has been a demand for abolition of the death penalty and in some this demand has been accepted and death penalty has been abolished. In India, too there are many social workers including lawyers and judges who have voiced this demand. Prominent amongst them are Bhagwati J. and Krishna Iyer J. both former judges of the Supreme Court, Krishna Iyer J. very recently while addressing a Human Rights organization strongly expressed himself in favor of the abolition of death penalty.

Justice A.K. Ganguly of the Supreme Court has termed the award of death sentence as "barbaric, anti-life, undemocratic and irresponsible" which is "legal" in the prevailing judicial system. The doctrine of the crime falling in the 'rarest of rare' category in awarding the death penalty was a "grey" area as its interpretation depended on individual judges. He cautioned that before giving death penalty, a judge must be "extremely careful" and weigh "mitigating and aggravating circumstances".[32]

So far as constitutionality is concerned it has to be considered in the light of the provision of the Constitution of India. In India, through Article 21, the State is given the power to take away the life of a person through a procedure established by law.  This means that through there is a procedure established by law, state can deprive a person of his life. Through judicial pronouncements, this procedure is interpreted to mean, a fair, just and reasonable one. Though the constitutional validity of the death punishment was challenged as violative of Article 19 and 21 of the Constitution of India, because it didn’t provide any procedure to the Court upheld the validity of death sentence. Since the procedure by which the life is taken is fair, just and reasonable. The judges are given ample power to exercise their discretion to award death penalty as against imprisonment for life.

The question of constitutional validity of death penalty has been raised before the Supreme Court of India more than once. In case of Jagmohan Singh v. State of Uttar Pradesh[33], the constitutional validity of death penalty was upheld by the Supreme Court by a unanimous decision of the five judges composing the Bench.

In case of Rajendra Prasad v. State of Uttar Pradesh[34], Krishan Iyer J. said that death penalty directly affects the life of the people guaranteed under Article 21 of the Constitution. But it has been provided by law and there is nothing like due law in Article 21. Therefore, it is valid. He further said that to impose death penalty the two things must be required:

ü               The special reasons should be recorded for imposing death penalty in a case.

ü               The death penalty must be imposed only in extraordinary circumstances.

The question was again considered by a five judges Bench in case of Bachan Singh V. State of Punjab[35], particularly in view of certain observations of Krishan Iyer J. In Bachan Singh case judges considered the social, ethical and even spiritual aspect of death penalty while upholding the constitutional validity thereof.

But by a majority of four to one, Bhagwati J. in Bachan Singh case recorded a dissenting note. Bhagwati, J. in his dissenting judgment has given a number of reasons for holding that death penalty is not only unconstitutional being violative of articles 14 and 21 but also undesirable from several points of view". One of the reasons given by him is that death penalty is irrevocable because the execution of the sentence of death in such a case makes miscarriage of justice irrevocable.

He referred to the Book Death Penalty in America by Hugo A. Bedau which catalogues 74 cases in which it has been responsibly charged and in most of them proved beyond doubt that persons were wrongly convicted and executed though innocent. It is no doubt true that conviction and execution of an innocent man for murder shocks the human conscience and it is also true that human judgment is not infallible but I may respectfully point out that the criminal law in our country is heavily loaded in favor of the accused and an erroneous conviction is not at all possible. In England and America the trial is by jury and it may with utmost honesty more readily record an erroneous verdict of guilty than a judge. A jury is very much influenced by the consideration that the interests of the society demand that no offender who perpetrates a shocking crime should escape the clutches of law and the punishment he deserves. A judge's approach in our country is more cautious. He is guided by the principle that hundred guilty persons may escape but not one innocent person should be convicted.

NO CHANCE FOR INJUSTICE:

It is on the basis of this principle that in India benefit of a reasonable doubt is given to the accused even in cases of murder. A defense counsel uses all his skills and ingenuity to create a doubt in the mind of the judge and he gets repeated opportunities to do so. If he fails in the trail court, he makes a second attempt in the High Court and a third one before the Supreme Court. Thus the possibility of an erroneous conviction is wholly excluded.

Apart from this the power of pardon, remission and commutation of sentence vested in the Governor and the President furnishes another safeguard against a judicial error in the matter of punishment. The whole matter is examined with great care and caution while exercising the said power, keeping in view the interests of the individual on the one hand, and interests of the society on the other. The President is the elected head of the State and is expected to give effect to the will of the people. Thus a convict cannot be executed unless the extreme penalty in a particular case is not only considered proper in a judicial verdict but is also in consonance with the wishes of the people in general. I need not refer to other aspects of the matter which have been dealt with at length by Sarkaria J, in his elaborate majority judgment but I would like to stress one aspect of the matter. I fail to see why too much importance should be attached to the life of an individual who has been found guilty of a heinous offence when the interests of the society demand that death penalty should be awarded to him.

Often in the event of a riot the police are required to open fire in the interests of society to disperse an unruly mob indulging in arson and violence to restore order if other methods fail. In such a firing even innocent persons are killed. Shall we say that the police should never resort to firing to quell a riot or to disperse a riotous mob merely because there is a risk of innocent persons being killed? No one will ever say that. If so why should we have qualms of conscience in awarding death penalty to an offender in extreme cases where the interest of the society demands it. The reformative aspect of justice is no doubt very important. But we do come across criminals who are beyond redemption.

Even Krishna Iyer J. who strongly advocated the social and human aspect of law conceded in Rajendra Prashad's case that death penalty may be legally permissible when he can never be reformed.

Moreover, the Criminal Law provides ample safeguards. Under section 354(3) of the Code of Criminal Procedure the Court has to give special reasons for awarding the death penalty. Section 235(2) provides a hearing after conviction on the question of sentence. Hanging of a murderer gives no pleasure to a judge. He merely discharges a painful duty while awarding the death sentence in the interests of the society. We can, therefore, repose trust in the judges that they would discharge this onerous function with scrupulous care and human concern bearing in mind that imprisonment for life is the normal penalty for murder while death penalty is to be awarded only where the offender appears to be extremely depraved and a potential menace to society. So far as the constitutional aspect is concerned very cogent reasons are given in the majority judgment for upholding the constitutional validity of death penalty.

To sum up, there can be no doubt about the constitutionality of the death penalty in our country. As regards its propriety in a particular case the matter has to be left to the discretion of the judge who has to bear in mind that normally imprisonment for life is the appropriate sentence for murder under section 302 IPC, particularly in the case of a woman. In the case of adult males death sentence may be awarded in cases where the murder and the entire circumstance of the case show that he is a potential menace to the society. The question of propriety of death penalty in a particular case has to be judged not merely from the point of view of the accused; the interests of the community as a whole must also be taken into consideration.

Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher Singh v State of Punjab[36] held that death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land.

The challenge touching the constitutionality of the death sentence also surfaced in Triveniben v State of Gujarat[37] and the Supreme Court asserted affirmatively that the Constitution does not prohibit the death penalty.

Section 303 of Indian Penal Code:

In case of Mithu v. State of Punjab[38], it was contended that mandatory sentence of death for murder committed by life-convicts under section 303 of IPC is violative of rights guaranteed under Article 14 and 21. Therefore, section 303 of IPC is unconstitutional not only for the reason that it is unreasonable and arbitrary but also because it authorizes deprivation of life by an unjust and unfair procedure. Section 303 of IPC provides punishment for murder by life convict-Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death." In this case Supreme Court strike down section 303 of Penal Code as unconstitutional and declare it void.

Delay in execution of the death sentence:

Delay in execution of death sentence is a factor which may be taken into consideration for commuting the sentence of death to life imprisonment. In the case of Triveniben v. State of Gujarat[39], the Supreme Court held that "....undue long delay in execution of the death sentence will entitle the condemned person to approach this court will under Art 32, but this court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process…..No fixed period of delay could be held to make the sentence of death in executable. If the Supreme Court finds the delay to be undue in the foregoing sense, the court would quash the sentence of death and substitute for it the sentence of imprisonment of life to that accused.

Procedure established by law in Article 21 means a procedure which is just, fair and reasonable. Hence, any circumstance which renders the sentence harsh, unjust or unfair, offends Article 21.[40] An undue long delay in execution of the death sentence after its confirmation (ss. 413-415, CrPC), for which the accused himself is not responsible, renders the sentence harsh and unjust as it causes additional torture and inhuman treatment.[41]

Rope- Hanging:

The question was arisen before the Supreme Court in Deena v. Union of India[42], whether the execution of death penalty by hanging by rope is constitutional or not?

Supreme Court held that the method prescribed by s. 354(5), Cr. P.C. for executing the death sentence does not violate the provision contained in Article 21 of the Constitution. The system of hanging by rope is in operation in large parts of the civilized world and there is a responsible body of scientific and legal opinion which holds that hanging by rope is not a cruel mode of executing the death sentence.

Public- Hanging:

Another question was arisen before the Supreme Court in Lachma Devi v. State of Rajasthan[43] whether for the execution of death penalty public hanging is constitutional or not?

For answering this question Supreme Court adopted liberal view and held that public hanging is not prescribed in the prison rules therefore it is unconstitutional.

PRINCIPLE OF RAREST OF RARE:

Now, the judiciary has evolved its own jurisprudence in evaluating which cases are to be considered as fit ones for awarding capital punishment. Thus capital punishment is awarded only in rarest of rare cases. The determination of this is very difficult. There are various decisions in which the determination of rarest of the rare was in question. The Court could not follow any uniform guideline to reach a conclusion, and the subjectivity of the judges also play a vital role in this determination. The death sentence should be imposed in the rarest of the rare case. The Supreme Court in Machhi Singh v State of Punjab[44] (1983) apex court laid down a few principles which were to be kept in mind while deciding the question of sentence:

Ø  Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

Ø  Are there circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offenders?"

RECENT RAREST OF RARE CASES OF CAPITAL PUNISHMENT:

Dhananjoy Chatterjee v. State of West Bengal & Ors.[45] The appellant, Dhananjoy Chatterjee was found guilty of offences punishable under Sections 376, 302 and 380 of the Indian Penal Code by judgment and was awarded death sentence by the session judge, confirmed by the High Court. A special leave petition was filed by the appellant. Leave was granted but the appeal was dismissed by the Supreme Court.

Sushil Murmu v. State of Jharkhand,[46]A young child of 9 years was sacrificed before Goddess Kali by the appellant for his own prosperity is what the prosecution alleges. The Supreme Court awarded death penalty to the accused.

State of U.P. v. Satish,[47] Stressing that leniency in punishing grave crimes would have serious consequences the supreme court has awarded the death penalty to a man for the rape and murder of a six year old girl.

Ajmal Kasab case[48], on 3 May 2010, Mumbai Special Court convicted Ajmal Kasab for murder, waging war on India, possessing explosives, and other charges. On 6 May 2010, the same trial court sentenced him to death on four counts and to a life sentence on five other counts. Kasab has been sentenced to death for attacking Mumbai and killing 166 people on 26 November 2008. He was found guilty of 80 offences, including waging war against the nation, which is punishable by the death penalty. Kasab's death sentence was upheld by the Bombay High Court on 21 February 2011. And on 29 August 2012 his death sentence was upheld by the Supreme Court also.

On October 5, 2012, Additional Sessions Judge Ramesh Kumar Singhal of Delhi Court handed down the death sentence to the five persons[49], who had mercilessly tortured and electrocuted the girl and her lover as they were opposed to her plan of getting married to the boy belonging to a Scheduled Caste.[50]

                                                                                           

---