Nowadays, there have been many debates that whether death penalty or capital punishment should be abolished or the punishment should be retained in the country. The people who support abolishment of death penalty argue on the basis of unconstitutionality claiming that death penalty violates article 21 of the Indian Constitution that is right to life. It also violates the human rights of the convicts. The supporters of abolishment of death penalty raise a serious issue by questioning the society that “can the death penalty be reversed in case of wrong execution?” and also questioning the constitutionality of death penalty.
Nathuram Godse and Narayn Apte was the first case of hanging the convicts in independent India. They were the convicts in the Mahatma Gandhi Assassination case. Through this case a issue was raised that capital punishment is violating Article 21 of the Indian Constitution.
However, there are some people who claim that death penalty should be retained as in the constitution there is no provision which expressly says that death penalty or capital punishment is unconstitutional. There is no doubt that capital punishment violates Article 21 that is Right to Life but there is a provision in the Indian Constitution which states that every person is to be treated equally before law and also there is equal protection of laws.
The constitutionality validity of death penalty was challenged through various cases from time to time.
There was a unanimous judgement by a bench of five judges (Jagmohan Singh v State of U.P) stated that capital punishment is not violating Article 14, article 19 and article 21. The validity of the death sentence was challenged on the grounds of violation of Article 19 and article 21 because it did not provide any procedure. It was contended that Cr.P.C. was confined to only finding the suspects guilty and not to award death penalty. In other words, the Supreme Court judges have to make choice between Capital Punishment and Life Imprisonment depending upon the circumstances and evidences presented during the trials.
In (Bachan Singh v State of Punjab) five judge bench in the ratio of 4:1 (Bhagwati J. Dissenting) overruled the judgement of (Rajendra Prasad v State of UP) stated that death penalty is alternative punishment of murder is not unreasonable and hence it is not violating of article 14, 19 and 21. While Justice Bhagwati gave a dissenting judgement stating that death penalty is not only violating of article 14, 19 and 21 but also it is undesirable on various points.
Through (Machhi Singh v State of Punjab) the Supreme Court had laid various guidelines under which the capital punishment or death penalty could be imposed.
1. Manner of murder – Brutal and the crime led to protest in the society.
2. Motive- the crime was done out of meanness
3. Anti-social crime- the crime is committed against the minority group like SCs.
4. Magnitude of crime- multiple stabs to the victim
5. Personality of victim.
Through the various case laws cited above it is clear that death penalty is constitutional in India. India is the 78th country to allow capital punishment as a punishment for the rarest of rare cases. Capital punishment can also be imposed on special reasons if such reasons are present in the said circumstances. There were various attempts made by legislative to abolish death penalty. However, the attempts were failed attempts. The recent execution of death penalty took place in the Tihar Jail, Delhi of the convicts of Nirbhaya case.
The Nirbhaya case which is famously known as Delhi Gang Rape came into limelight of the media and social platform. Nirbhaya the victim of rape and her male friend boarded a bus at Munirka for Dwarka. The bus had six passengers including the driver of the bus. The couple had started doubting the passengers on board when the passengers started asking questions to them with respect to their relations and also the bus driver had deviated from the normal route. When the couple reacted to the driver regarding the deviation from the route then the passengers (convicts) started beating the male friend and also knocked him unconscious with the iron rod. Nirbhaya was dragged to the rear of the bus. She was brutally raped and beaten by the convicts with the iron rod. The driver continued to drive without stopping anywhere. The couple was thrown out of the moving bus and the couple was semi nude.
The couple was treated at Singapore hospital. The medical report of Nirbhaya clearly stated that she had injuries in her abdomen, genital parts, had bite marks all over her body and also flesh of her intestine was pulled out of her body. The female victim had to undergo various surgeries (around 5) along with various treatments. However, for a better treatment the victim was flown to Singapore but her health deteriorated on daily basis and she breathed last on 29th December.
The Delhi Police arrested all the six suspects within 24 hours. These suspects had also robbed a carpenter Ram Adhar just before committing this heinous crime. The charge sheet was filed and the suspects were tried. After victims demise one of the suspect Ram Singh had committed suicide in his cell due to guilt.
Out of all the suspects, one of them was a juvenile who was proved to be a minor by his birth certificate and school documents. The Juvenile Justice Board said that the suspect is to be tried under The Juvenile Justice Act, 2000 the accused was found guilty and was sentenced with 3 years of imprisonment including 8 months of stay in the remand during the trials.
The remaining suspects were tried for the charges of rape, kidnapping, murder and destruction of evidences. They were tried under fast track court and they were held guilty of rape, murder, unnatural offences and destruction of evidences. The convicts were sentenced with death penalty. The convicts filed an appeal in the High Court. The Hon’ble High Court saw that the accused were guilty and the crime fell under the rarest of rare case due to the intensity of crime and also various protests carried out in the society. The High Court upheld the judgement of the Fast Track Court. The accused were not happy with the judgement so, they filed an appeal in Hon’ble Supreme Court.
There were two appeals made in the Supreme Court. The first appeal was filed by convicts Mukesh and Pawan. The second appeal was filed by Vinay and Akshay. The plea was rejected by the Supreme Court on the ground that the case was a “barbaric crime” which shook the society’s conscience.
The convicts were not satisfied with the judgement of Supreme Court. The accused filed review petitions and curative petitions but the petitions were rejected. The accused were sentenced with death penalty. Muskesh and other convicts had filed a mercy petitions one after the other however; it was rejected by the President.
The convicts and their family had tried all the provisions in law to avoid the death penalty. Various death warrants were issued (around 4). The fourth death warrant stated that the execution was to take place on 20th March 2020 at 5:30 and this was the last death warrant issued against the convicts.
The society was extremely happy with the execution of death warrants of the convicts. The society was feeling safe as such heinous crimes would not be committed by any criminals as the execution of death warrants of these convicts led an example that the criminals committing such crimes will be dealt in the same manner as the convicts of Nirbhaya Case was dealt.
Capital punishments should not be abolished as capital punishment acts as a deterrent which means setting an example for other criminals and bringing change in the society. Through capital punishment the society can surely be safe as the convicts of any crime cannot commit any more crimes. There will be no chance that the convicts could be released from imprisonment and commit crime. The convicts should taste their own medicines and bare the pain (whether emotional or physical) which the victim has or had gone through.
- Soumya Swaroop
( Law student at Manipal University Jaipur )