“If we were to abolish death
penalty , I should like to see the first step taken by my friends the murderers.”
– Alphonse Karr
live in a society in which people of all types live. The situation of our
society has deteriorated a lot from past
to present. It shows the changed behaviour of people. .The main objective of
criminal law is to reform the offenders and not retribution.
ancient India during the Mughal rule ” an
eye for an eye , a tooth for a tooth” was
followed. It came from Mosaic Law in the Bible.
penalty has been a matter of debate for a long time. People are in favour of
abolishing it . The modern view is that it is wrong to kill another man , and
so it is equally wrong for the state to do so.
WHAT DO WE MEAN BY DEATH PENALTY?
penalty means punishment for the crime done by accused for which he is given
death. Crimes that result in death penalty are known as capital crimes or
capital offences. It has been practiced by most of the societies.
countries are actively practicing death penalty. 103 countries have abolished
it for all crimes and 50 countries have abolished it de facto. Only countries
like Iran , Saudi Arabia give death penalty to persons below 18 years of age.
HISTORY OF DEATH PENALTY
Mithu V State of Punjab1
the supreme court struck down section 303 of the Indian Penal Code , 1860
as violation of Article 14 and 21 of the Constitution of India.
December , 2007 India voted against United Nation’s resolution for moratorium
on death penalty.
NEED OF DEATH PENALTY:
is a great need for capital punishment. It is true that the aim of criminal law
is reformation and not retribution. But the crime rate is soaring out of
control. Murders are making cry our people and society. Even the offenders after spending their
punishment in jails , come out and commit big crime.
VARIOUS LEGISLATIONS STATING
has been prescribed in various sections of the Indian Penal Code, 1860 , The
Arms Act , 1859 ; The Narcotic Drugs and Psychotropic Substance Act , 1985 ;
the Scheduled Cates and Scheduled Tribes (Prevention of Attrocities) Act ; the
Air Force Act ,1950 ; etc.
of life and personal liberty is given under Article 21 of the Constitution of
India which is the source on the basis of which other laws are made.
Jagmohan Singh V State of Uttar Pradesh2
the apex court upheld the constitutional validity of death penalty.
Rajender Prasad V State of Uttar Pradesh3
, Krishna Iyer J. observed that
death penalty directly affects the life of the people. There is nothing like
due law in Article 21.
Singh V State of Punjab4
judges considered the social ,
ethical aspects of death penalty while upholding its constitutionality.
Article 72(1)5 of
the Constitution of India states that:
Power of President to grant pardons, etc, and to suspend,
remit or commute sentences in certain cases.
RAREST OF THE RARE CASES:
Death penalty is not given in all the
crimes. For example if a person commits theft , burglary etc then he is not
given the punishment of death penalty. There has been a lot of controversy on
the issue that which cases are rarest of the rare and the punishment of death
penalty should be given in them.
Rarest of the rare in simple terms means
that the crime has been committed in the manner in which it could not be
thought of , a sort of heinous act , an act which puts a dent on the humanity ,
which shakes the soul of the person. Example –Nirbhaya rape case.
There has been a lot of cases in which
the court has declared the crime as the rarest one.The landmark cases were
Ranga Billa case , Indira Gandhi and Rajiv Gandhi Assassination case , Lakshman
Nayak case etc.
Chatterjee V State of West Bengal and Ors6
the appellant was guilty under section 376 , 302 and 380 of the Indian
Penal Code. He was awarded death penalty by the Sessions Judge.
Murmu V State of Jharkhand7
a young child of 9 years was
sacrificed before Goddess Kali . The Supreme Court awarded death penalty.
ABOLITION OF DEATH PENALTY:
General of United Nations , Ban-Ki-Moon said , ” I recognize the growing trend in international law and in national
practice towards a phasing out of the death penalty.”8
United Nations General Assembly made first step towards it in the year 1948 by
adopting Universal Declaration of Human Rights (UDHR). It advocated strongly
the concept of right to life.Article 3 and 5 talk about inhumane treatment or
punishment. India has retained death penalty on the ground that it will be
awarded in rarest of the rare cases.
to Amnesty International 131 countries have abolished death penalty.
Dhana V State of West Bengal the restrictive interpretation of the ‘rarest of
rare’ term was brought out.
accused raped and murdered an 18 year old girl. He was found guilty under
sections 302 , 376 and 380 of the Indian Penal Code , 1860 and awarded death
sentence by the Sessions Judge.The High court confirmed the death sentence. It
was also confirmed by the Apex Court.
Panchi V State of Uttar Pradesh9
it was observed that brutality may
be factor of rarest of rare case but it is not the only factor.
case of Swamy Shraddananda and murali
Manohar Mishra V State of Karnataka10
is a case which depicts restricted interpretation of rarest of rare
category. It was the first time that court decided to award life imprisonment
by altering period of punishment.
to life is the fundamental right laid down in the constitution.This plays an
important role in debate against death penalty.
Bills to abolish death penalty in
first effort was made in 1944 in Travancore which was reintroduced in 1950.
1956 , a bill was introduced in Lok Sabha but was rejected in 1961.
present capital punishment is given in India is given for seven crimes which
includes murder , war against state , false evidence which results in capital punishment
to an innocent person , instigating a minor or an insane person to commit
suicide and leaking out secrets to other countries.
types of persons are exempted which includes children below 15years of age ,
pregnant woman , mentally deranged persons
and persons above 70 years of age.
as a penalty has plagued human mind. Death sentence should fulfill the
conditions of protection of human rights in Criminal Justice Administration in
death sentence of Dhananjoy Chatterjee and Kasab gave new impetus.
sentence should be given in the rarest of the rare cases like case such as
Nirbhaya , etc.
of human rights is of great importance. One’s life , dignity and personal
liberty should also not be deprived. But to protect society giving punishment
to offenders is necessary. It is true that our aim should be reformation but if
reformation does not work then retribution should be taken into account.
penalty cannot be abolished in totality. Otherwise it will be difficult to live
in the society as crime rates would reach its peak.
“Don’t see anything as an obstacle
, see everything as a stepping stone to victory.”
1 Mithu V State of Punjab (AIR1983
Singh V State of Uttar Pradesh (AIR1973 SC 947)
Prasad V State of Uttar Pradesh (AIR1979SC916)
Singh V State of Punjab (AIR1980SC898)
5 Article 72(1) of Constitution of
Chatterjee V State of West Bengal and Ors (2004)9SCC751
Murmu V State of Jharkhand (AIR
V State of Uttar Pradesh 1998 CriLJ 3305
10 Swamy Shraddananda and murali Manohar
Mishra V State of Karnataka (2008)
13 SCC 767