Constitutionality Of Capital Punishment

Younis Ahad
The horrific gang rape in Delhi, 2012 shook the whole nation and invited the sharp reaction from international level as well. People from all the quarters cried for exemplary punishment for the rapists and finally after a considerable period of time , all the convicts were sent to gallows , giving a relief to the victims family and women folk as a whole would probably fell secure and safe now. Well the debate around this death sentence goes long ago, there are different views presented, some argue abolition and some retention although both justify their position. The question which again and again is raised that is how far it is constitutionally valid? Does it serve any end? Well I would go out of my way to answer the said questions, would also present its image at international level. As rule punishability by and large depend upon the degree of culpability of the criminal act and the detriment it is supposed to do in society. The criminal has to pay a huge cost (Suffering) for that act which will deter or desist other criminals that is punishment will set an example for others, to my mind a person who eliminates any innocent person or does anything which poses massive damages to the society, it is lawful to forfeit the life of that person by way of capital punishment it serves an end to justice and at the same time it is the requirement
Constitutional View : Article 21 of the constitution says that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. This in other words means a state can deprive or take away a life but there should be a procedure established by law, however It has to satisfy two conditions there must be law secondly there must be a procedure prescribed by that law provided that procedure is just, fair and reasonable. What is just. Fair and reasonable depends on the case and can be determined by the court. In A.K Gopalan case “procedure established by law” was given a narrow interpretation but subsequently in Maneka Gandhi case the said expression was imparted wide interpretation and was held that procedure should not be fanciful, oppressive and arbitrary. In the case of Jagmohan sing vs. State of UP the court held that the capital punishment was not violative of article 14 , 19 & 21 of the constitution and therefore valid. In addition to this, the court in the Bacchan Sing vs State held that the provision of the death sentence is not violative of article 21 of the constitution. It recognizes the right of the state to deprive a person of his life in accordance with the procedure established by law. Thus in simple words capital punishment is still relevant in the eyes of law
Death penalty in fact serves an end to justice, it commands obedience to the law , the recent execution in Nirbhayas case would set an example particularly for hardened criminals .
Historical Overview : In British India’s legislative assembly , the issue of capital punishment was raised in 1931 for the ist time , one of the members soft abolish the same for the offences under IPC but his move was defeated. At the time of the dependence India retained several laws including capital punishment for the offences under IPC 1860. The criminal law Amendment Act in 1955 clause 3 the judge has to state the reasons for awarding the death sentence. In 1967, 35th Law Commission Report has argued for retention of the capital punishment and stated the retribution should not be understood as an eye for an eye but a public denunciation of crime. It also said that there are individual who are wicked and cruel are incapable of reformation. Afterwards came the doctrine of rarest of rare cases thus confined its application.
International Scenario: Internationally countries are divided on death penalty for instance abolitionists for all crimes, abolitionists for ordinary crimes, abolitionists de facto and receptionists. There are 140 countries that have abolished and 58 countries are regarded as religionists, the countries include India, china, United States. Sri Lanka despite long civil war retained moratorium on the penalty. In India project 39A of the National Law University which publishes death penalty reports , as per this project India has executed 755 persons since independence , UP has carried highest number of executions at 366 also Bareilly District Jail in the state has carried out 130, the highest in all jails , though the project has try its best to highlight the exact number of executions but still there is no certainty in its figures. Death penalty in fact serves an end to justice, it commands obedience to the law , the recent execution in Nirbhayas case would set an example particularly for hardened criminals . Realizing the need of the same India has limited it’s application for the offences under section 121 (waging war against state) section 132 ( abetment of mutiny) section 302 (murder) section 376A (rape & injury which causes death and leaves the women in vegetative state ) section 376E (certain report offences in the context of rape) and section 376AB ( rape on a women under 12 years age ) it is a recent amendment in the criminal law. In addition to it the government should implement such laws in letter and spirit, and also against those who misuse their position and power
(Author is a student of law. Views are his own [email protected])