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Death penalty is the execution by a state to the convict for committing an offence. The execution is done by lethal injection, shooting or hanging. The capital punishment of death given by the court and execution is ironical in a state which protects the vary basis of human right that is the right to life.
For the rarest of rare crime the capital punishment is given and the state ensures that the wrong doer must be punished. But the courts have an idea of not giving the punishment in the exceptional cases only. The capital punishment is given only for the cases of the rarest of rare. The court has laid down these rules and criteria of giving the capital punishment in the cases of heinous crimes. However, the question is whether capital punishment can be done away with in India altogether. Several countries have abolished the capital punishment as it is against the basic human rights.
Death penalty – An overview
A death penalty is given by state for the execution of a convict in a particular case which imposes death penalty on the convict by the provisions of law on day of committing of crime.
The penalty the death is the highest punishment given in a law. It gives the State a right over one’s life. The execution is done by methods like beheading, electrocution, hanging ,lethal injection and shooting.
Mental stability and death penalty
In the recent Nirbhaya case, the Delhi high court declined to entertain a plea seeking directions to the NHRC to intervene and enquire into mental and physical state of the four death row convicts. The contention was that the four convicts were kept in the solitary confinement under fear of the death which can affect the mental status and stability. Also one of the convicts plea was rejected by the court as he was contended to be mentally instable but the court held him to be fit and his mind is sound. The psychologist checked all four convicts and held them to be fine.
The constitutional validity of capital punishment was challenged in the landmark judgment of Jag Mohan vs state of Uttar Pradesh, in which the Hon’ble Supreme Court upheld its validity,
stating that capital punishment itself was not unreasonable per se. Its abolition would not be in the public interest, hence the punishment of death penalty does not violate Article 19 of the Constitution. However, a catena of judgements has held that capital punishment is violative of Article 21 of the Indian constitution, which protects right to life and personal liberty.
In the case of Bachan Singh v. State of Punjab, the Court observed that Section 354(3) CrPC is part of the due process framework on the death penalty. Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty.
The general rule since Bachan Singh was that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
Doctrine of rarest of rare
The doctrine of rarest of rare was stated in the landmark judgement of Bachan Singh v State of Punjab, the constitutional validity of the death penalty was upheld by majority of 4 : 1 that death penalty must be awarded in the rarest of rare cases.
Later, in the case of Macchi Singh v state of Punjab, the court held that some categories expanded the criteria of rarest of rare. In the case of Santosh Kumar Bariyar v State of Maharashtra, it was held that the life imprisonment is a rule and death punishment is an exception. In the case of Prajeet Kumar Singh v State of Bihar, the court laid down the rarest of rare criteria ‘when a murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
International trends regarding death penalty
Universal Declaration of Human Rights (UDHR)
- Article 3 provides that everyone has the right to life, liberty and security of person.
- Article 5 says that no one shall be subjected to torture to cruel, inhuman or degrading treatment or punishment.
- Article 11 provides that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trail at which he has had all the guarantees necessary for his defence.
Amnesty International opposed capital punishment in all cases without exception, regardless of who is accused, the nature or circumstances of the crime, guilt or innocence or method of execution.
In many countries, the internationally recognised World Day against the Death Penalty is observed on Oct. 10. In 91 countries death penalty was abolished in 2007. Today, there are 106 countries which have abolished death penalty right now.
Death penalty in INDIA – The debate
The idea of the rarest of rare cases is the one which not only punishes the convict of a heinous crime but also deters others from committing the same crime. However, the idea of correction and reformation need not be solved by death alone. The life imprisonment is a self-realization of one’s own deeds which is also an essential part of reducing and correcting the people.
In the most heinous cases the crime is done by a person without thinking twice. The rights of victim are cruelly violated. With this in mind, death penalty becomes essential for punishing the wrongdoer. However, on the same footing the persons right to life cannot be violated and the person should get equal protection of the rights as the right to life is the foremost and the most important right of a man.
Innocent men are being punished in many cases which unnecessarily leads to the violation of right to life. Sometimes they are being punished for the acts which should not be criminalised in some countries and in some countries, even a juvenile is being punished with death penalty. People also spend their years on death row, causing a severe decline in the mental stability of the convict.
Death penalty is an archaic concept, and many countries and international organisations have condemned the practice. It must be accepted that death penalty is violative of the human and constitutional right to life. It can no longer be justified by the doctrine of rarest of the rare as this doctrine is prone to grave misuse. We must work towards adapting the law to the changing times, and do away with capital punishment.
Author: Deeksha from Bharati Vidyapeeth University .
Editor: Anna Jose Kallivayalil from NLU, Delhi.