“CONSTITUTIONALITY OF DEATH PENALITY”

BY-VISHNU TANDI

ABSTRACT

The Indian penal code provides capital punishment for heinous crimes. Indian penal code

provides punishment for death penalty. There are many scholars some of them are in favour

of the death penalty and some are against the death penalty. 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

lawyer and judges who have voiced this demand.

In this essay I will explain the death penalty, sections of IPC in respects of death penalty,

death penalty should be banned or not?, reasons for abolition constitutional validity of death

penalty etc .

INTRODUCTION:-

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. The judicial decree that someone be punished in this

manner is a death sentence, while the actual process of killing the person is an execution.

Crimes that can result in a death penalty are known as capital crimes or capital offences.

In India death penalty is discretionary rather than mandatory in all capital offences except in

case of murder. Section 303 of IPC. Punishment for murder by life- convict. Whoever, being

under sentence of [imprisonment for life], commits murder, shall be punished with death.

“The care of human life and happiness, and not their destruction, is the first and only object

of good government.” -Thomas Jefferson

Ronald Chapman, a prominent West Palm Beach lawyer and graduate of The University of

Iowa College of Law, expressed great opposition towards the death penalty when interviewed

by Jerry Jolly. Mr. Chapman has defended numerous clients on trial for first-degree murder

and face the possibility of receiving death. When asked if he believed there was an equally

effective but less controversial alternative to the death penalty Mr. Chapman suggested that

life in prison without the possibility of parole does the job just as well.

The issue of death penalty has been debated, discussed, studied from a prolonged time but till

now no conclusion can be drawn about the retention or abolishment of the provision. Death

penalty has been a mode of punishment from time immemorial which is practiced for the

elimination of criminals and is used as the punishment for the heinous crimes. Various

countries have different outlook towards crime in different ways. In Arab countries they

choose the retributive punishment of “an eye for an eye” others have deterrent punishment.

Of late there has been a shift towards restorative and reformist approaches to punishment,

including in India. In many countries the death penalty is dropped and is replaced by life

imprisonment.

According to Amnesty International (September 2012 Report), 51% of the world countries

have abolished death penalty in toto while 90% of the countries have abolished it in case of

non- severe crimes.

According to my opinion death penalty should abolish because it violates article 19 of

constitution of India. Criminals also have a right to life. Another thing is that it gives a

chance to reform criminals.

DEATH PENALTY SHOULD BE BANED OR NOT? :-

Death penalty should be abolished though it is legal but it violates article 19 (right to life) of

Indian constitution. Killing a person is wrong but killing another person in respect of

punishment for that murder is also wrong, so we can say that two wrong cannot convert a

wrong into a right. Many people have a argument that accused of heinous crime don’t have a

right to live, so they should be hanged till death but my opinion is that they should get a

chance to reform. If criminal get death penalty for his crime then how he can reform?.

Death penalty is in practice continuously then also crimes are increasing rapidly. Criminals

don’t have fear of death so there should be any other punishment for them.

CONSTITUTIONAL VALIDITY OF THE DEATH PENALTY:-

The constitutional validity of the death penalty was challenged from time to time in numerous

cases starting from Jagmohan Singh v. State of U.P where the SC rejected the argument that

the death penalty is the violation of the “right to life” which is guaranteed under article 19 of

the Indian constitution. In another case Rajendra Prasad v. State of UP, Justice Krishna Iyer

has empathetically stressed that death penalty is violative of articles 14, 19 and 21. But a

year later in the landmark case of Bachan Singh v. State of Punjab, by a majority of

4 to 1 (Bhagwati J.dissenting) the Supreme Court overruled its earlier decision in

Rajendra Prasad. It expressed the view that death penalty, as an alternative punishment for

murder is not unreasonable and hence not violative of articles 14, 19 and 21 of the

Constitution of India, because the “public order” contemplated by clauses (2) to (4) of

Article 19 is different from “law and order” and also enunciated the principle of

awarding death penalty only in the ‘rarest of rare cases’. The Supreme Court in Machhi

Singh v State of Punjab laid down the broad outlines of the circumstances when death

sentence should be imposed.

Similarly in various other cases the Supreme Court has given its views on death penalty and

on its constitutional validity. But the punishment of death penalty is still used in India, some

time back the death penalty was given to Mohammad Ajmal Kasab. The Pakistani gunman

convicted in 2008 Mumbai attacks was sentenced to death by hanging and after a long

discussion, politics and debate was finally hanged on 21 November 2012. Next in the row

is Afzal Guru, convicted in 2001 Parliamentary attacks was also hanged after a huge

political discussion on 9 February 2013.The next convict in the death row is Devendra Pal

Singh Bhullar, convict of 1993 car bombing will be hanged in the coming days as his mercy

petition was rejected by the Supreme Court by holding that in terror crime cases pleas of

delay in execution of death sentence cannot be a mitigating factor.

REASON FOR ABOLISION OF DEATH PENALTY:-

The issue of death penalty has been debated, discussed, studied from a prolonged time but till

now no conclusion can be drawn about the retention or abolishment of the provision. Death

penalty has been a mode of punishment from time immemorial which is practiced for the

elimination of criminals and is used as the punishment for the heinous crimes. India is one of

the 78 retentionist countries which have retained death penalty on the ground that it will be

awarded only in the ‘rarest of rare cases’ and for ‘special reason’. Though what constitutes

‘rarest of rare case’ or ‘special reasons’ has not been answered either by the legislature or by

the supreme court.

According to my opinion death penalty should abolish, because it violates article 19 of

constitution of India. Criminals also have right to life. They should get a chance to reform. It

is against human rights, we all are equal. No one is the owner of one another’s life. Kill the

people that are guilty for what they have done, doesn’t make the world better. Death penalty

will not decrease the rate of murder or commit. Teach them to be a good person. Use

education to teach them, that doing wrong things are not good for themselves and the

others. Let every person that face death penalty have a chance to become a good person and

normal citizen. Statistics show that death penalty has not been very effective and has not

caused a reduction in crime rate. The recent research in 2009 has proved that the death

penalty only reduced crime in a short period, but in the long run crime rate is back to normal

again. Sometimes homicide also occurred because of a short temper rather than planning

ahead. Therefore these criminals probably won’t consider the legal consequences that would

come after their action.

Killing a man is a wrong and two wrong in a sequence can’t make a right. Nobody is afraid of

the death penalty so it is ineffective. It kills people instead of allowing them to pay for their

crime. One moral logic is there that murderers are animal and human being are expected to

treat even animal in a human manner. When dog bites us, we don’t bite him back. Do we?

CONCLUSION:-

Death penalty has already been abolished In 139 countries and India also should join the

majority of nations that have abolished the death penalty. Death penalty is against the human

rights and it violates the article 19 of constitution of India. There can be various alternative

methods for punishing the convict such as rigorous life imprisonment without any possibility

of parole and no protection of good behaviour relief which is provided for in the prison

manual.

Disclaimer –

© VISHNU TANDI, ITM LAW SCHOOL, ITM UNIVERSITY, 2014.

This paperwork is a copyright material protected under the relevant national enactments, in

behalf, on intellectual property. It may not be reproduced by any means, in full or in part,

except for short extracts in fair dealing, for research or private study, criticism scholarly

review or disclosure with an acknowledgement, without permission of the author, i.e.,

VISHNU TANDI, STUDENT OF LAW, ITM LAW SCHOOL, ITM UNIVERSITY,

Gurgaon.