This Blog is written by Shivanii Singh, a Second Year Law Student of South Calcutta Law College, Calcutta University

ABSTRACT

The death penalty has been a matter of extensive controversy. Some people support it as they believe that for every action, there should be equal and opposite reactions. Others are against it as they think that every person deserves a second chance and it no place for the government to decide whether a person should live or not.

After the R.G KAR rape incident where a doctor was brutally raped and killed, there were protests in Kolkata and all over India for hanging the accused. Even after the Nirbhaya rape case, people demanded the death penalty.

The death penalty involves the conviction of persons involved in heinous crimes; It is also known as capital punishment. This article explores the controversies surrounding the death penalty in India, the legal implications of the same, and the judicial pronouncement of the same.

INTRODUCTION

The crime rate happening in the world is rapidly increasing. The death penalty serves as a severe form of punishment. In the death penalty, the person found guilty of a crime is executed. However, in many countries, this form of punishment is banned as it gives no hope for improvement or a second chance.

In India, the death penalty is given only in the ''rarest of rare cases.''

CONSTITUIONAL PROVISIONS FOR DEATH PENALTY IN BHARTIYA NYAY SANHITA

1 Punishment for rape which leads to the victim's death or vegetative state the victim

If any person is found guilty of rape that led to the death of the victim or lead to a stage of persistent vegetative stage, he shall face a rigorous imprisonment of 20 years which may also lead to DEATH PENALTY.

2,Gang Rape (Section 70(2) BNS)-

If a woman under the age of eighteen is raped by one or more individuals, each individual involved will face life imprisonment. The death penalty also can be given the individuals.

3. Waging, attempting to wage, or encouraging war against the Government of India (Section 147 BNS): Anyone who wages a war against the government of India, attempts to wage a war, or supports such a war, will be liable to a Death Penalty.

4. Terrorist activities (Section 113(2)(a) BNS)- Section 113 (2) BNS - Any individual who carries out a terrorist act shall be punished as follows: (a) If this offense leads to the death of someone, the perpetrator shall face the death penalty or life imprisonment and will also be subject to a financial penalty.

5. betting the suicide of a minor, an insane person, or someone under the influence of drugs (Section 107 BNS): Section 107 BNS states that if a person serving a life sentence commits murder, they will be subject to either death penalty or life imprisonment for the remainder of their natural life.

CONSTITUTIONAL VALIDITY

Critics claim that it goes against Article 14 (Right to Equality), Article 19 (Right to Freedom), and Article 21 (Right to Life).

Article 21 protects the right to life, and imposing the death penalty may go against the constitution.

The topic of the death penalty has sparked discussions all over India.

ARTICLE 21- Article 21 gives the right to LIFE and giving the death penalty might be against the provisions of the constitution.

Jagmohan Singh vs. State of UP (1972)

In Jagmohan Singh vs. State of UP (1972), Jagmohan Singh murdered Chotey Singh and was sentenced to death. The fundamental right of Article 21 can be restricted under reasonable circumstances for the public good. The death penalty, as outlined in Section 302 of IPC, is an example of such a restriction, where even the framers of the Constitution have also proven the legitimacy of such punishment]

Nirbhaya Rape Case [Mukesh & Anr. V. State (NCT Of Delhi) & Ors.]

Nirbhaya, the victim was brutally raped and killed in a private bus. Even iron rods were inserted into her private parts. The convicts were given a death sentence. However, the International Commission of Jurists urged the government to abolish the death penalty. According to them, the hanging of the accused was a black day for Indian democracy.

ARGUMENTS FOR DEATH PENALTY

• The proponents of the death penalty often argue that the death penalty often causes fear in the minds of individuals and also prevents potential criminals from committing crimes.

• One of the key principles for the death penalty is that people should get what they deserve in proportion to the severity of crimes. Each criminal should know the repercussions of his actions. In the case of murder, a criminal deserves death.

• The supporters also hold that society has the right to protect itself against harmful people. Execution is a remedy to eliminate individuals who pose a threat to society.

ARGUMENTS AGAINST DEATH PENALTY

• EXECUTION OF THE INNOCENT- The people advocating against the death penalty often argue that due to delays or errors in the judicial system, innocent people might suffer. It might lead to the execution of INNOCENT PEOPLE.

• Death does not lead to rehabilitation of prisoners. It does not give them a second chance. It is inhuman.

• The statistical evidence doesn’t confirm that deterrence works. Some of those executed may not have been capable of being deterred because of mental illness or defect. Some capital crimes are committed in such an emotional state that the perpetrator does not think about the possible consequences.

CONCLUSION

The death penalty issue remains highly polarized, reflecting the complexities of divergent moral, ethical, and practical considerations. For their part, some argue that the death penalty serves to deter heinous crimes, stands for the most extreme justice for victims' families in the most grievous crimes, and upholds the doctrine of retributive justice. On the other hand, critics argue that this penalty is irreversible; there is a possibility of wrongful accusations, no final proof of its deterrent effect, and that is usually used discriminately against the weak in society. In the end, the issue of whether it should be adopted or struck off is usually determined by societal values or principles of human rights and what the law dictates in the concerned state. As the world's view continues to change, many have moved away from capital punishment and come up with life imprisonment without the chance of parole to be used as a humane alternative; others continue using it as they see it to be a weapon in extreme cases.

REFERENCES

1. Md Imran Wahab, 'Crimes Punishable By The Death Penalty In The Bharatiya Nyaya Sanhita, 2023 (BNS)' (Legal Service India, 2024) https://www.legalserviceindia.com/legal/article-17885-crimes-punishable-by-the-death-penalty-in-the-bharatiya-nyaya-sanhita-2023-bns-.html accessed 13 October 2024.

2. BBC, 'Arguments in favour of capital punishment' (undated) https://www.bbc.co.uk/ethics/capitalpunishment/for_1.shtml accessed 13 October 2024

3. Michael Cholbi, 'Capital Punishment' (Internet Encyclopedia of Philosophy) https://iep.utm.edu/death-penalty-capital-punishment/ accessed 13 October 2024.

4. Office of the United Nations High Commissioner for Human Rights (OHCHR), 'Death Penalty' (OHCHR) https://www.ohchr.org/en/topic/death-penalty accessed 13 October 2024.

5. Legal Information Institute, 'Capital Punishment' (Cornell Law School) https://www.law.cornell.edu/wex/capital_punishment accessed 13 October 2024.