CAPITAL PUNISHMENT ALSO KNOWN AS DEATH PENALTY

The crimes which are punished by death are known as Capital offences. Capital punishment or ‘the death penalty’ or ‘death sentence’ formerly known as ‘judicial homicide’. It is a form of punishment which allows for the person who is convicted to be killed by the State. Basically this punishment is based on the retributive justice. This punishment awarded for serious and heinous offences like terrorism, murder, war against humanity, etc. This is the highest penalty awarded to an accused. Section 4 of BNS, 2024 and section 53 of IPC, 1860 deals with death sentence/capital punishment respectively. In the case of Jagmohan Singh vs. State of UP; 1973 SC it was held that according to Article 21 of the Constitution of India deprivation of life is constitutionally permissible if that is done according to the procedure established by law. In the landmark case of Bachan Singh vs. State of Punjab; [(1980) 2 SCC 684] it was held that capital punishment in India can be given only in the rarest of rarest cases. In the case of Macchi Singh vs. State of Punjab; 1983 SC; the Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rarest cases. Capital punishment is a form of retribution that is the idea of ‘an eye for an eye’. It is to be noted here that if the lower court award a death sentence the same is to be confirmed by the High Court. The relevant provisions in this regard are sections 366 to 371 of Cr.P.C., 1973 and sections 407-412 of BNSS, 2024. In India, the only mode of execution of death sentence is by ‘hanging by neck till death’. Hanging is an ancient mode of execution and was a part of the Roman Law. 

The practice of Capital punishment is not very common in India. In our country, the Court of Session awards a death sentence according to the gravity of the offence, and this verdict requires confirmation by the High Court. Then an appeal can be made to the Supreme Court of India. In some cases, an appeal to the Supreme Court lies as a matter of right, where the High Court has reversed the verdict of the Sessions Court either into acquittal or punishment or has enhanced the sentence to capital punishment. Lastly, if needed an appeal can be made to the President of India and the Governor of respective state for mercy. The President is solely guided by the notes in the files by the Home Minister or the Secretariat. He is bound to pen down the reasons for mercy. It is exercised very judiciously. 

The argument in favour of death penalty is that capital punishment is often justified with the argument that by executing convicted murderers, we will deter would be murderer from killing people. On the other hand argument against death penalty is that some of those executed may not have been capable of being deterred because of mental illness or defect. The most common argument against capital punishment is that sooner or later, innocent people may get killed, because of mistakes or flaws in the justice system. According to Amnesty International as long as human justice remains fallible, the risk of executing the innocent can never be eliminated. In India a proposal for scrapping of the capital punishment was rejected by the Law Commission in its 35th report, 1967.