Section: C

Category: Legal Essay

Paper Code: LE-DW-04

Page Number: 404 - 408

Date of Publication: February 10, 2021

Citation: Devika Warrier, “Rarest of Rare Case”- Capital Punishment, 1, AIJACLA, 404, 404-408, (2021).

Details Of Author(s):

Devika Warrier, BBA LLB Student, Bharata Mata School of Legal Studies, Kerala

ABSTRACT “Punishments to culprits pronounced in the courts of justice for the crimes and wrongdoings have been usually used as a form of remedy as well as a sample lesson for the citizens. This system is not only practiced at present, but it is carried from the time immemorial. The death penalty or capital punishment is always regarded as the highest punishment that man has ever known. During the dynasty rules in India like the Mughals, Indian citizens have witnessed many death sentences in their crudest and weird forms like beheading, crushed by elephants, throwing to crocodiles, quartering, burying alive, tearing apart by horses, bites by snakes, fed to wild animals, drowning, burning and many other forms of cruel punishments. Though the British also followed a similar strategy initially during their invasion and rule in India, later they changed their strategy to the British criminal justice system that allows hanging as the legally authorized form for the capital punishment. Many countries around the world abolished the death penalty by law, whereas, Indian judiciary still giving the death penalty to criminals who have done cold blood massacres and gruesome crimes. While, after the mass hanging of Nirbhaya case convicts by the Indian judiciary, U.N. has called the nations to stop capital punishment. Unlike the situations in some of the European and the Scandinavian countries, the Indian judiciary currently not in a position to stay blindly towards the growing crime rates in India, as in recent times, the number of gruesome murder and rape cases are surging day by day and year by year in India. This essay will focus on the relevance of the death penalty in the criminal justice administration in India. KEYWORDS Capital Punishment, Crime, Indian Penal Code and Rarest of the Rare Case

INTRODUCTION New Zealand Court sentenced life imprisonment without parole to Brenton Tarrant, who killed 51 Muslims as they prayed at mosques in Christchurch. It is the first time in the history of New Zealand such a verdict is announced by the court as it does not have the death penalty as part of the justice system[1]. The people of New Zealand said in a single voice that justice has been delivered to the victims for the inhuman action. Most of the Scandinavian countries do not have the death penalty on their law. However, we cannot compare those countries with a high populous country like India, where the crime rate is high. According to the recent crime rate index, the countries like Venezuela, South Africa, Afghanistan, Papua New Guinea are at high rank, while Qatar, Taiwan, has less crime rate. India is placed on 65th rank on the crime rate index. In ancient times, the Throne had been directly pronounced the capital punishments for the severe nature of crimes, whereas now the death penalty is ordered by the courts of justice for the rarest of rare cases became a matter of conflict among the political parties and the general public as the state assumed responsibility for redressing public retribution[2]. ‘Eye for an eye and life for a life’ is the principle generally the world had been followed traditionally and now it is transformed into the form of capital punishment. On 26th November 2008, a group of terrorists belongs to Pakistan based terrorist outfit has launched a coordinated shooting spree and bomb attacks in Mumbai and this act of terrorism have resulted in extreme causality in huge counts in Mumbai city and significant damage to the public and private properties and slowing down the country’s progressive development activities for a considerable time. Finally, the Honourable Supreme Court of India sentenced the death punishment to the only terrorist Ajmal Kasab[3] who has been captured alive by our security force during the violent spree. It proves that India has been following the tradition of the death penalty to date as a method of punishment besides worldwide agitation against such penalties. Thus, this essay will analyze the validity of capital punishment under Indian Jurisprudence.

CAPITAL PUNISHMENT IN INDIA What makes a case the rarest of rare is a controversial topic. There is no clear definition for this doctrine although it has been implemented by considering the extent of crime done by the culprit. India has various approaches to capital punishment, neither do they support nor dissuade the issue by restricting themselves to the rarest of rare cases. But the thing became complicated when the crime increased, and the extreme actions of crime were common. The different criteria have been laid by the Supreme court of India in the Macchi Singh case.[4] That is, the manner of commission where the action is brutal and extreme when the victim is tortured, or body cut into a brutal manner and also the magnitude of the crime and mental state of the wrongdoer.[5] While in the case of Bachchan Singh v. State of Punjab[6], several propositions and conditions were laid down for the death penalty to limit it to the rarest cases. Although a large number of cases are ordered for the capital punishments, only some are being executed. Indian judiciary since the British era has followed a similar system for capital punishment. Even though the leftists and liberals in our country always opposed the capital punishment system, as they say, it is a clear practice of state-sponsored murder. The Death penalty is the killing of a person with legal recognition, who has committed a crime that is against the law. But the fact is that does anyone have the power to take another’s life and if so, it will be a violation of the fundamental right of a person to live. In any case, awarding the death penalty, even if it's legal, it is against the will of a person and a violation of human rights. On the other hand, the punishment is essential to make fear among others to not continue this wrongful act. Also, there are various theories of punishment like deterrent, preventive and retributive theory which supports the argument of giving back the same amount of sufferings faced by the victims by the act of a culprit, awarding the death sentence may not be violative of human right. As there are certain exceptions for every legislation. For example, the right to freedom of speech and expression does have some exceptions where it will affect the integrity and sovereignty of India. Capital punishment does not violate the provisions of Article 21 of the Indian constitution because it states that Right to live and personal liberty unless done with the due process of law.[7] However, what makes it an infringement of human rights is that it is irrevocable once executed. The report of the Law commission in 2015 stated that the concept of the death penalty other than terrorism-related offense to safeguard the nation is to be abolished.[8] Since India award the death penalty only to the rarest of rare cases, the rate of implementation of death sentence is very low, only 4 have been hung between 2004-2015[9]. The recent death sentence was held for the Nirbhaya case by considering every possibility of pardons. The opponents of capital punishment believe that it will reduce the chance and freedom of humans for improvement and it also shows disrespect towards human life. They claim that the constitution promises every citizen the right to equality before the law, however, capital punishment breaks this promise because it legalizes violence in the form of giving punishment as revenge. Thus, necessitating that justice does not become the moralized form of revenge. On the contrary, if we take some cases like terrorism, once a person enters it, he can’t escape from it and are forced to work on it. So, in that case, he possesses a threat to the life of millions. Subsequently, state machinery as a guardian of the public should think of every way to take care of the nation. Therefore, a state must avoid any hindrance to public safety, and morally it an odd argument that keeping one alive for sacrificing millions of lives. There is an option for mercy petition for evasion from capital punishment. The punishment should reflect the severity of the crime and the criminal background of the convict. By giving importance to individual justice and shaping the outcome of crime to the situation of the offender and the needs of the victim and community, restorative justice avoids the uniformity of sentencing. Undue compassion to impose inadequate sentence would harm the public system to challenge the confidence of people in the efficacy of law and the society could not remain under serious threats for so long. The president and governor are exercising power to grant pardons, to suspend, remit or commute sentences in certain cases given to the Article 72 and 161 to save a fairly large number of convicts from the gallows.[10]To practice the ‘rarest of rare’ doctrine, due care should be taken and cases should be identified where doctrine applies with reasonableness and proficiency by keeping in mind the circumstances of cases and criminal intention.

CONCLUSION There is a wide gap between the provision of law and the realities of enforcement. The legal representation is of utmost importance as the absence of communication with their lawyers, baffling courtroom proceedings, and lack of knowledge will increase the fear and sufferings of prisoners experiencing on death row. The death penalty system on the one hand admitting the crisis within the Indian justice system. While on the other hand, enunciating such strong support for the death penalty where the death penalty starts to give the impression as a perfect distraction from the criminal justice system’s chronic condition. The confusions regarding the concept of rarest of a rare case and the approach toward judicial discretion make the administration of the death penalty a challenging task. So as a conclusion with the growing number of crimes in society, it is being the need of the hour to enforce capital punishment in the rarest of rare cases. The only thing is to be checked whether it is enforced rightly from the beginning of the trial and decide the judgment. . Therefore, it is still needed to enforce capital punishment for the rarest of rare case, but subject to the judiciary must ensure that the convicts undergo a free and fair trial from trial courts to Supreme Court and the convicts receive all humanitarian considerations including from the first citizen of India

[1] Christchurch: New Zealand court sentences shooter to life imprisonment without parole- (Sep. 2020, 27, 03:00 PM), [2] K.D. Gaur, Commentary on the Indian Penal Code, 830, (edn. 2006, Universal Law Publishing Co. Pvt. Ltd.). [3] The Economic times/ 30 August 2012- SC uphold death sentence for Ajmal Kasab. [4] Macchi Singh And Others v. State of Punjab on 20 July 1983 AIR 957, 1983 SCR (3) 413. [5] In Macchi Singh v. State of Punjab AIR 1983 SC 1957. [6] Bachan Singh Etc. Etc v. State of Punjab Etc. Etc on 16 August 1982 AIR 1325, 1983 SCR (1) 145. [7] Constitution of India 1950, Art. 21. [8] Report No. 262, The Death Penalty, Law Commission of India, 2015. [9] UN and The Declaration of Human Rights, OCADP.ORG (Nov. 2020, 02, 12:10 AM), [10] Constitution of India 1950, Art. 72, 161.

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