Capital punishment in India:

Introduction:
Crime is as old as human civilization. Since time immemorial crime has been with us in
different degrees. Every society has a pattern of suitable conduct and some human beings in
every society fallen outside this configuration. It is the reality which we can accept that crime
cannot be abolished. Various reasons for the crime are greed, jealousy, anger etc. ‘Punishment’
is the force used to enforce the law and to reduce the crime. It is the duty of the State to punish
the criminals in order to maintain law and order in the society. In the past, there wasn’t any
specific laws. The quantum and extent of punishment was largely dependent on the King. With
time modern theories of punishment were developed and voluntary submission of our rights
and power to maintain law and order was given to state. The most brutal or we can say the
highest punishment awarded in present time is ‘Capital Punishment’. Capital Punishment is the
practice of executing someone as punishment for a specific crime after a proper legal trial.
Capital punishment is also known as ‘Death Penalty’. It ​is a government-sanctioned practice
whereby a person is put to death by the state as a punishment for a crime​ and can only be used
by a State. ​The actual process of killing the person is called an execution.​ It is usually only
used as a punishment for particularly serious types of crime. ​The method of punishment varies
from country to country. Some countries hang the culprits until death and some shoot or give
them a lethal injection.

History of Capital Punishment:

Capital punishment was term to be oldest trend to punish for a crime from ancient time, the
only difference is in modern era death penalty use to be given on rarest of rare case and in
ancient period it use to be given on petty offences. The punishment at that time was awarded in
arbitrary manner by king. Death penalty was usually given for murder, theft, trespass and
misuse of valuable things.
The root of death penalty laws was traced as for back in Babylon law. Hammurabi who was
first metropolis, the king of Babylon issued a set of laws to his people called Hammurabi Code.
Hammurabi Code provide harsh standard by which Babylon could order their lives and treat
one another. In Hammurabi Code crime against high class people having a large amount of
money considered more serious than poor people. In Hammurabi arbitrariness has been erase
due to written law but the punishment of death was normal in crimes like murder, wrong at
work, trespass etc.
Rarest of Rare case:
The legislative dictate has changed from death sentence being the norm to becoming an
exception, and necessarily to be accompanied by good reasons. ​Bachan Singh v. State of
Punjab, AIR 1980 SC 898 63​ was a landmark in the escalating debate on the question of the
compatibility of the death sentence with Art.21 of the Constitution. The Supreme Court while
holding the validity of the death penalty expressed the opinion that a real and abiding concern
for the dignity of human life postulates resistance for 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. However, the Court declined to formulate any aggravating
or mitigating factors as it would fetter judicial discretion, but held that a murder "diabolically
conceived and cruelly executed" may attract extreme penalty. It is not possible, the court
opined, to feed numerous imponderable circumstances in an imperfect and undulating society.
But what are those rarest of rare occasions is the dilemma. What appears as brutal and
gruesome, to one judge may not appear to be so to another. For example, in one case the
murder of wife and two children with the motive of leading life with the paramour could not
convince Justice for death penalty, while the other Justice wondered what else could be a fit
case for death penalty than the one. It is submitted that if the difference in perception is so
glaring among two judges of the highest court then what is relative position among a very large
number of session's judges. It was, however, in ​Machi Singh v. State of Punjab​, ​(1983) 3
SCC 470 ​where four men were awarded death sentence by the Sessions Court and the High
Court for shooting down seventeen persons including men, women and children within their
homes at night, in five incidents. The motive was a family feud. The Supreme Court upheld the
death sentence of the three-four persons. Justice Thakkar, speaking for the court, was
compelled to attempt a definition of the 'rarest of rare' case, thus:
1. When the murder is committed in any extremely brutal manner.
2. When the murder is committed for a motive which shows total depravity and meanness.
3. Antisocial or socially abhorrent nature of the crime.
4. Crimes of enormous proportion, like multiple murders.
5. Personality of victim of murders e.g. an innocent child or a helpless woman. However, these
are the judicially evolved guidelines which are to assist the courts in determining sentence.

Present scenario in India:

In India Article 21 of the Constitution entitled ‘Protection of life and personal liberty’ says:
No person shall be deprived of his life or personal liberty except according to procedure
established by law.

This article of the Constitution enshrines the Right to Life guaranteed to every individual in
India. The constitutional validity of capital punishment has been called into question several
times in the India judiciary.

The Indian Penal Code awards death sentence as a punishment for various offenses. Some of
these capital offences under the IPC are punishment for criminal conspiracy (​Section 120B​),
murder (​Section 302​), waging or attempting to wage war against the Government of India
(​Section 121​), abetment of mutiny (​Section 132​), dacoity with murder (​Section 396​) and
others. Apart from this, there are provisions for the death penalty in various legislations like the
NDPS Act, anti-terrorism laws etc.

The Indian Constitution has provision for clemency of capital punishment by the President.
Once the Sessions Court has awarded death sentence to a convict in a case, it must be
confirmed by the High Court. Even after that, the convict may prefer an appeal to the Supreme
Court. If this also fails the accused has the option of submitting a ‘mercy petition’ to the
President of India and the Governor of the State. Detailed instructions regarding the procedure
to be observed by the states for dealing with petitions for mercy from or on behalf of convicts
under sentence of death and with appeals to the Supreme Court and applications for special
leave to appeal to that court by such convicts are laid down by the Ministry of Home Affairs.

In this respect we may refer to​ Article 72 of the Constitution of India​ which says:

“Power of President to grant pardons, etc, and to suspend, remit or commute sentences in
certain cases-

(1) The President shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
offence;

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence for an offence against any law relating to a
matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death;

(2) Nothing in subclause (a) of Clause (1) shall affect the power to suspend, remit or commute
a sentence of death exercisable by the Governor of a State under any law for the time being in
force.”

Similarly, the pardoning powers of the Governor of a State are mentioned in Article 161​.
These provisions ensure that the accused is sentenced to death only after there is no room for
error left. The culprit gets multiple avenues to appeal and now life imprisonment has become
the rule while the death sentence is the exception.

Conclusion:
Preamble of India which says ‘we the people of India’ directly indicate it as a democratic
country where public at large prevails. Laws are made for human beings so that one may live
their life with dignity without affecting others right. When any crime committed by accused he
must be punished by the state through law as it effect public or the innocent victims. Capital
Punishment is the most severe punishment of the society. India did not abolish capital
punishment but they limit its scope by awarding capital punishment on rarest of rare cases.
According to our judiciary it must be imposed in exceptional cases i.e. in rarest of rare cases
with special reasons. India is a nation of different cultures, different types of people having
their different way of thinking and living. The acts of crimes are not the trend of modern area
but it has taken place from ancient period. Though in ancient period death punishment used to
be awarded on small offences but the only logic behind it to save the public at large and create
horror in their minds so they stop doing crime from the fear of capital punishment.