Capital Punishment

Capital Punishment is also known as a death penalty, execution of an offender sentenced to

death after conviction of a criminal offence by a court of law. Indian Criminal justice system
is one of the important parts of capital punishment.

India retained the 1861 Penal Code at independence in 1947, which provided for the death
penalty for murder. The idea of abolishing the death penalty expressed by several members of
the Constituent Assembly during the drafting of the Indian Constitution between 1947 and
1949, but no such provision was incorporated in the Constitution. In the next two decades, to
abolish the death penalty, private members bills were introduced in both Lok Sabha and
Rajya Sabha, but none of them were adopted. It was estimated that between 1950 and 1980,
there were 3000 to 4000 executions. It is more difficult to measure the number of people
sentenced to death and executed between 1980 and the mid-1990s. It is estimated that two or
three people were hanged annually. In the 1980 Bachan Singh judgment, the Supreme Court
ruled that the death penalty should only be used in the “rarest of rare” cases, but it is not clear
what defines the rarest of the rare.

India opposed a UN resolution calling for a moratorium on the death penalty because it goes
against the Indian statutory legislation as well as against each country’s sovereign right to
establish its own legal system. In India, it is awarded for the most serious of crimes. It is
awarded for heinousness and grievous crimes. Article 21 says that no person shall be
deprived of ‘right to life’ which is promised to every citizen in India. In India, various
offences such as criminal conspiracy, murder, war against the government, abetment of
mutiny, dacoity with murder, and anti-terrorism are punishable with death sentences under
Indian Penal Code (IPC). The president has the power to grant mercy in a case of death
penalty. Bachan Singh vs State of Punjab, the Court held that capital punishment will only be
given in rarest of rare cases.

Article 21 of the Constitution guarantees the right to life and personal freedom to all,
including the right to live with human dignity. The state may take away or abridge even the
right to live in the name of law and public order. But this procedure must be “due process” as
held in India’s Maneka Gandhi v. Union. The procedure that takes away a human being’s
sacrosanct life must be just, fair and reasonable. Our constitutional principle can be stated as
follows: -

 Only in rarest of rare cases, the death penalty should be used.

 Only on special grounds, the death penalty can be sentenced and should be treated as
exceptional punishment.
 The accused shall have the right to hear.
 In the light of individual circumstances, the sentence should be individualized.
 The death penalty shall be confirmed by the High Court. Under Article 136 of the
Constitution and under Section 379 of the Cr.P.C., there is a right to appeal to the
Supreme Court.
 The accused may pray for forgiveness, commutation, etc. of sentence under Sections
433 and 434 of the Cr.P.C. and to the President or the Governors under Articles 72
and 161. Articles 72 and 161 contain, apart from the judicial power, discretionary
power for the President and governor to interfere with the merits of the matter;
however, there is a limited authority for judicial authorities to review it and it must
ensure that the President or the governor has all relevant documents and material
before them.
 However, the essence of the governor’s power should not rest on race, religion, caste
or political affiliations, but on a rule of law and rational issues.
 In accordance with Articles 21 and 22 of the Constitution, the accused has the right to
a prompt and fair trial.
 The accused is not entitled to be tortured under Article 21 and 22.
 Under Articles 21 and 19 of the Constitution, the accused has freedom of speech and
expression under custody.
 The accused is entitled to be presented by duly qualified and appointed lawyers.
 Role of Juvenile Justice System in India.

A Latin maxim that suits best for the Juvenile Justice system in India is ‘Nil Novi Spectrum’
which implies that nothing is new on this earth. There has existed a presumption in the whole
world since the ancient period that the Juveniles should be dealt leniently because there exists
a system of thought that says– Young folks generally have a habit to respond in a serious and
prolonged frustration which is accompanied with aggressive approaches.

Prior to the Juvenile Justice Act of 2015, 2000 and 1986, there existed the Children Act of
1960 that aimed to give effects to the international responses towards the issue of Juvenile
Justice by which they provided a uniform policy that protected the interests and rights of a
Juvenile and that looked at care, treatment, rehabilitation and development of a child per se.

But with the recent developments in the international community and subsequent emergence
of the involvement of Juveniles in crime, the Indian lawmakers are compelled to come
forward with new, progressive, and stricter laws for the concerned Juvenile system in the
country. As a result, the Juvenile Justice act of 1986 then Juvenile Justice act of 2000 and
recently the Juvenile Justice act of 2015 was passed by the Parliament.

The frightful incident of “Nirbhaya Delhi Gang Rape Case”, on December 16, 2012 shocked
the whole nation and many debates were started among legal fraternity and socialists. The
main reason and issue of the debate was the involvement of accused, who was just six months
short to attain the age of 18 years. The involvement of the accused in such a heinous crime of
rape forced the Indian Legislation to introduce a new law and thus, Indian Parliament came
up with a new law which is known as “ Juvenile Justice ( Care and Protection), 2015.

The Introduction of the Act has replaced the existing juvenile laws and has introduced some
remarkable changes. One of the remarkable changes is juvenile under the age group of 16 to
18 years should be tried as an adult.

In present era, a movement for the special treatment of juvenile offenders has started
throughout the world including many developed countries like U.K., U.S.A. This movement
has been started around the 18th century. Prior to this, juvenile offenders were treated as
same as other criminal offenders. And for the same reason, General Assembly of United
Nations has adopted a Convention on the Rights of Child on 20th November 1989. This
convention seeks to protect the best interest of juvenile offenders. The Convention states that
to protect the social – reintegration of juvenile, there shall be no judicial proceeding and court
trials against them. The Convention leads the Indian Legislation to repeal the Juvenile Justice
Act, 1986 and to make a new law. Thus, Indian Legislation came up with a new act which
was called as “The Juvenile Justice (Care and Protection of Children) Act, 2000.
The very first and most debatable question among the legal fraternity and socialists is the
“claim of juvenility”. The claim of Juvenility is to be decided by Juvenile Justice Board. The
Board has to decide the claim of juvenility before the court proceedings but the claim of
juvenility can be raised before the court at any stage of proceedings and even after the
disposal of the matter by the Board. The Board had to consider Rule 12 of the Juvenile
Justice Rules, 2007 in order to determine the claim of juvenility. In case of KulaiIbrahim v.
State of Coimbatore it was observed by the Court that accused has right to raise the question
of juvenility at any point of time during trial or even after the disposal of the case under the
Section 9 of Juvenile Justice Act, 2015.

 In case of Deoki Nandan Dayma v. State of Uttar Pradesh the court held that entry in the
register of school mentioning the date of birth of student is admissible evidence in
determining the age of juvenile or to show that whether the accused is juvenile or child.

Again in the case of Satbir Singh& others v. State of Haryana, Supreme Court again
reiterated that for the purpose of determination whether accused is juvenile or not, the date of
birth which is recorded in the school records shall be taken into consideration by Juvenile
Justice Board.
 Causes of domestic violence in India.

The recent movie “Thappad” came as a blockbuster and created a spur of discussions all over
the place. The issue of domestic violence is not something very recent and it has been there
for centuries. What is surprising is that even today with the modernisation of the 21st century
in play, this issue has not been resolved and the cases keep on increasing year by year.
Discussions on such a common topic spur when movies are shown to have been describing
the same. The same stir was made when movies like ‘Provoked’, ‘Agni Sakshi’ and ‘Suno’
were released. But the question is, do we understand the implications of domestic violence,
its effects and the impact on future generations? Are our laws strict enough to punish the
abuser? Are there any mechanisms or programs for the victims to help them in moving on
with their lives? And the most important question is what is considered as Domestic
Violence?
In another movie ‘Akashvani’, there is a dialogue by the lead actress, who was suffering from
mental domestic abuse, that “It is difficult to make them (parents) understand when there are
no physical marks on the body”. It is very important to analyse and understand this part
because in most parts of the world only physical injury is considered as domestic abuse,
social and mental health abuse are not given much of an importance.

Domestic violence can be described as a violent control which one person exercises over the
other. It is also described as establishing control and fear in a relationship by different forms
of abuse. It can range from psychological, sexual, economical to physical torture. This issue
is not just a social issue but also a serious human right abuse factoring the victim to health
and social risks. United Nations describes it as ‘intimate partner violence’ where the
behavioural pattern of one person in a relationship is to gain control of the other by use of
threat, emotional abuse, manipulation, hurting, injury or economical abuse and whose victim
can be anyone regardless of age, gender, race, sexual orientation, class or faith.

While discussing the issue of ‘domestic violence’, the criteria that comes to a person’s mind
is a violent act between partners but the fact is that it can happen between any two people
having a close legitimate relationship. It is something which might start as verbal abuse and
excess dominating behaviour to physical and emotional torture that person. In cases where
the abuser hits or physically tortures, it is easy to assess the violent behaviour for the victim,
but in the majority of the cases, the victims don’t even recognise going through domestic
abuse and just take their abuser as being dominating, strict, caring too much or being
possessive for the victim.

It is crucial to understand that domestic violence is not only between people who are spouses
or partners and it can include several relationships that a person is bound by within a family.
For example in India, the legal aspect has given it a wider interpretation and it includes
sisters, widows, mothers, single women or any lady living in the same household. Thus,
domestic violence includes intimate partners as well as family members. There are many
forms in which domestic violence can be exercised such as controlling economic, sexual,
psychological, stalking, social, physical abuse or threatening. The Domestic Abuse
Intervention Project in Minnesota came up with a Power and Control Wheel which provided
for abusive patterns of the perpetrators. Section 3 of the Protection of Women from Domestic
Violence Act, 2005 mentions that any act or omission done by the respondent which harms,
injures, threatens or abuse physically, sexually, verbally or economically will commit an act
of Domestic Violence.

Even a previously abused person can turn into an abuser himself in the future. It is very
difficult to stop the vicious cycle. Once a person has gone through such violence, it is very
much possible that he/she may accept such behaviour and turn into the predator to wear out
the frustration and pain they had been feeling all alone. Similarly, if a victim has a previous
history of abuse, likely, she/he won’t speak out against it. In such cases, the victim, who is
already in pain due to previous relations, tends to lose hope and continues to suffer without
voicing it out. Therefore, past experiences become very important.