ASSIGNMENT OF
RESEARCH METHDOLOGY
TOPIC – LITERATURE REVIEW ON
CAPITAL PUNISHMENT IN INDIA.
NAME – SOURABH KALIA.
CLASS – MBA 2ND SEM (SECTION-B)
ROLL NUMBER – 22112.
SUBMITTED TO – PROF. YASHWANT KUMAR
GUPTA SIR.
LITERATURE REVIEW
ON CAPITAL
PUNISHMENT IN
INDIA.
INTRODUCTION - India is a well developing country at the same
time lots of crime rates were increasing nowadays. There are lots of
legislation in India to stop and control crimes, even though the
crime rates are increasing because the punishments are not
sufficient for the crimes. The punishment should be severe to
reduce the crime rate. All punishments are based on the same
motive to give penalty for the wrongdoer.. There are different
kinds of punishment in India such as capital punishment, life
imprisonment, imprisonment etc. Capital punishment is known as
the most severe form of punishment.. This paper says about the
status of capital punishment all around the world and also
defines the concept of capital offence. It also explains about the
modes of capital punishment in India . This literature review has a detailed
view about the capital punishment in India .
HISTORICAL BACKGROUND- Capital punishment is an ancient
sanction. There is practically no country in the world where the death penalty has
never existed. History of human civilization reveals that during no period of time
capital punishment has been discarded as a mode of punishment. Capital
punishment for murder, treason, arson, and rape was widely employed in ancient
Greece under the laws of Draco (fl. 7th century BCE), though Plato argued that it
should be used only for the incorrigible. The Romans also used it for a wide range
of offenses, though citizens were exempted for a short time during the republic. .
HISTORY OF CAPITAL PUNISHMENT IN INDIA –
A careful scrutiny of the debates in British India's Legislative Assembly reveals
that no issue was raised about capital punishment in the Assembly until 1931,
when one of the Members from Bihar, Shri Gaya Prasad Singh sought to introduce
a Bill to abolish the punishment of death for the offences under the Indian Penal
Code. However, the motion was negatived after the then Home Minister replied
to the motion. The Government's policy on capital punishment in British India
prior to Independence was clearly stated twice in 1946 by the then Home
Minister, Sir John Thorne, in the debates of the Legislative Assembly. "The
Government does not think it wise to abolish capital punishment for any type of
crime for which that punishment is now provided" . At independence, India
retained several laws put in place by the British colonial government, which
included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the Indian
Penal Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be
imposed under the law, including death. For offences where the death penalty
was an option, Section 367(5) of the CrPC 1898 required courts to record reasons
where the court decided not to impose a sentence of death: If the accused is
convicted of an offence punishable with death, and the court sentences him to
any punishment other than death, the court shall in its judgment state the reason
why sentence of death was not passed. In 1955, the Parliament repealed Section
367(5), CrPC 1898, significantly altering the position of the death sentence. The
death penalty was no longer the norm, and courts did not need special reasons
for why they were not imposing the death penalty in cases where it was a
prescribed punishment. The Code of Criminal Procedure was re-enacted in 1973
(‘CrPC’), and several changes were made, notably to Section 354(3): When the
conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall
state the reasons for the sentence awarded, and, in the case of sentence of
death, the special reasons for such sentence. This was a significant modification
from the situation following the 1955 amendment (where terms of imprisonment
and the death penalty were equal possibilities in a capital case), and a reversal of
the position under the 1898 law (where death sentence was the norm and
reasons had to be recorded if any other punishment was imposed). Now, judges
needed to provide special reasons for why they imposed the death sentence.
These amendments also introduced the possibility of a post-conviction hearing on
sentence, including the death sentence, in Section 235(2), which states: If the
accused is convicted, the Judge shall, unless he proceeds in accordance with the
provisions of section 360, hear the accused on the question of sentence, and then
pass sentence on him according to law.
CAPITAL PUNISHMENT : THE CURRENT STATUS –Supreme
Court on Validity of Capital Punishment in India Article 21 of the Indian
Constitution ensures the Fundamental Right to life and liberty for all persons. It
adds no person shall be deprived of his life or personal liberty except according to
procedure established by law. This has been legally construed to mean if there is
a procedure, which is fair and valid, then the state by framing a law can deprive a
person of his life. While the central government has consistently maintained it
would keep the death penalty in the statute books to act as a deterrent, and for
those who are a threat to society, the Supreme Court too has upheld the
constitutional validity of capital punishment in “rarest of rare” cases. In Jagmohan
Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar
Pradesh (1979), and finally in Bachan Singh vs State of Punjab (1980), the
Supreme Court affirmed the constitutional validity of the death penalty. It said
that if capital punishment is provided in the law and the procedure is a fair, just
and reasonable one, the death sentence can be awarded to a convict. This will,
however, only be in the “rarest of rare” cases, and the courts should render
“special reasons” while sending a person to the gallows. Criteria for Rarest of Rare
The principles as to what would constitute the “rarest of rare” has been laid down
by the top Court in the landmark judgment in Bachan Singh vs State of Punjab
(1980). Supreme Court formulated certain broad illustrative guidelines and said it
should be given only when the option of awarding the sentence of life
imprisonment is “unquestionably foreclosed”. It was left completely upon the
court’s discretion to reach this conclusion. However, the apex court also laid
down the principle of weighing, aggravating and mitigating circumstances. A
balance-sheet of aggravating and mitigating circumstances in a particular case has
to be drawn to ascertain whether justice will not be done if any punishment less
than the death sentence is awarded. Two prime questions, the top court held,
may be asked and answered. First, is there something uncommon about the crime
which renders the sentence of imprisonment for life inadequate and calls for a
death sentence? Second, are there circumstances of the crime such that there is
no alternative but to impose the death sentence even after according maximum
weightage to the mitigating circumstances which speak in favour of the offen.
FROM VARIOUS REASEARCH PAPERS I HAVE SUMMARISED That The death penalty
is one of the most controversial topics of the Indian society . It exists from the
ancient periods and still prevailing in some major countries, India is one of them.
In India, death punishment is given only in rarest of the rare cases but what is the
exact meaning of the phrase ‘rarest of the rare cases’ has caused much
controversy. The ultimate aim to give punishment anywhere is to reduce the
crime and to impose some penalty on the name of justice .India follows the same
phenomenon but as per the Indian constitution, it is the violation of the
provisions of right to life and dignity provided in Art.21, still it is constitutionally
valid. This paper provides an overview of capital punishment in India. It also
explains the history and various cases on the death penalty. The study observed
that all the judgments pronounced in heinous offences while keeping in mind the
public at large which eventually settle that the awarding capital punishment on
rarest of the rare case is just and fair. Capital punishment has always been a
controversial matter of social and moral aspect in the world .Since death
punishment is the process of killing a person, who is accused of a heinous offence
in the name of justice, it is not just a punishment but more than that as according
to the principle of the human rights it is immoral and determines the lack of
respect for the human life. Also if someone opposing the death punishment, it
doesn’t mean he or she is supporting the criminal. As per Indian constitution or
some other countries, death punishment is valid and the same constitution
provides the provisions of right to life and human dignity too. United Nation
supporting the abolition of the death penalty and India is an active member of the
United Nation, still ,capital punishment is there in our statute book. This is
because in today world, the conditions and circumstances of crime is brutal a few
of them are Delhi gang rape case and Hyderabad gang rape case are known to be
the most brutal cases as of now,because of this society demands justice which
must be as harsh as the crime committed. That’s why the death penalty is still
exercised in India.But we need to understand, even though we have the death
penalty as capital Punishment for like these heinous offences still it is not helpful
for eliminating the crime instead the crime rates are rapidly increasing yearly.But
in relation to the death penalty, the punishment for this crime in India should also
be reconsidered.Therefore ,the Legislation and judiciary while implementing any
law should think in that way, we need to eliminate the crimes and not the
criminal.
Capital Punishment is an inhuman and barbarous instrument in the hands of
judiciary. It is argued to be a stain on the society which is built on humanitarian
values. Several members of the Constituent Assembly, too, were opposed to the
idea of incorporating death penalty in the Constitution. As regards the statistics,
even death sentence could not deter the commitment of offences, hence the ever
increasing crime rate. Indian judiciary has been laying greater emphasis on
alternative modes of punishments in light of international legal developments
which stand against the extreme form of penalty. Global trend is to restrict the
number of offences for which death sentence may be awarded. According to a UN
Report, about 160 countries have abandoned capital punishment in law or
practice while 98 nations have abolished it altogether. The issue of abolition of
such punishment is considered more a moral issue than a legal one. The recent
executions of Ajmal Kasab and Nirbhaya rape case convicts have once again
opened the debate about how it is time for India to put an end to the practise of
death penalty. The constitutionality of such sentence shall continue to be
challenged and, sooner or later, the Apex Court will have to answer whether
absence of political will is sufficient ground to override the right to life. The
practise of death penalty does not serve the purpose of deterring crimes. It is
inequitable in practise and uncivilised in theory. Hence, capital punishment must
be discontinued in lieu of the fact that it violates elementary human dignity and is
unfit to serve the ends of justice.
This is known to all in India that Capital Punishment should retain. There is report
of Amnesty International on Abolitionist and Retentionist Countries in July 2018.
According to this report more than two –third of the countries in the world in
favor of abolished the death penalty and they now abolished it in law or practice.
In this there is list of country in which capital punishment abolished. 56 Country
which retain this death sentence out of this India is One which retain this
punishment.
REFERENCES 1- INDIA CONST.art.21. 2- The Indian Penal Code, 1860, No.45, Acts
of Parliament, 1860(India). 3- The Code of Criminal Procedure, 1973, No.2, Acts of
Parliament, 1973 (India). 4- The Code of Civil Procedure, 1908, No.5, Acts of
Parliament, 1908 (India). 5- The Protection of Children from Sexual Offences
(Amendment) Act, 2019, No. 25, Acts of Parliament, 2019(India)
Prof.Kumar Narender,The constitutional law of India (Allahabad Law Agency 10th
edition Reprint 2019). 2. K.D.Gaur Textbook on Indian Penal Code 1860 ( Lexis
Nexis 7th edition 2020). 3. Pillai’s PSA, Criminal Law ( Lexis Nexis 13th
edition,2017) 4. https://www.livelaw.in 5.
https://www.hindikiduniya.com/essay/essay-on-is-death-penalty-effective-in-
hindi 6. https://hindi.ipleader.in/significant-analysis-of-death-penalty-in-india/ 7.
www.google.com 8. www.thehindu.com 9. www.legalservicesindia.com 10.
en.m.wikipedia.org 11. https://Indiakanoon.org 12. https://Indiankanoon.org
THANK YOU
