Updated: May 20, 2020
The death penalty also called as capital punishment in the legal terms in which a person is punished with life death for the crime he has committed according to the law. Capital is a Latin word which means “regarding to head”. The death penalty is a punishment given to the person who has committed a crime such as murder and rape. The most common way of capital punishment is by hanging or decapitating. There are many countries where capital punishment is still on practice but some of the countries have banned capital punishment.
According to the Amnesty International Report, in 2019 most known execution took place in- China, Iran, Saudi Arabia, Iraq and Egypt- in that order. Amnesty International recorded at least 2,307 death sentences in 56 countries in 2019, a slight decrease from a total of 2,531 reported in 2018. At least 26,604 people were known to be under sentence of death globally at the end of 2019.
In India capital punishment is a legal penalty. NLU Delhi confirmed 755 executions in India since 1947. According to a report of the Law Commission of India (1967), the total number of cases in which the death sentence was handed down in India from 1953-1963 was 1410.
Evolution of capital punishment in India
After the Constitution was enforced the death sentence was a common punishment for the crimes like murder but in 1955 the session judge got the discretionary power. In the case of Bachan Singh vs. State of Punjab (1980) the court made it very clear that Capital punishment in India can be given only in “rarest of the rarest cases”.
Execution of order of confirmation of death sentence
The confirmation of death will be made by the Session court passed by the high court in appeal or revision by issuing a warrant.
Section-413 of Criminal Procedure Code 1973 provides that the Session court carries into effect order of confirmation of the sentence of death or any other order passed by the high court by issuing a warrant or taking other steps.
No fixed period of delay could be held to make the death sentence in-executable; Triveniben (Smt.) v. State of Gujarat, (1989)
Section-414 provides that the Session court carries into effect the sentence of death passed by the high court in appeal or in revision by issuing a warrant.
Postponement of death sentence
There are some of the circumstances in which the high court can postponement the execution of a death sentence and it is defined under Section-415 and Section-416 of Criminal Procedure Code 1973 as follows:
(1) Where a person is sentenced to death by the High Court and an appeal from its judgment lies to the Supreme Court under sub-clause (a) or sub-clause (b) of clause (1) of Article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired, or if an appeal is preferred within that period, until such appeal is disposed of.
(2) Where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes an application to the High Court for the grant of a certificate under Article 132 or under sub-clause (c) of clause (1) of Article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until such application is disposed of by the High Court, or if a certificate is granted on such application until the period allowed for preferring an appeal to the Supreme Court on such certificate has expired.
(3) Where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for the grant of special leave to appeal under Article 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition.
Section-416 provides that if a women Sentenced to death is found to be pregnant, the high court shall commute the sentence to imprisonment of life.
Protection Guaranteed under the Indian Constitution
1. Article-21 of the Indian constitution provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. This protects a person from both acts of the executive as well as of legislative also and it says that until the reason just, reasonable and fair to be executed.
2. Article-72 (1)(c) of the constitution provides that the President shall have the power to grant pardon, reprieves or remissions of punishment or to suspend, remit or commute the sentence of any person convicted in any cases where the sentence is a sentence of death.
3. When the pardon is denied by the president then there is scope for judicial review and it can be conducted if the presidential decision is not to pardon the death sentence is arbitrary, irrational and discriminatory. When the Indian law guaranteeing human rights of every person then if there is a capital punishment given to any person for the offence, he still can go for the judicial review.
4. Article -134(1)(a) of the constitution provides an appeal shall lie to the supreme court from any judgement, final order or sentence in a criminal proceeding of a High court in the territory of India if the High court has on appeal reversed an order of acquittal of an accused person and sentence him to death. Right of appeal from High court verdict to the Supreme court, it is applicable in case of punishment.
Should capital punishment be abolished
There are many countries who have abolished capital punishment completely but in India, it is still in practice. Since no one has the right to take anyone’s life on the earth it is a crime and it is a violation of human right too. The judgement on the death sentence is irreversible and it does not determine the actual punishment of the crime. Amnesty International considers it to be “the ultimate, irreversible denial of Human Rights”.