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Capital punishment is the lawful penalty for certain crimes according to the Indian Penal Code and certain other legislations. The primary mode of execution is hanging, as prescribed by Section 354(5) of the Criminal Code of Procedure, 1973, which mandates that the convict be hanged by the neck until death. Capital punishment is awarded only in 'rarest of rare cases'.

Capital punishment in the Indian Penal Code

Other than Indian Penal Code (IPC), the Army Act, 1950, Petroleum and Minerals Pipelines (Acquisition of right of user in land) Act, 1962, Defence of Indian Act, 1971, Commission of Sati (Prevention) Act, 1987, Assam Rifles Act, 2006, Explosive Substances Act, 1908, Navy Act, 1957, Unlawful Activities (Prevention) Act 1967, Coast Guard Act, 1978, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, Sashastra Seema Bal Act, 2007, Anti Hijacking Act, 2016, Air Force Act, 1950, The Geneva Conventions Act, 1960, Border Security Force Act, 1968, Narcotic Drugs and Psychotropic Substances, 1985, Indo-Tibetan Border Police Force Act, 1992, The Prevention of Child Sexual Offences Act, 2012 etc also have provisions of death penalty for certain offences.

Some recent instances of the Death Penalty in India are:

• Dhananjoy Chatterjee, who was charged and convicted of the murder and rape of a 14-year-old girl, was hanged on August 14, 2004.

• Mohammad Ajmal Amir Qasab, convicted in the 2008 Mumbai terror attack, was hanged on November 21, 2012.

• Afzal Guru, convicted in the 2001 parliament attack, was hanged on February 9, 2013.

• Yakub Memon, convicted in the 1993 Mumbai Blasts, was hanged for terrorism on July 30, 2015.

• In the Nirbhaya case, four convicts Pawan Gupta, Vinay Sharma, Akshay Kumar, and Mukesh Kumar were hanged on March 20, 2020, in Delhi's Tihar Jail.

Landmark Judgments:

In Jagmohan Singh vs. State of Uttar Pradesh, AIR. 1973, S.C 947, a five-judge bench of the Supreme Court unanimously upheld the constitutional validity of the death penalty, ruling that capital punishment did not violate Articles 14, 19, and 21. In this case, the validity of the death penalty was challenged on the grounds that it violated Articles 19 and 21 by not providing any procedure. It was argued that the procedure outlined in the Cr. P.C. was limited to finding guilt and not awarding the death penalty. The Supreme Court ruled that the death penalty is imposed in accordance with the legal process. It was observed that the judge chooses between the death penalty and life imprisonment based on the circumstances, facts, and nature of the crime brought on record during trial.

In another case, Rajendra Prasad vs. State of Uttar Pradesh, AIR 1979, S.C.p.916, Justice Krishna Iyer emphatically stressed that the death penalty violates articles 14, 19, and 21. He went on to say that in order to impose the death penalty, two conditions must be met:

1. The special reason for imposing the death penalty in a case should be recorded.

2. Only in exceptional circumstances, the death penalty should be imposed.

The issue was revisited in Bachan Singh vs. State of Punjab, AIR 1980, S.C 898 in which the Supreme Court's five-judge bench overruled its earlier decision in Rajendra Prasad by a vote of 4 to 1 (Bhagwati J.dissenting). It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India, because the "public order" contemplated by clauses (2) to (4) of Article 19 is different from "law and order" and also enunciated the principle of awarding death penalty only in the 'rarest of rare cases'. However Justice Bhagwati, In his dissenting opinion, observed that “death penalty is not only unconstitutional being violative of Articles 14 and 21 but also undesirable from several points of view.”

The Supreme Court in Machhi Singh vs. State of Punjab, AIR 1983, S.C 957 established broad guidelines for when the death penalty should be imposed. The five categories of cases may be considered the rarest of rare cases deserving of the most severe penalty. They are as follows:

• Firstly: Manner of Commission of murder – When the murder is committed in an extremely brutal manner so as to arouse intense and extreme indignation in the community, for instance, when the house of the victim is set a flame to roast him alive, when the body is cut to pieces or the victim is subjected to inhuman torture.

• Secondly: Motive – When the murder is committed for a motive which evinces depravity and meanness eg. a hired assassin, a cold blooded murder to inherit property, or gain control over property of a ward, or a murder committed for betrayal of the motherland.

• Thirdly: Anti-social or socially abhorrent nature of the crime – where a scheduled caste or minority community person is murdered in circumstances which arouse: social wrath; or bride burning for dowry, or for remarriage.

• Fourthly: Magnitude of the Crime – Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community or locality.

• Fifthly: Personality of victim of murder.

In the Vinay Sharma v. the Union of India (2020) case, also known as the Nirbhaya gang-rape case, involved the brutal rape and murder of a young woman in Delhi by six accused. One accused committed suicide in jail and one was a juvenile who was not sentenced to death. The other four accused were sentenced to death and were hanged in 2020 after the court analyzed aggravating and mitigating factors, ultimately deciding that the death sentence was necessary given the inhuman torture committed on the victim, which led to her death. The case shocked the conscience of the whole country.

The Supreme Court in the recent case of Manoj Pratap Singh v State of Rajasthan, Special Leave Petition (CRL.) Nos. 7899 - 7900 of 2015, three Judge Bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar while confirming the death sentence awarded to a man convicted of kidnapping, raping and killing a seven-and-a-half-year-old mentally and physically disabled girl observed "over the time, even the proposition of larger/longer term of actual imprisonment with no remission or curtailed remission has also evolved but, it has never been the effort of the courts to somehow make this punishment (sentence of death) redundant and non-existent for all practical purposes. The quest for justice in such cases, with death sentence being awarded and maintained only in extreme cases, does not mean that the matter would be approached and examined in the manner that death sentence has be avoided, even if the matter indeed calls for such a punishment,"

References:

http://ijlljs.in/capital-punishment-in-india-the-unending-conundrum/

https://blog.finology.in/Legal-news/capital-punishment-in-india

https://www.indianbarassociation.org/constitutionality-of-death-penalty/

https://www.barandbench.com/columns/death-penalty-supreme-court-of-indias-recent-approach