Introduction
In the moral and legal universe of crime and punishment, few topics have been as persistently divisive as capital punishment. While the terms “capital punishment” and “death penalty” are often used interchangeably, jurisprudentially, the former refers to the legal sentence of death, and the latter to its actual execution. India’s legal system allows the death penalty in exceptional cases, termed as the “rarest of rare.” This essay examines the nuances of both terms, the historical evolution of capital punishment, the judicial doctrines underpinning its usage, and the landmark decisions that continue to shape India’s sentencing jurisprudence.
Conceptual Difference: Death Penalty vs. Capital Punishment
Capital punishment is the legally sanctioned imposition of the death sentence for specified offences. It encompasses the legal framework, trial process, and appeal stages leading to a sentence of death. Death penalty, on the other hand, specifically refers to the actual carrying out of that sentence the physical act of execution, usually by hanging in India.
Thus, while capital punishment is a procedural and legal process, the death penalty is its culmination. This distinction is vital in understanding debates that center not only on morality and legality but also on whether the process leading up to a death sentence meets constitutional and human rights standards.
Historical Development and Global Trends
The roots of capital punishment trace back to the Code of Hammurabi in Babylon and Roman laws of the Twelve Tables, which codified death as punishment for a range of crimes. Ancient civilizations such as the Greeks, Egyptians, and Chinese practiced varied and often gruesome methods of execution, including crucifixion, flaying, boiling, and strangulation.
In the modern world, attitudes toward the death penalty diverge. Many Western democracies like France, Portugal, and Mexico have abolished it entirely, while others, including the United States, China, and India, retain it, albeit under stricter procedural safeguards.
India, although a signatory to UNESCO, ICCPR, and the Universal Declaration of Human Rights, has not abolished the death penalty. Instead, its courts apply the doctrine of rarest of rare, a judicial innovation evolved to harmonise constitutional mandates with public demand for retributive justice.
Constitutional and International Human Rights Concerns
India’s constitutional ethos, especially Article 21, guarantees the right to life and personal liberty. Any law or punishment infringing on this must pass the test of being “just, fair, and reasonable.” The challenge arises when capital punishment by its very nature irreversible intersects with this right. Opponents argue it violates Article 21, while proponents, including many judicial pronouncements, assert that it does not, provided due process is rigorously followed.
Globally, instruments such as Article 5 of the UDHR and Article 7 of ICCPR prohibit cruel, inhuman, and degrading punishment. The United Nations Economic and Social Council (ECOSOC) in its 1996 resolution encouraged member states to either abolish the death penalty or ensure stringent safeguards before awarding it.
Doctrine of Rarest of Rare: The Indian Judicial Stance
The pivotal judgment shaping Indian death penalty jurisprudence is Bachan Singh v. State of Punjab (AIR 1980 SC 653). In this case, the Supreme Court upheld the constitutionality of the death penalty under Section 302 IPC, stating that it should be awarded only in the “rarest of rare” cases, where the alternative option is unquestionably foreclosed. This judgment introduced a two-pronged test: (1) the crime must be exceptionally heinous; and (2) the criminal must be a continuing threat to society.
In Macchi Singh v. State of Punjab (AIR 1983 SC 957), the Court further clarified this doctrine, providing illustrative categories such as:
- Manner of commission being extremely brutal,
- Victim’s helplessness or vulnerability,
- Crimes causing social indignation.
In essence, the court demanded that capital punishment be awarded only when collective societal conscience is deeply shocked, and justice demands nothing less than death.
Judicial Precedents: Application of the Doctrine
The Mahesh v. State of M.P (1987) 3 SCC 80 case is notable for its firm stance in favor of death penalty. The Supreme Court, while confirming capital punishment for a gruesome murder, observed that awarding a lesser sentence would erode public confidence in the criminal justice system.
In Dhananjoy Chatterjee v. State of West Bengal (2004) 9 SCC 757, the Court emphasized that the measure of punishment must be proportional to the gravity of the crime. In cases where the offender exhibits no remorse and the crime shocks societal conscience, the death sentence is warranted.
On the contrary, in Mithu Singh v. State of Punjab (AIR 1983 SC 473), the mandatory death penalty under Section 303 IPC was struck down for being violative of Articles 14 and 21. The Court held that denying the judiciary discretion to weigh circumstances was unconstitutional, reinforcing the view that death penalty must always be subject to judicial scrutiny and reasoning.
Ethical and Philosophical Debates
The morality of death penalty continues to stir public and academic debate. Mahatma Gandhi famously said, “An eye for an eye makes the whole world blind.” Supporters argue that it deters crime, satisfies retributive justice, and upholds moral balance. However, critics emphasize the risk of judicial error, the arbitrary nature of death sentencing, and its irreversible nature.
In her study, the researcher Akanksha Madaan highlights that social engineering theory by Roscoe Pound supports capital punishment in certain instances for societal stability, but also calls for balancing public interest and individual rights.
Procedural Safeguards and Sentencing Discretion
The CrPC, through Section 235(2), mandates a separate hearing for sentencing in capital cases. This principle was bolstered in Jagmohan Singh v. State of U.P. (AIR 1973 SC 947) where the Court emphasized the need for judicial discretion in awarding death sentences after considering both aggravating and mitigating circumstances.
Further safeguards include commutation, reprieve, pardon, and mercy petitions under Articles 72 and 161 of the Constitution. However, long delays in disposal of such petitions, as noted in Shivbalak v. State of Gujarat, can constitute grounds for commutation to life imprisonment.
Public Opinion and Legislative Hesitation
India has repeatedly witnessed public demands for death penalty in heinous cases like the 2012 Delhi gang rape, which led to the death penalty being awarded to all convicts by the trial court. However, such emotionally charged cases have also drawn criticism from human rights groups, such as the Working Group on Human Rights, which considers death penalty to be an act of retributive violence that fails as a deterrent.
Despite several attempts, including bills in 1956, 1958, and 1962, India has not abolished the death penalty. The Law Commission’s 35th Report (1967) recommended its retention, citing crime deterrence and public sentiment.
Conclusion
The distinction between capital punishment and the death penalty is not merely linguistic, but legal and philosophical. While the former encapsulates a judicial process bounded by law, the latter represents the irreversible act of state-sanctioned execution. India, in navigating this complex terrain, has crafted a middle path: capital punishment exists, but only under the strictest scrutiny, in the “rarest of rare” cases.
Landmark precedents such as Bachan Singh, Macchi Singh, and Mithu Singh reflect an evolving jurisprudence that seeks to align constitutional morality with societal justice. Ultimately, the continued retention of capital punishment in India underscores the tension between public sentiment, judicial restraint, and constitutional ethics, a balance that must be vigilantly maintained in every death sentence pronounced.
Contributed by Paridhi Bansal (Intern)