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Updated: Feb 20, 2022

Written by: Shreemh Agarwal

The death penalty is the highest penalty that can be imposed on a person according to worldwide criminal law. The death penalty is a national legal procedure in which the judiciary exercises its power to legislate on individuals. It has existed since the founding of the nation. In the British era, there were countless cases in which Indians were hanged after or even before the trial. The beginning of independence brought the Indian judicial system into a new era. In sharp contrast with the British judicial system, Indians could hardly access justice, or in the previous empire and kingdom era, when the ruler of a country was a specific country. Or the kingdom is his supreme authority and the source of all justice, in which his words are truly accepted as the law of that country. Therefore, the ruler has the right to kill anyone, no matter who he is, even on a whim. The state of emergency and the death penalty system have also undergone tremendous changes. The Indian Penal Code imposes the death penalty on certain crimes in accordance with the provisions of the Indian Constitution.

Article 21 of the “Constitution” guarantees the basic right to life of every citizen. It also clearly stipulates that “no one’s life and personal freedom shall be deprived of except in the manner prescribed by law”. This means that under no circumstances will you be deprived of your right to life, unless this is done in a procedure required by law, i.e., not all crimes are punishable by the death penalty. In fact, most authorities do not use the death penalty; on the contrary, it only applies to the most terrible crimes. India’s judicial system is based on the inherent principles of deterrence, reforms, and no guilty unless proven otherwise. Therefore, the death penalty rarely occurs in India. When it occurs, it is not surprising that it not only attracts the attention of the local media but also the international media giants. There are no reasonable statistics on the number of executions in India since independence, but the numbers may be higher.

In addition to the controversy over the number of death sentences, the death penalty itself has been controversial for decades. The current prison system has also angered many human rights and civil rights organizations that are not limited to one country. Human rights organizations such as Amnesty International and the European Center for Human Rights (ECHR) are committed to abolishing the death penalty for every crime worldwide. The United Nations itself has abolished the death penalty forever. So far, despite the endless domestic and foreign disputes, India has maintained a clear international position on the issue of the validity of the death penalty. One of the greatest achievements of international human rights organization is the passage of the Youth Court Law (Act on the Protection and Protection of Minors) in 2000. Before the Youth Court Act was passed in 2000, the hanging of minors under the age of 18 was not allowed. In 2007, the United Nations proposed to all member states to abolish the death penalty for all types of crimes. India strongly opposes the above-mentioned proposal.

As of June 2004, a total of 118 countries have abolished the death penalty in law and practice. Among them, 80 countries and regions have abolished the death penalty. 15 countries have abolished all the death penalty except for special crimes (like war crimes) and 23 countries have abolished the death penalty in practice, which means that they have maintained the death penalty in law, but have not implemented the death penalty for ten years or more in recent years. It is believed that there are no established policies or practices to abolish the death penalty, but India seems to be ready to join. The constitutional legitimacy of the death penalty has been questioned and challenged. This is the first time that happened in Jagmohan v. State of Uttar Pradesh in Uttar Pradesh when the Supreme Court supported its legitimacy, i.e., the death penalty itself is not inappropriate and the abolition of the death penalty is not in the public interest and therefore not illegal. The constitution, since then, has been challenged many times, but the decision remains unchanged. One of the most interesting developments regarding the future of the death penalty in India is the 2015 report of the 20th Judicial Committee chaired by Justice A.P. Shah, which recommended the immediate abolition of the death penalty. However, it should be noted that the committee did not recommend immediate abolition, but it could be completely abolished in the near future. Any criminal law must play a deterrent role and the death penalty cannot play a role in this regard. The Committee concluded that the death penalty is generally abolished in terrorism cases, except terrorism-related cases, which may endanger national security.

There are several things to consider before deciding to abolish the death penalty. Although India has so far strongly advocated the continued execution of the death penalty, the judiciary reserves the right to commit cruel crimes, and in extremely rare cases, considering the number of people sentenced to death and executed, the numbers are self-evident. There were only three executions in the past ten years, and all three were terrorists. In Bacchan Singh v. the State of Punjab, the Supreme Court has made it clear that the death penalty can only be imposed in the “rarest” cases, which shows the original intention of the court to minimize the practice of the death penalty. This judgement became a benchmark for all the courts in India on which they were to base their decisions of giving death sentences in cases where the guilty had committed a capital offence.

Thus, not only do the courts exercise their power to award capital punishment in extremely rare cases but also many of these death sentences are commuted to life imprisonment on grounds of health, pregnancy, family conditions. Whenever any court awards a death sentence, it mentions special reasons for giving such punishment relating to the special circumstances of the case. Now, it is up to the judiciary and legal experts to decide[1].

[1] Gaur, KD “Indian Penal Code”.

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