Capital Punishment is the most extreme form of legal penalty that is ordered against a malefactor for committing some of the most grotesque and hideous offences against society. In our country, the tenet of the Rarest of the Rare cases is followed wherein the perpetrator is hanged to death only when the act committed is an “extremely brutal, ridiculous, diabolical, revolting or reprehensible manner to awaken intense and extreme indignation of the community.” Since this criterion is subjective and left to the discretion of judges, the application of the doctrine has been subject to multitudinous debates and discussions by many prominent jurists. This blog is an attempt to critically examine the death penalty in India as well as the criterion applied to adjudicate it while awarding the death penalty.
Although it had been attempted to abolish the system of capital punishment in Travancore in 1944, it had been reinstituted in 1950. A bill was also put forward in the Lok Sabha in 1956 for its abolishment but stood repudiated by the Parliament of India in 1961. Back in 1963, when the Law Commission was asked to give its opinion on the abolishment of capital punishment, it gave its postulations in 1971 wherein it spurned the idea of abolition. Further, in 1980, five judges of the Apex Court of India deliberated on its rationale. Out of these, four judges were in favour of retaining it, while one of the judges was in favour of repudiating it.
There are seven crimes in India for which Capital Punishment is given. These are murder, dacoity along with murder, a war against the state, untrue shreds of evidence that result in capital punishment to a naïve person, abetting an insane person or a minor to commit suicide, revealing our country’s secrets to other nations. Although Capital Punishment is still sanctioned in our country, four types of persons are spared from it: The first category includes children below the age of 15 years, the second category includes pregnant women, the third category includes mentally unstable people and the fourth category includes persons aged more than 70 years. If the Hon’ble Supreme Court rejects appeals, one can also appeal to the President in the form of mercy petitions.
The doctrine of the ‘Rarest of the Rare cases’ has emerged as a significant impediment for courts in exercising their discretion in pre-mediated and horrendous cases. The perpetrators who deserve to be executed have efficaciously escaped the death sentence and the prisons end up being their guest houses for them. There have been some similar judicial precedents in this regard. For example, in Teja Singh v. Mukhtiar Singh, the accused ran down his father’s rival with a tractor, reversed the tractor to come back and shot and killed him with his gun. This was not considered to fall within the ambit of the ‘Rarest of the rare cases’ and thus the accused was not charged with a death sentence. Even in Raja Ram Yadav and Others v. the State of Bihar, the Apex Court did not impose the death sentence contending that it was not the rarest of the rare cases although it had been conspicuously held that the murder of twenty-six persons has been committed in a prepense manner with utmost cruelty and atrocity even though the victims were gullible and did no harm to the perpetrators. A prominent case in which the ‘Rarest of the Rare case’ theory propagated in Bachan Singh has been put to use was in letting off an abhorrent murder reported in State of Maharashtra v. Damu Gopinath Shinde wherein a girl aged 11 years was horrendously murdered, motivated by the avarice for gold. While the court opined that the act committed by the culprit was vile, it was not held to fall within the ambit of the ‘Rarest of the Rare Cases’ on the ground that the act was done due to sheer incomprehension of the accused owing to his beliefs in various superstitions.
RECONSIDERING THE DEATH PENALTY:-
The efficaciousness of a penal system is to be analysed in light of its effects on society in general and the criminal in particular. Every nation should have a definite and robust penal programme because the punishment of offenders though definitely onerous is unavoidable in the interest of the masses at large. Criminals should be divided into various categories such as the young offenders must be treated differently from habitual ones so that somewhere or the other, there lies a slight scope of reformation.
It is glaring to note that the effectiveness of punishment depends upon the appropriate functioning of agencies that take control of criminal justice. The functioning of police and prisons requires amelioration so that people do not lose their faith completely in the justice delivery mechanism. The reformation of criminals should be the object of punishment while ‘individualization’ should be the method of it. Emphasising the reformative aspect of penal justice, the Apex Court in Mohammad Giasuddin vs State of Andhra Pradesh, contended that the state has to rehabilitate the offender rather than seek any sort of vengeance or vendetta from them. Many contemporary penologists are antithetical to the retention of capital punishment on certain humanitarian grounds. They argue that the killing of a man is inhumane and barbarous. Apart from it, if a virtuous and a sinless person is executed due to erroneous justice that would end up doing irrevocable harm to him. Moreover, putting a perpetrator to death virtually amounts to bestial harm which serves no constructive purpose.
The author solemnly believes that capital punishment for murder and various other capital offences serves as a much greater disincentive than life imprisonment. Courts must direct and conduct shock therapy to prevent certain crimes as the threat of death to the offender might still be a promising strategy in some areas of murderous crime. Some of the crimes are so appalling that society persists in an apposite punishment, because the offender deserves it, irrespective of the fact as to whether it is a disincentive or not. Retribution continues to remain a socially acceptable function of penalty or punishment. The premonition for nemesis and retribution is intrinsically linked to the nature of man. The fact however remains unchanged, that whenever there is a grave crime, the society feels a sense of disapprobation. It is laudable that the Law Commission of India in its recent report had proposed a humane mode for execution of the death sentence by giving three choices to the condemned prisoner. The Report of the Justice Malimath Commission had made meritorious postulations for making the criminal law more effective, by taking into consideration the modern trend of crimes. However, the recommendations relating to rape require careful consideration, as the Report of the Malimath Commission had not concentrated on the fetters imposed by the “Rarest of Rare cases” theory, wherein the perpetrators successfully escape from a death sentence and continue to enjoy the hospitality of the State. It is quintessential and paramount for the Parliament to consider the imperative need to reconsider and arduously tackle the “Rarest of Rare cases” theory, having regard to the urgency in dealing with vile crimes.
Author(s) Name: Pragati Khandekar (Army Institute of Law)
Macchi Singh v. State of Punjab 1983, SCR (3) 413.
Teja Singh v. Mukhtiar Singh 1995, AIR 2411.
 Raja Ram Yadav and Others vs State of Bihar 1996, AIR 1613.
 State of Maharashtra vs Damu Gopinath Shinde 2000, SC 1691.
Mohammad Giasuddin vs State of Andhra Pradesh 1977, AIR 1926.