Context: More than seven years after a trial court treated them as “repeat offenders” and handed out the first-ever capital punishment to them under new provision 376 (E) of Indian Penal Code (IPC), the Bombay High Court commuted the death sentence of three “common” convicts in the twin 2013  Shakti Mill gang rape cases to life imprisonment.

What is Capital Punishment?

• Capital Punishment is also known as a death penalty.
• It is the execution of an offender sentenced to death after conviction of a criminal offence by a court of law.

Death Penalty Crimes in India
Aggravated murder

• It is punishable by death in accordance with Section 302 of the Indian Penal Code, 1860

Terrorism-related offences not resulting in death

• Use of any special category of explosive that could endanger life or cause serious damage to property is punishable by death penalty.

Rape not resulting in death

• A person who inflicts injury in a sexual assault which results in death, may be punished under the Criminal Law Act, 2013.
• Gang rapes are punishable with death penalties.

Kidnapping not resulting in death

• According to Section 364-A of Indian Penal Code, 1860, kidnapping not resulting in death is an offence punishable by death.

Drug trafficking

• If a person convicted of an attempt to commit any drug trafficking offences, or financing of narcotic and psychotropic substances, he or she can be sentenced to death.

Treason

• The death penalty is given to any person who is waging or trying to wage war against the government and helping the defence forces to commit a mutiny.

Military offences not resulting in death

• Abetment of assault, mutiny of a defence personnel from his duty is punishable by death if committed by a member of the Army or Navy or Air Force.

Offenders excluded from Capital Punishment
1. Minor

• A minor who is under the age of 18 at the time of committing a crime is not executed.

2. Pregnant Women

• Clemency must be granted to a pregnant woman sentenced to death.

3. Intellectually Disabled

• A person while committing a crime who is mentally ill or unable to understand the nature of the act then the person can be held liable under the law and can be punished with the death penalty.

Constitutional Laws in India
Article 21 of the Constitution

• It guarantees the right to life and personal freedom to all, including the right to live with human dignity.

The constitutional principle can be stated as

• Only in rare cases, the death penalty should be used.
• Only on special grounds, the death penalty can be sentenced and should be treated as exceptional punishment.
• In the light of individual circumstances, the sentence should be individualized.
• The death penalty shall be confirmed by the High Court.

Under Article 136 of the Constitution and under Section 379 of the C.R.P.C there is a right to appeal to the Supreme Court.

• The accused may pray for forgiveness, commutation, etc. of sentence under Sections 433 and 434 of the C.R.P.C. and to the President or the Governors under Articles 72 and 161.
• In accordance with Articles 21 and 22, the accused has the right to a prompt and fair trial.
• The accused is not entitled to be tortured under Article 21 and 22.
• Under Articles 21 and 19, the accused has freedom of speech and expression under custody.

Arguments in favour of Death Penalty

• Every guilty person should be punished and the punishment shall be proportional to the crime that he/she has committed.
• This argument supports the concept of justice.
• Since society aims to reduce heinous crimes, the strongest punishment shall be awarded and death penalty is suitable for it.
• Offenders must be killed to prevent them from committing a crime again.
• It is considered as good to kill a man who is dangerous to the community and execution can be treated as a remedy to safeguard the interest of the society.
• There is no proof that death penalty has taken lives of innocent people hence, it should not be considered as discriminatory in nature.

Arguments against Death Penalty

• People presume that even the offenders in their worst case should not be deprived of their right to life.
• It is the obligation of the State to protect the society and punish the wrongdoers but it should be done in a least harmful way.
• The death penalty leads to execution of innocent people because of the deficiency in the system of justice.
• People believe that death penalty based on retribution to provide justice is morally wrong and is just an emerged form of vengeance.
• They argue that capital punishment is against it as sentencing life imprisonment to an offender can cause an endless pain to the offender.
• Death penalty only leads to brutalization of the society as well as the state's relation with its citizens.
• The current society does not endure torture and death penalty is not the solution to deal with dreadful crimes.