ABOLITION OR RETENTION OF DEATH PENALTY IN INDIA:
A CRITICAL REAPPRAISAL
Every saint has a past, every sinner has a future
V. R. Krishna Iyer, J.1
There has been a long quest of human beings to curb and control deviance and promote conformity to normative behaviour in human culture since times immemorial. Various ways and means have been attempted in this direction. The criminologists, jurists, sociologists and legal professionals have dealt with various aspects of the crime and the penal systems. Death penalty is one of the most debated, ancient forms of punishment in almost every society. Despite countless studies, several researches and plenty of experiments no conclusions have been reached yet, which can be socially, morally and legally accepted. India has also been witnessing this debate.2 This debate was revived in India when all the 26 defendants in the Rajiv Gandhi assassination case were sentenced to death. Recently, a court awarded death sentence to Dubai based underworld don Aftab Ansari and six others for the attack outside the American Centre that left five policemen dead.3
The execution of Dhananjoy Chatterjee4, on 14th August 2004 had once again revived this debate all over India. Dhananjoy Chatterjee was a security guard of a housing society in West Bengal who raped and murdered a school girl of that housing society.
“Public outrage brought back the debate on death penalty centre stage in a case which abolitionists found difficult to defend. However, the ♣
The author is presently a student of Fifth Year, B.Com, LL.B. (Hons.)~An integrated five years graduation degree in law from the Gujarat National Law University, Gandhinagar (India). 1
Pillai P.S.A., Criminal Law, 9th Edition, 2000, Butterworths India, New Delhi, p. 286. 2
Should capital punishment be abolished? The Times of India, June 27, 2004. 3
Gallows for seven in Kolkata American Centre attack, The Times of India, April 27, 2005. 4
Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, AIR 2004 SC 3454. ST. DE DREPT ROMÂNESC, an 20 (53), nr. 3–4, p. 275–289, BUCUREŞTI, iulie–decembrie 2008
aftermath of the hanging has led to a plethora of issues, which were ignored and brushed aside such as the emergence of the hangman as a role model and the number of mock hangings leading to deaths of children. The impact of punishment in brutalization of society is no more a rhetoric issue, but a reality.”5
This paper discusses death penalty comprehensively with a holistic perspective in the wake of globalization and the institutionalization of human rights. It becomes necessary to examine the relevance and legitimacy of death penalty in India. II. HISTORY
During the reign of Mughal emperors, barbaric methods of putting an offender to death were used. It is interesting to note that the Sikh Emperor Maharaja Ranjit Singh never hanged anyone during his reign. The British, however, used death by hanging as the only legalized mode of inflicting capital punishment. In the British era, death sentence was executed by hanging the convict by the neck till death. The same was reflected in the Indian Penal Code, 1860 (hereinafter referred to as the IPC) drafted by Lord Macaulay, which is still in force.
There have been unsuccessful attempts in independent India to abolish death penalty. A bill was introduced in the Lok-Sabha in 1956 to abolish the capital punishment, which was rejected by the House. Efforts made in the Rajya-Sabha in 1958 and in 1962 were also fruitless. The Law Commission of India in its 35th Report (1967) under the Chairmanship of Justice J.L. Kapur has supported the continuing of death penalty for serious offences.
III. DEATH PENALTY UNDER THE INDIAN PENAL CODE, 1860
The major substantive criminal law in India of the IPC provides for death sentence and life imprisonment as alternative punishment under certain circumstances.6 There is not a single...