A Provision for Clemency of Capital Punishment in India

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Crime is as old as human civilization. Since time immemorial crime has been with us in different degrees. Every society has a pattern of suitable conduct and some human beings in every society fallen outside this configuration. It is the reality which we can accept that crime cannot be abolished. Various reasons for the crime are greed, jealousy, anger etc.

 ‘Punishment’ is the force used to enforce the law and to reduce the crime. It is the duty of the State to punish the criminals in order to maintain law and order in the society. In the past, there wasn’t any specific laws. The quantum and extent of punishment was largely dependent on the King. With time modern theories of punishment were developed and voluntary submission of our rights and power to maintain law and order was given to state. The most brutal or we can say the highest punishment awarded in present time is ‘Capital Punishment’. Capital Punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial. 

Capital punishment is also known as ‘Death Penalty’. It is a government-sanctioned practice whereby a person is put to death by the state as a punishment for a crime and can only be used by a State. The actual process of killing the person is called an execution. It is usually only used as a punishment for particularly serious types of crime. The method of punishment varies from country to country. Some countries hang the culprits until death and some shoot or give them a lethal injection.

Capital punishment was term to be oldest trend to punish for a crime from ancient time, the only difference is in modern era death penalty use to be given on rarest of rare case and in ancient period it use to be given on petty offences. The punishment at that time was awarded in arbitrary manner by king. Death penalty was usually given for murder, theft, trespass and misuse of valuable things.

The root of death penalty laws was traced as for back in Babylon law. Hammurabi who was first metropolis, the king of Babylon issued a set of laws to his people called Hammurabi Code. Hammurabi Code provide harsh standard by which Babylon could order their lives and treat one another. In Hammurabi Code crime against high class people having a large amount of money considered more serious than poor people. In Hammurabi arbitrariness has been erase due to written law but the punishment of death was normal in crimes like murder, wrong at work, trespass etc.

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The legislative dictate has changed from death sentence being the norm to becoming an exception, and necessarily to be accompanied by good reasons. Bachan Singh v. State of Punjab, AIR 1980 SC 898 63 was a landmark in the escalating debate on the question of the compatibility of the death sentence with Art.21 of the Constitution. The Supreme Court while holding the validity of the death penalty expressed the opinion that a real and abiding concern for the dignity of human life postulates resistance for taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases, when the alternative option is unquestionably foreclosed. 

However, the Court declined to formulate any aggravating or mitigating factors as it would fetter judicial discretion, but held that a murder 'diabolically conceived and cruelly executed' may attract extreme penalty. It is not possible, the court opined, to feed numerous imponderable circumstances in an imperfect and undulating society. But what are those rarest of rare occasions is the dilemma. What appears as brutal and gruesome, to one judge may not appear to be so to another. 

For example, in one case the murder of wife and two children with the motive of leading life with the paramour could not convince Justice for death penalty, while the other Justice wondered what else could be a fit case for death penalty than the one. It is submitted that if the difference in perception is so glaring among two judges of the highest court then what is relative position among a very large number of session's judges. It was, however, in Machi Singh v. State of Punjab, (1983) 3 SCC 470 where four men were awarded death sentence by the Sessions Court and the High Court for shooting down seventeen persons including men, women and children within their homes at night, in five incidents. The motive was a family feud. The Supreme Court upheld the death sentence of the three-four persons. 

The Indian Penal Code awards death sentence as a punishment for various offenses. Some of these capital offences under the IPC are punishment for criminal conspiracy (Section 120B), murder (Section 302), waging or attempting to wage war against the Government of India (Section 121), abetment of mutiny (Section 132), dacoity with murder (Section 396) and others. Apart from this, there are provisions for the death penalty in various legislations like the NDPS Act, anti-terrorism laws etc.

The Indian Constitution has a provision for clemency of capital punishment by the President. Once the Sessions Court has awarded death sentence to a convict in a case, it must be confirmed by the High Court. Even after that, the convict may prefer an appeal to the Supreme Court. If this also fails the accused has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State. Detailed instructions regarding the procedure to be observed by the states for dealing with petitions for mercy from or on behalf of convicts under sentence of death and with appeals to the Supreme Court and applications for special leave to appeal to that court by such convicts are laid down by the Ministry of Home Affairs.

Similarly, the pardoning powers of the Governor of a State are mentioned in Article 161. These provisions ensure that the accused is sentenced to death only after there is no room for error left. The culprit gets multiple avenues to appeal and now life imprisonment has become the rule while the death sentence is the exception.

Preamble of India which says ‘we the people of India’ directly indicate it as a democratic country where public at large prevails. Laws are made for human beings so that one may live their life with dignity without affecting others right. When any crime committed by accused he must be punished by the state through law as it effect public or the innocent victims. Capital Punishment is the most severe punishment of the society. India did not abolish capital punishment but they limit its scope by awarding capital punishment on rarest of rare cases. 

According to our judiciary it must be imposed in exceptional cases i.e. in rarest of rare cases with special reasons. India is a nation of different cultures, different types of people having their different way of thinking and living. The acts of crimes are not the trend of modern area but it has taken place from ancient period. Though in ancient period death punishment used to be awarded on small offences but the only logic behind it to save the public at large and create horror in their minds so they stop doing crime from the fear of capital punishment. 

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