CONSTITUTIONALITY OF DEATH PENALTY IN INDIA
Imposing of death sentence is one thing that always gets more attention to be discussed, including from the view of constitutional validity in each countries. A serious discussion regarding to death sentence in Indonesia, whether it should be continued or abolished, has come up before the Court after some applicant applied a petition to Indonesian Constitutional Court in order to challenge the constitutionality of death penalty in Drugs and Narcotic Act against the provision of Rights to Life on Indonesian Constitution, 1945. This article is the first chapter of several other chapters with the topic of “death penalty” which will be flattened on the following days.
The provision of death penalty as an alternative punishment for murder under s. 302, IPC was challenged as constitutionally invalid being violate of Arts. 14, 19 and 21 of the Constitution in a series of cases. It was contended in Jagmohan Singh v. State of U.P. that the constitutional validity of death sentence has to be tested with reference to Arts. 14 and 19 besides Art. 21 of the Constitution as the right to life is fundamental to the enjoyment of all these freedoms as contained in Art. 19 of the Constitution.
It was further contended that the Code of Criminal Procedure prescribed the procedure of finding guilt of an accused but regarding the sentence to be awarded under s. 302, IPC the unguided and uncontrolled discretion has been left to the Judge to decide the sentence to be awarded. The Supreme Court held that the death sentence as an alternative punishment under s. 302, IPC is not unreasonable and it is in the public interest and the procedural safeguard provided to the accused under the Code of Criminal Procedure is not unreasonable leaving the discretion with the judge to sentence an accused, convicted for murder either to death or life imprisonment Death sentence as an alternative punishment for life was held valid.
Though the court did not accept the contention that the validity of the sentence to death has to be tested in the light of Arts. 14 and 10 of the Constitution. But in Rajendra Prasad v. State of U.P. the court accepted the proposition that the validity of the death sentence can be tested with reference to Arts. 14, 19 and 21 of the Constitution. The Supreme Court suggested that in exceptional circumstances death sentence should be imposed only when public interest, social defence and public order would warrant. Such extreme penalty should be imposed in extreme circumstances. The court in Barchan Singh v. State of Punjab upheld that constitutional validity of death sentence. The court reasoned that penal law does not attract Art. 19(1) of the Constitution. If the impact of the law on nay of the rights under Art. 19(1) is merely incidental, indirect, remote or collateral, Art. 19 would not be available for testing its validity.
Accordingly, the court held that s. 302, IPC for its validity would not require to qualify the test of Art. 19. The procedure provided in the Code of Criminal Procedure for imposing capital punishment for murder cannot be said to be unfair, unreasonable and unjust. But Justice Bhagwati in his dissenting judgment held that s. 302, IPC and s. 354(3), Cr PC violation of Arts. 14 and 21 as these provisions confers unguided power on the court which irrational and arbitrary.
Thus, death sentence should be imposed in the rarest of the rare case. The Supreme Court in Machhi Sing v State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed. It should be considered whether there is something uncommon about the crime and the compelling circumstances for imposing death sentence after giving maximum weight age of the mitigating circumstances which is favour of the accused.
Jumman Kahn was facing the gallows on being sentenced to death for having brutally raped and strangulated to death a six year old girl named Sakina. The convict challenged the death sentence and its constitutionality. It was argued that death penalty is not only outmoded, unreasonable, cruel and unusual punishment but also defies the dignity of the individual and the issue needs reconsideration which stands like sentinel over human misery, degradation and oppression. The Supreme Court while endorsing its earlier view as to the constitutionality of death sentence held that the failure to impose death sentence is such grave cases here it is a crime against the society, particularly in case of murders with extreme brutality will bring to naught the sentence of death penalty provided by s. 302 of IPC. The only punishment which the convict deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust is nothing but death as a measure of social necessity and also a means of deterring other potential offenders.
The Supreme Court in earlier case Banchan Singh v. State Punjab upheld the constitutional validity of imposition of death sentence as an alternative to life imprisonment and it was further that it is not violate of Arts. 14 and 21 of the Constitution. Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher Singh v State of Punjab held that death sentence is constitutionally valid and permissible within the constrains of the rule in Bachan Singh (supra). This has to be accepted as the law of the land. The decisions rendered by this court after full debate has to be accepted without mental reservation until they are set aside.
The challenge touching the constitutionality of the death sentence also surfaced in Triveniben v State of Gujarat and in Allauddin’s case and the Supreme Court asserted affirmatively that the Constitution does not prohibit the death penalty.
It is in the rare cases, the legislature in its wisdom, considered it necessary impose the extreme punishment of death to deter others and to protect the society. The choice of sentence is left with the rider that the judge may visit the convict with extreme punishment provided there exist special reasons for doing so. The provision of Art. 302, IPC is consistent with the Constitutional Provision of Art. 21 which enjoins that personal liberty or life of an individual shall not be taken except according to the procedure established by law. Whether death penalty violates Art. 14, 19, and 21 of the Constitution came up for consideration before the Supreme Court in Bachan Singh v. State of Punjab and the court answered the contention in the negative.
In the face of the statutory provision in cl. (3) of s. 354 of the Cr. PC requiring giving of special reason while imposing death penalty which is consistent with Art. 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, the extreme plea of death in no case cannot be countenanced and death penalty cannot be said to be violate of Art. 21 of the Constitution. Section 302, IPC casts a heavy duty on the court to choose between death sentence and imprisonment for life and court must show high degree of concern and sensitiveness in the choice of sentence. It was held in Allauddin Mian v. State of Bihar that special reason in s. 354, Cr. PC should be sufficient safe guard against arbitrary imposition of extreme penalty. Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considered the sentence of that magnitude justified.
That is all about the constitutionality aspects of death penalty according to the interpretation of Supreme Court on Indian Constitution. The decisions of Indian Supreme Court that I have discussed above, however, couldn’t be throughout adopted in Indonesia. But, some of its reasoning can be considered as a guidance for any Indonesian stakeholders.
 Pasal 302: “Whoever commits murder shall be punished with death, or 1[imprisonment for life] and shall also be liable to fine.”
 Article 14 Equality before law: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
 Article 19 Protection of certain rights regarding freedom of speech, etc:
“(1) All citizens shall have the right –
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) to practice any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order, reasonable restrictions on the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clause (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Schedule Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, –
(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”
 Article 21 Protection of life and personal liberty: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
 SIR 1973 SC 947.
 AIR 1979 SC 917.
 AIR 1980 SC 898.
 AIR 1983 SC 947.
 Jumman Khan v State of UP AIR 1991 SC 345.
 AIR 1982 SC 1325: (1982)3 SCC 24.
 AIR 1983 SC 465: (1983)2 SCC 344.
 AIR 1989 SC 1335: (1989)1 SCC 678.
 AIR 1989 SC 1456.
AIR 1980 SC 898: (1980)2 SCC 684.
AIR 1989 SC 1457.
- Bhat, P. Ishwara, “Fundamental Rights: A Study of Their Interrelationship”, Eastern Law House, New Delhi, 2004.
- De, D.J., “Interpretation & Enforcement of Fundamental Rights”, Eastern Law House, New Delhi, 2000.
- Dehsta, Sunil and Kiran Dehsta, “Fundamental Human Rights: The Rights to Life and Personal Liberty”, Deep and Deep Publication Ltd., New Delhi, 2004.
- Jai, Janak Raj, “Death Penalty”, Regency Publication, New Delhi, 2005.