“THE CHANGING TRENDS OF THE JUDICIARY WITH RESPECT OF THE DEATH SENTENCE IN INDIA.” Submitted byMr. Shiv Kumar Raghuwanshi Under the Supervision ofMrs. Priyamvada Tiwari (L.L.M. in Criminal Law )Assistant Professor,Indore Institute Of Law,Indore, Madhya Pradesh ABSTRACTThe execution of offender sentenced to death after conviction by a court of law for a criminal offense is called a death penalty or Capital punishment. Death sentenced is a legal and highly deliberation matter. But rarely provided in India. Imposition of the death penalty is not always followed by, because of the possibility of commutation to life imprisonment (under section 54 of IPC). Capital punishment is applied in murder with rebarbative element i.e.child murderers,multiple homicide,torture murder and mass killing etc such as terrorism, genocide or massacre. Supporters of the death penalty are supported this statement. Since 1995, it has been used only rare cases on Auto Shankar in 1995, Dhananjoy Chatterjee in 2004, Ajmal Kasab in 2012 and Afzal Guru in 2013. The Indian legal system too has contracted with the constitutionality of death penalty and the circumstances in which it may be granted. Supreme Court prescribed in Bachan Singh case the ‘rarest of the rare’ test. This paper concludes by observing that Indian judiciary is moving away from the implementation of death penalty as there is greater emphasis on alternative modes of punishment (under section 53 of IPC) and also the international legal developments which are against the death sentenced. Chapter I – INTRODUCTION1.1 Review of literatureDEATH UNDER THE SHADOW OF JUDICIARY, Dr. N.M. Ghatate, OceanBooks Pvt. Ltd, 2016.The book takes into account all the important changes that have take place in death sentence. The book examine the constitutional status of death penalty. It deal with the historical background, penal law of India with case law and judicial discretion regarding death punishment in parliament. They examine the death punishment under military law. In which they describe public response relating to death sentence in India.THE INDIAN PENAL CODE, Ratanlal and Dhirajlal, 35th Edition 2017 Lexis Nexis.This book contain a quantitative analysis of the laws relating to death sentence and other criminal offence also. In which provide a all section of IPC 1872 and widely interpreted with the reference of cases laws. This book is completely update in respect of all relevant legislations, case laws and judgment. Provides critical analysis of judgments and the book also refers essential provision of code of criminal procedure. 1.2 Aim of the researchThe main aim of the research to analysis the changing trends of the judiciary with respect of the death sentence in India. Death sentence reduce crime or not in society as well as have a fair in the eye of offender. Everyone has an inalienable right to life as life is valuable, even of those who commit murder or any other crime. Why India has voted against UN General Assembly resolutions for abolishment of capital punishment on 4 occasions, the latest being in 2012. 1.3 Objective of ResearchTo find the effect of death sentence in society either positive or negative.To analysis the trends of death sentence in India.To recognizes constitution validity of death sentence with respect to Article 14, 19 and 21. 1.4 The scope of researchThis research have a wider scope. Through this research we come on conclusion that death sentence is necessary in India or not and also find constitution validity. This research only for India but also see the effect of death sentence in different country of the globe.UN General Assembly calling to the other county for moratorium/abolishment of death penalty but many county not accepted it. Why they county not accepted to abolishment of death sentence. In this way the topic have a wider scope at nation as well as international level.1.5 Research QuestionWhether the death sentence is a violation of Human Right as well as Fundamental Right.Whether the doctrine of “Rare to Rare case” help to find a case were death penalty provided.Whether to provide a death sentence to a person below the age of 18 years, right or wrong.Whether the Indian judiciary is moving away from the implementation of death penalty. 1.6 Research MethodologyThe methodology adopted for this research was doctrinal comprising a systematic study and analyses of published research i.e. journals, books, online sources, judicial pronouncements, reports of committees.This is a doctrinal study where the researchers are trying to analyzing the critical role of Indian judiciary in the matter of death penalty in India. This study requires a depth study of leading case laws related to death sentence. Chapter II – CONSTITUTIONAL VALIDITY OF DEATH SENTENCEIn a case under Section 302 of the IPC, the judges are supposed to choose between death and imprisonment for life. The question of life and death is left to a judge, susceptible to value preferences and error or judgement like any other. It is here that the constitutionality of laws providing Death Penalty becomes suspect. In addition, the constitution of India guarantees to every person a fundamental right to life subject to its deprivation by the procedure established by law, it can be argued that sentence of death in the present form violates the citizen’s right to life. Further Art. 14 of Constitution declares “equality before law and equal protection of the laws”, which means that no person shall be discriminated against unless the discrimination is required to achieve equality. The concept of equality incorporated in Art. 14 finds echo in the preamble to the constitution. Capital sentence, it seems, is therefore, an anti-thesis of one’s right to life. It is an indisputable fact that there is nothing in the Constitution of India which expressly holds capital punishment as unconstitutional, though there are provisions that suggest that the constitutional scheme accepts the possibility of capital punishment. Constitutionality of capital punishment may be considered in respect of two aspects of the matter. These two aspects of the matter may have to be considered separately so as to have a clear vision on the subject at issue. 1. Constitutionality of capital punishment as such. 2. Constitutionality of the provisions of I.P.C. providing for capital punishment. But before discussing these two issues, we have to discuss the cases in which constitutionality of the death sentence was challenged. In case of Jag Mohan Singh Vs. State of U.P supreme court held that capital punishment was not violative of Articles 14, 19 and 21 and was therefore constitutionally valid. After the decision of Jagmohan’s case the constitutional validity of death sentence was not open to doubt. In Rajendra Prasad V. State of U.P. Krishna Iyer, J., held that capital punishment would not be justified unless it was shown that the criminal was dangerous to the society. under section 354(3), Cr.P.C., would be violation of Art. 14 which condemns arbitrariness. The discretion to make choice between the two punishments is left to the judges and not to the executive. In Bachan Singh V. State of Punjab the S.C. by majority overruled Rajendra Prasad’s decision and has held that the provisions of death penalty under section 302, I.P.C. as an alternative punishment for murder is not violation of Article 21. In which a doctrine rare to rare case introduce.In Deena V. Union of India The court unanimously held that the method prescribed by section 354(5; for executing the death sentence by hanging by rope does not violate Art. 21. If they not death due to the mischief of hanging. So they hanging again until death and this is not a violation of article 20(2).In Madhu Mehta V. Union of India the mercy petition of the petitioner who was sentenced to death was pending before the President of India for about 8 or .9 years. Following Triveniben’s decision the court directed the death sentence to be commuted to life imprisonment as there were no sufficient reasons to justify such a long delay in disposal of the convict’s mercy petition. This provision given under section 54 of IPC. 2.1 The Doctrine “Rarest of Rare Case” (1980-83)In 1973 to 1980, the legislative dictate has changed from death sentence being the norm to becoming an exeption, and necessarily to be accompanied by reasons. Bachan Singh vs. State of Punjab, was a landmark in the escalating debate on the question of the compatibility of the death sentence with Art. 21 of the Constitution. In Machchi Singh vs. State of Punjab The Supreme Court upheld the death sentence of the three out of four persons. Justice Thakkar, speaking for the court, was impelled to attempt a definition of the ‘rarest of rare’case, thus : 1. When the murder is committed in any extremely brutal manner. 2. When the murder is committed for a motive which evinces total depratity and meanness. 3. Antisocial or socially abhorrent nature of the crime. 4. Crimes of normous proportion, i.e. multiple murders. 5. Personality of victim of murder for example an innocent child or a helpless woman. However, these are apparently the judicially evolved guidelines which are to assist the courts in determining sentence.2.2 After Bachchan Singh’s CaseIn Ujagar Singh vs. Union of India, where the accused was 17 years when the offence was committed. Taking into consideration the extreme young age of the petitioner, the Supreme Court set aside the sentence of death. On the other hand, it may not be a relevant factor where the accused, “clearly shared the common intention of murder,” the fact that he was between 18 and 20 years could not be an extenuating circumstance. In Dharampal Singh vs. State of Rajasthan, where accused intentionally causing injuries on chest of deceased by fire arms, civil, criminal and revenue cases pending between complainant party & the accused party prior to incident, it was held not a rarest of rare case.In Kanta Tiwari vs. State of M.P. the Supreme Court held that death sentence is eminently desirable not only to deter others from committing such attrocious crime but also to give emphatic expression to society’s abhorrence of such crime.2.3 Capital punishment is a justiceIn Kasab’s case, the first mercy petition will be sent to the Governor of Maharashtra. If that is rejected, a second and final petition will be sent to the President of India, Under India’s constitutional system, the actual decisions are not made by the Governor or the President, but instead by the State and Central governments, as the constitutional heads are bound by the advice of their respective Cabinets. Ajmal Amir Kasab’s death sentence has brought the issue of capital punishment again into the spotlight. There are already calls for his execution although the legal process is far from over. However, given the irreversible and final nature of capital punishment, a number of steps are required be to taken before any execution can take place. This decision provide a justice for a large number of people who effected or death in Mumbai terrorist attack in 26/11/2008.2.4 Commutation of sentence of deathUnder section 54 of IPC 1860 said that In every case in which sentence of death shall have been passed, by the appropriate Government may, without the consent of the offender, reduce the punishment for any other punishment given under by this Code.The Code of Criminal Procedure 1973 in its Section 354 (3) provides that ‘In case of death sentence special reasons are to be stated. Now imprisonment for life was the rule and capital sentence was an exception.”In Asgar vs. State of U.P. “The murder was premeditated and we hardly find any extenuating circumstance in this case. He must, therefore, pay the extreme penalty of death”.In Thanglah vs. State of Tamil Nadu. The appellant was sentenced to death on the charge of committing the murder of his wife, kothaiyaki. Justice Chandrachudh, for Supreme Court, held that it is clear from the various facts and circumstances of the case that he had committed the murder under the grave stress of acute poverty for which he was taunted from time to time by his wife and other relatives. Considering that the appellant had led a happy married life with the deceased for ten years and the fact that the couple has three small children, the sentence may with some justification be reduced to life imprisonment. Chapter III – CHANGE IN JUDICIAL REVIEW IN AWARDING DEATH SENTENCES.To understand the judicial attitude towards death penalty in the last five decades, this period can be divided in five parts depicting the judicial response to the legislative changes made in this direction in IPC’s as well as Cr.PC’s old codes. The five parts are as follows: 1. When Death Penalty was a rule i.e.1950-1955 In Sunderlal Vs. State of M.P. The Court held that “the circumstancial evidence, therefore, was sufficient to hold the accused responsible for murder of the deceased and the accused was rightly convicted of the offence under sec. 302 IPC and sentenced to death.” 2. Age of Judicial Discretion i.e.1955-1973In Jaghir Singh Vs. State of PunjabThe Supreme Court deprecated such a dastardly act and observed “The murder was ruthless and cold-blodded. There are no extenuating circumstances and Supreme Court found it just and proper to inflict death penalty. 3. When Life Imprisonment was a Rule i.e.1973-1980In Suresh vs. State of Maharashtra That the evidence adduced by prosecution, that it was the appellant alone who inflicted the stabs and thereby caused the death of the deceased. Thus, we see no mitigating factors and therefore, we confirm the sentence. 4. Birth of the Doctrine: “Rarest of Rare Case”i.e.1980-1983 In Bachan Singh vs. State of Punjab, 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. Then provide a doctrine “Rarest of Rare Case”. 5. After Bachchan Singh’s Case Era i.e.1980- at present. In SK. Ishaque vs. State of Bihar murder of three persons by burning them with the help of kerosene inside a shop. The Supreme Court held that in such circumstances, death sentence is not justified. The cases divided in these phases clearly indicate the changing trend of judicial review during the last years. 3.1 SuggestionsLaw Commission in its 262nd report submitted recently recommended the abolition of capital punishment for all crimes in India, except the crime of waging war against the nation or for terrorism-related offences. It provide several factors to justify removing the death penalty, including its abolition by 140 other country, its arbitrary and flawed application and its lack of any proven deterring effect on criminals. Internationally this practice has been discarded by majority of the nations today. As a leader of human rights and emerging nations, it does not set a right example. India has been criticized internationally in handling its insurgency in North east and Kashmir. Abolishing capital punishment will augur well for us internationally.However, as Law Commission said that it is the not right time of abolition experiment, the issue needs to debated and researched in more detail. But, capital punishment should not become a pent-up of society ‘simpplsd anger and sense of judgment. It is also against the reformative purpose of the Criminal Justice Systemand we must remember the words of Oscar Wilde, “Every saint has a past and every sinner a future.” It is necessary to work with Law commission and UN Assembly for a human right of a people. Chapter IV – CONCLUSION Capital punishment jurisprudence in India is full of inconsistencies and controversies. Executive delay in mercy petition without any convincing arguments is a routine matter for which no one is made accountable. Judiciary from 1980 inaugurated forming mandatory guidelines with rarest of rare case doctrine. It was, however, found that the doctrine has not been consistently exercised.Judicial blunders in application of rarest of rare case principle were pointed out in various cases.A study of death sentences after the Swamy Shraddananda case reveals that many cases which normally would have resulted in award of death sentences to the prisoners, have got the benefit of various “alternative option” between the minimum sentence of 14 years to a sentence of full life under section 55 of IPC 1860. Moreover, Indian Jurisprudence on death penalty is not oblivious to the development in international law as also worldwide trends on the issue. The Supreme Court in Bariyar referred to the international trends in the following terms:”Although these questions are not under consideration and cannot be addressed here and now, we cannot help but observe the global move away from death penalty. Latest statistics show that 138 nations have now abolished the death penalty in either law or practice. We are also aware that on 18th Dec. 2007, the United Nations General Assembly adopted resolution 62/149 calling upon countries that retain death penalty to establish a worldwide moratorium on executions with a view to abolishing the death penalty.” Bibliographyl Primary sourceü Constitution of India, 1950ü Code of criminal procedure, 1973ü Indian penal code, 1860 l Secondary source ü BooksØ Dr. N.M. Ghatate, DEATH UNDER THE SHADOW OF JUDICIARY, 2016 OceanBooks Pvt. Ltd.Ø Ratanlal and Dhirajlal, THE INDIAN PENAL CODE, 35th Edition (2017) Lexis Nexis.Ø Dr. J.N. 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