THE LAWWAY WITH LAWYERS JOURNAL

VOLUME:-7 ISSUE NO:- 7 , JANUARY 5 , 2024

ISSN (ONLINE):- 2584-1106

Website: www.the lawway with lawyers.com

Email: thelawwaywithelawyers@gmail.com

 

Capital Punishment: Should it be abolished and its status in India?

 

• Satakshi Dubey

BA.LLB

Symbiosis Law School, Hyderabad.

Abstract

Over the years many nations has abolished capital and has recognises the capital punishment as a violation of universal human rights, right to life, freedom from cruel, inhuman, tortuous punishments and also violation of international human rights institutions that advocates for the abolition of capital punishment and treaties. This article aims to understand about the status of capital punishment around the world and also to analyse the extent to which capital punishment has been restrained. “More than 70% of the countries in the world have abolished the capital punishment, although it is still employed in some countries like China, Japan, USA, and, Saudi Arabia etc. and many of these nations acknowledges that the capital punishment should be applied carefully, thoughtfully and with all necessary precautions to protect any person or accused from the abuse, misuse and, erroneous conviction. Although capital punishment is not completely abolished from the world but it is used as rarest of the rare cases. The article also studies the various reasons why the capital punishment is supported or opposed? At last, we will look into the comprehensive status of stand of India on capital punishment and its legal stands and grounds.

• Keywords: Capital punishment, death penalty, accused, wrongdoer, countries 

Introduction

Basically punishments are the result of the offence committed by any person. The basic aim of punishments is to deter the wrongdoer and reform them as a normal law-abiding citizen of the society. Punishments are based on the different types of theories of punishment and society of any nation. Capital punishment also known as death penalty which means a legal authority to cease or sanctions any person’s right to life and liberty. Capital punishment is foremost used in the most heinous crimes and in India in the rarest of rare crimes. Capital punishments are generally imposed a country’s governing authorities and it is the highest punishment that could be awarded in any legal system.

Historically, also there is no country in this world that didn’t have provisions or punishment of death penalty and the history of death sentence are dated back in 8th century B.C.

Many philosophers have given different theories of punishment which describes the form of the punishments and reason behind them.

1. Deterrence theory: this theory uses punishment as a threat to deter further or future offences.
2. Retributive theory: this theory emphasises punishment as an ethical and moral reaction to the transgression, aiming to make balance between justice and punishment by applying a sentence that is proportional to the damage done.
3. Rehabilitation theory: this theory makes a strong emphasis on helping criminal change and become a law-abiding member of the society by providing them with counselling, education, therapy etc and other forms of support, and etc. these are the some theories of the punishments.

The capital punishment come under the deterrent theory of punishment as it aim to set an example to prevent the future crimes.

World’s countries on capital punishment

Total ninety-eight nation has eliminated the death penalty, for any and all crimes, regardless of whether they were committed during a time of peace or conflict, or in accordance with civil or military criminal codes.

“As per the Amnesty International 2014 report on the execution of capital punishment found that there was total 778 execution of death penalty which were reported from 22 countries in the year 2013 and, 369 executions from 96 countries. Iran has highest number of execution, followed by Iraq, which is more than 169 executions, Saudi Arabia, more than 79 executions, and then USA with more than 39 executions per year.”

Although so many countries still use capital punishment but there are so many countries who are already abolished the death penalty either completely or partly. India has not completely abolished the capital punishment but they apply a doctrine of rarest of the rare which simply says that death penalty should only be awarded in extreme circumstances and on the extreme nature of offence committed.

“In the Bacchan v. State of Punjab case, the Doctrine of Rarest of Rare was established. In this decision, the Supreme Court attempted to eliminate a doctrine, specifically for crimes punishable by death, to lessen the uncertainty for judges about when to apply the worst penalty possible. By a vote of 4 to 1, the Supreme Court maintained the death penalty’s legitimacy and established the rule that it should only be used in the rarest of rare cases.”

Capital punishment in India

The Indian penal code only award death penalty on some certain offences. The Indian constitution under article 21 gives a fundamental right to life and liberty to every person and further it specifically mentions that no person whether the citizen of India or not shall not be deprived of right to life and liberty but except the procedures which are established by law.

Over the year India has also made major changes in their criminal laws, like recording the specific reasons by the judges for awarding death penalty, and not awarding the alternate punishment. Establishing the doctrine of rarest of the rare in any case, then if any alternate punishment is given in the law for death penalty then shall always try to choose the alternate punishment mentioned.

“The court established a set of standards in the Macchi Singh case to determine when a case qualifies as the rarest of rare. Below is an analysis of the criteria: 1. Manner of commission of murder – When the murder is carried out in a way that awakens fierce and extreme indignation of the community by being incredibly cruel, ridiculous, diabolical, revolting, or reprehensible; 2. Intention for the act of murder – In cases where the murder is motivated by extreme brutality and depravity, 3. The crime’s socially repugnant aspect – when a member of the underprivileged classes is murdered. This also includes cases of bride burning, commonly referred to as dowry deaths. 4. Crime magnitude – When the percentage of the crime is high, as in the case of several murders, for example. 5. Characteristics of the Murder Victim – If the Murder victim is a public personality, an elderly or disabled woman, etc.”

“The Supreme Court maintained the validity of the death penalty in the Jagmohan Singh v. State of U.P. decision, citing the fact that the death penalty is a social symbol of disapproval for crime rather than just deterrence. Additionally, the Court believed that India could not take a chance by trying to abolish the death penalty.”

“Why Rarest of Rare Doctrine? Since the term “Rarest of Rare” is not defined by statute, there is a debate every time the court imposes the death punishment. In certain cases, the accused has been found guilty of both murder and rape and has received the death penalty; in other cases, however, the accused has not received the death penalty despite having comparable circumstances and facts. It is exceedingly challenging to determine what difference there is between these sanctions.”

Suggestions: 

1. There should be established uniform rules: There should be a standard guideline established that covers the criteria used to classify situations as extremely rare.
2. The decision must be made carefully and reasonably: It is important to remember that, even in the unlikely event that there is evidence the accused will not cause additional harm to society; the murderer should not be executed.
3. The death penalty shall not be postponed once it has been declared: The Supreme Court ruled in Triveni Bai v. State of Gujarat that the execution procedure must be postponed for justifiable reasons to allow the accused to receive a fair trial.

Reasons for opposition of capital punishment

1. In any legal system, there is a chance that innocent people will be executed. There have been and will continue to be instances of innocent individuals being executed. No matter how advanced a legal system gets, human error will always be a possibility. The death penalty is final and irreversible, unlike prison terms.
2. Human rights and dignity are inconsistent with capital punishment. The most fundamental of all human rights, the right to life, is violated by the death sentence. Additionally, it breaches the prohibition against torture and other cruel, inhumane, or humiliating acts or procedures. In addition, since human dignity is innate in all people, the death sentence violates it.

Law commission report 262 of 5015: was submitted which stated that capital punishment should be completely abolished except the exceptional cases of crime against the nation to harm sovereignty and integrity or terrorism. The report also said that the time has that India should come forward for abolition of capital punishment. Though this a fact that death penalty is very rare in India, initially after independence India also did so many executions but later the court established rarest of rare doctrine. The total number of executions since independence that is since 1947, in India is 720.

Executed person:

The first person, who got executed in independent India, was Nathuram Godse for assassinating Mr. Gandhi.

Form last 20 years, only four people have been executed. One of them was Dhananjay Chatterjee, who was convicted for the rape and murder of a minor school girl.

The other person was a Pakistan based terrorist Ajmal Kasab who was executed in Pune, in 2012, and he was the one of arrested and convicted person of the 26/11 attack on Mumbai.

Afzal guru was hanged in the Tihar jail; he was convicted for attack on the Indian parliament in 2001.

Yakub Menon was hanged in the Nagpur prison in 2015; he was convicted for the Mumbai serial blast.

For the first time in the history of India four people were executed together in the Tihar central jail in 2020, they were committed for 2012 Delhi gang rape case, 6 accused were arrested in this case but one was minor out of them and 1 committed suicide. 

In favour or against the death punishment: although many people have different opinion about the capital punishment some might be in favour and some could be against the death sentence.

Arguments in favour:

1. According to the intensity of the crimes the convicted should be punished. For the heinous crime like brutal rape and murder, the convicted can’t be kept in the jail for life time.
2. Death penalty and the executions will create terror or fear in the mind of potential offenders for not committing such crime.
3. For the victim and its family the executions act a justice served and fairness rather the injustice or inhuman thing.
4. Public Safety will be maintained as dangerous offenders will execute to death guarantees they won’t have the chance to hurt society in the future.

Arguments against the capital punishment:

1. Many people argue against the capital punishment that it violates the article.21 of the Indian constitution which guarantees fundamental right to life and liberty.
2. Sometimes due to lack of the fact, reality, or awareness some innocent might get executed with death sentence. Although this has never happened in India because the trial process here in the courts is very long it takes years for the highest courts to pass the judgment of death penalty.
3. Another argument they put is death punishment doesn’t create any fear on the minds of potential offenders and so it doesn’t play any role in curbing the crime.
4. The execution of death penalty is against the international human rights laws and it violates the international laws.
5. Lastly, the process of execution is very inhuman gives very pain, suffering and torture to the convicted person and also to his family.

Legal procedures relating to capital punishment:

1. “The article 161 and 72 of the Indian constitution gives power to the governor of every state and the president of India to grant pardon, acquit or remission of the punishment awarded, also gives power to reverse death punishment, and power to pass or suspend any such sentence passed for a person convicted.” This procedure is called as mercy petition.

“In the case of Shatrughan Chauhan v. Union of India, the supreme court gave following measures to be taken account before awarding death punishment: 1. Character and antecedents of the offender, 2. Circumstances and the situation under which the crime was committed, 3. Time delay in trial or investigation of the case, 4. Where the High Court on appeal either reversed the acquittal or enhanced the sentence.”

In India methods of execution includes hanging and shooting:

1. Hanging till the death, under the criminal procedure code is method used by the normal courts for the convicted person general civilians,
2. Shooting is mentioned under the Army act of 1950 which says shooting is the method used for execution only for army personal who are convicted, though they also include hanging as a method of execution.

 

Conclusion

Punishment is not just to serve justice to the victim and their family but to all the public and their sentiment. In conclusion, the discussion regarding the death penalty in India is distinguished by its depth and complexity. The moral and ethical underpinnings of the death penalty are called into question by the pro-abolition arguments, which are based on worries about human rights, the possibility of a mistaken execution, and uncertainties regarding deterrence. Although the death sentence remains lawful in India, the country’s changing legal system and changing social perceptions could lead to a more thoughtful and nuanced discussion of the issue. As the nation debates whether or not to abolish the death penalty, it is critical to keep having meaningful conversations, taking into account the various viewpoints, and working towards a legal system that upholds the values of justice, equity, and respect for human rights.

References

1. https://www.jlsrjournal.in/capital-punishment-should-it-be-abolished-or-retained-by-kshitij-raj/#_ftn25
2. https://www.jstor.org/stable/10.1086/599200?seq=49 Abolishing the Death Penalty Worldwide: The Impact of a “New Dynamic”
3. https://www.humanrightscareers.com/issues/why-death-penalty-is-wrong/
4. https://www.indianbarassociation.org/death-penalty-contemporary-issues/
5. https://www.legalserviceindia.com/legal/article-726-the-doctrine-of-rarest-of-the-rare.html