CAPITAL PUNISHMENT: IS IT ETHICAL OR A VIOLATION OF HUMAN RIGHTS by Ipsita Aparajita Padhi

Posted on: June 24, 2021 Posted by: admin Comments: 0

Author: Ipsita Aparajita Padhi, Student at KIIT University, Bhubaneswar, Odisha, India

ABSTRACT

Capital Punishment or Death penalty has always been one of the biggest controversial topics of the Indian judiciary. Since ancient times this form of justice is in action and still is used in many major countries including India. The aim of any given punishment is to reduce and control the crime rate and to impose some penalty on the offender. The Death penalty is given in the name of justice, in simple terms means the offender of a crime is given the punishment of death for the crime committed by them. Even though in India death penalty is now used in rarest cases, the controversy over if it is ethical and within constitutional morale is a long standing debate. As per Indian constitution, death penalty is a violation of right to life and dignity which is provided in Art. 21, but it is still constitutionally valid. This paper provides an overview of the study of capital punishment in India. It also gives insight to the history and various reports of Law commission on death penalty as a means of justice. The paper covers the methods of execution of capital punishment and also some cases to effectively understand all the aspects regarding it. It is observed that the judgments which are made regarding heinous crimes are done while keeping the general public in mind and settling on the fact that the public deems capital punishment in rarest of the rare cases are just and fair. But the study also dwells on the fact that it is against the principles of human rights, so the implementation of death penalty should be reviewed and alternatives should be decided. Rigorous imprisonment, Life educations, counseling can be more effective in some cases rather than capital punishment.

INTRODUCTION

India is a developing country with an alarming increase in crime rates by each passing day. Even though lots of legislations are in place to prevent and control crimes, the crime rates still remain high. Capital punishment, which is also known as death penalty, is the highest punishment provided to offenders for their crimes. Capital punishment is a legal exercise where the criminal is given the punishment of death in the name of justice and which usually are executed in case of a heinous crime like terrorist, other offenses against state or country, murder, rape etc. All the punishments which are imposed by the judiciary are based on the beliefs that the person who has done unlawful things should suffer for it and the punishments could be means to fear the criminals and other people from committing such crimes in future. Therefore it could bring the crime rate down and stops people from committing such heinous crimes against mankind. But Capital punishment is considered to be against the Human Rights provisions which are protected under Article 21 of the Indian constitution which states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

The UN have discussed widely about abolition of Death Penalty and considered capital punishment as violation of human rights. But a lot of active members of UN, including India, still practices capital punishment in some cases. According to UN, the Reformative Theory of Punishment has more importance than Deterrent Theory.

J.V.R. Krishna Iyer stated in a case that – “The special reason must relate, not to the crime but to the criminal. Despite the crime, sometimes a criminal may not deserve the Death Penalty”. There are also clemency powers to pardon or suspend the capital punishment which is given to president and governor by the Constitution of India country and state respectively. Capital Punishment is a last resort which the court awards only when it concluded that life imprisonment is not enough for the criminal, based on the nature, severity and situation of the case.[1]

CAPITAL PUNISHMENT IN ANCIENT TIMES

In India, capital punishment has always been used as a means to administer justice by the rules through the centuries. It has been the subject of controversy not only in India but also in different parts of the world. As per the world, the death penalty was first time codified in the criminal laws by the Babylon King Hammurabi in the 18th century. There was also a Hittite code in the 14th Century BC which signified death penalty but was not widely followed. But before being in the law capital punishment have been used over various centuries. In Mauryan Era, the Retributive theory of punishment was widely followed which meant and eye for an eye and usually the execution was by cutting the head or dragging the person until death. In 7th century B.C, during Draconian Code of Athens death penalty was implemented for all crimes. Otherwise the death penalty was only for most serious crimes. During 10th century Britain, hanging was the normal process of executing a death sentence. In United States, during colonial period, the death penalty was first used by the officers of Virginia government for the alleged conspiracy to betray the then ruling British. In history there are also records of death sentence being used in minor offence cases all over the world. Some of the major offences where death penalty was awarded in ancient times are killing, kidnapping, sodomy, buggery, perjury etc.

CASES DEALING WITH CAPITAL PUNISHMENT

RAREST OF RARE CASES:

The Capital Punishment in India is deemed legally valid in India and is given in Rarest of rare cases or on special cases. The controversy over capital punishment is mainly regarding the accurate definition of rarest of rare cases which is not provided by the legislation or the Supreme Court.

MACHHI SINGH v. STATE OF PUNJAB[2] – This is the first case where the phrase “Rarest of the rare cases” first appeared in the decision given by SC. The meaning of this phrase is that during a criminal trial the nature and gravity of the crime is analyzed and the appropriate punishment is given. If capital punishment is deemed reasonable in the case then the SC awards the punishment to the offenders.

Section 302 of IPC states death penalty or life imprisonment is a penalty for offence of murder. But it is impossible to hold the capital punishment for murder as it is unreasonable and contradictory to public interest. The order of conviction of an accused is the procedure of penal law and the verdict is solely related to the order of conviction. This is the reason Section 302 of IPC does not come under the test of Article 19(1) of Indian Constitution.

In Machhi Singh v State of Punjab the court laid down principles for judging the case facts when the crime is listed under “rarest of rare cases formula” and issued guidelines to be adopted in better identification of the rarest of rare cases.

SABIANA v. STATE OF KARNATAKA[3] – In this case the accused was awarded life imprisonment for the crime committed. But during his parole, he killed his wife and daughter. The Supreme Court gave another verdict and convicted him to capital punishment and stated that death penalty is mandatory for the criminals who are already serving life imprisonment.

The Supreme Court struck down the Section 303 of IPC which stated provisions for mandatory death penalty for offenders serving life sentences. This was done because in mandatory death sentences it is unnecessary to hear the offender’s side on the case and because awarding death penalty should provide reasons behind the decision.

BACCHAN SINGH V. STATE OF PUNJAB[4]– The Indian Judiciary concludes the judgment changing the view regarding capital punishment and the cases in which it should be awarded. This approach of SC was to reduce use of capital punishments for all criminals and restrict it to certain crimes in penal code.

Courts had to mention proper reasons for capital punishments till 1973 for awarding the alternating punishment instead of death penalty in capital offences.

JAGMOHAN SINGH V. STATE OF UP[5] – Supreme Court while giving judgment in this case questioned the constitutional validity of Capital Punishment for the first time. The SC made it clear that the execution of death penalty will be based entirely on the type of the crime and case facts.

The new code of Criminal Procedure, subsequently in 1973, provided that the court is obligated to mention the reason for awarding capital punishment instead of life imprisonment.

LAW COMMISION OF INDIA REPORTS ON DEATH PENALTY

The 35th Report of the Law Commission

The Law Commission, in 1967, issued its 35th Report on “Capital Punishment” and recommended the retention of death penalty. The Commission also commented that the discretionary power of the courts is necessary in order to impose the death penalty or the life imprisonment which befits the situation better. The Commission believes that abolishing death penalty in India may put the lives of citizens at risk and in danger. The reports also highlights the fact that in court, people who do not have sufficient financial capacity or other reasons cannot sue which makes the law unfair to some people and their focus concentrates on legal aid rather than criminal law. The commission deems that the right to appeal to Supreme court in cases where High Court have imposed a death penalty as unnecessary. The report also recommended retaining section 303 of the IPC, which provides mandatory death sentence. However in 1987 in Mithu vs State of Punjab case the Supreme Court struck down this section.

The 187th Report of the Law Commission

In this report the Commission gave certain modes of execution of death penalty and Incidental Matters. This report included –

  1. A method of execution of capital punishment
  2. The process of elimination of judicial opinion differences among the judges while passing the death penalty.
  3. The defendant should have a right to appeal.

The Commission recommended the amendment of Section 354(5) of the CrPC for allowing lethal injection as a method of capital punishment.

The 262nd report of the law commission

In August 2015, in its 262nd Report the Commission have recommended abolishing the death sentence for all offences except the crimes involving terrorism and war.

ARGUMENTS

Arguments against death penalty:

  1. Capital punishment stands in violation of human rights no matter whether the crime is done by a criminal or by group of people.
  2. As per Indian guidelines, death sentence should be given in case of rarest of rare cases but there is no proper definition or description anywhere in Indian law. It completely depends on court to come to such decisions.
  3. The court verdicts may not be always reliable. Sometimes people who are found not guilty before are given death penalty later by judgments.

Arguments in favor of Death Penalty:

  1. To maintain peace and order in the society, capital punishments are required for capital offences so that people will take it seriously and will not commit crimes fearing the consequences.
  2. According to the Supreme Court, death penalty is constitutionally valid
  3. Providing all facilities compatible with human rights to the life imprisoned criminals for their whole life will have high maintenance cost and ignoring their safety and security may lead to escape of prisoners in some cases.
CAPITAL PUNISHMENT EXECUTION IN INDIA

There are usually two methods by which Capital punishment is executed in India.

Hanging –

It is the common method of execution of Capital Punishment in India. All Cases are implemented by this method.

In Independent India, Nathuram Godse was the first person to be given Capital Punishment in India for the shooting of Mahatma Gandhi.

The Supreme Court of India then gave the suggestion of Capital Punishment being used only in case of rarest of rare cases.[6]

Shooting –

The army Act and Air Force Act of India also provide methods of implementation of capital punishment in India. Section 34 of Air Force Act, 1950, allows the court martial to thrust the death penalty for the unlawful act which is mentioned in Section 34(a) to 34(o) of The Air Force Act, 1950.

The government in India though uses hanging method to execute capital punishment.

CRIMINOLOGICAL APPROACH OF CAPITAL PUNISHMENT
  1. REFORMATIVE THEORY – This theory focuses in reforming the main convict through individual treatment. The main aim is to educate the offender which supports criminology. Criminology defines all crimes as a diseased phenomenon which is a mild form of insanity. Reformative theory is supported by criminal anthropology, criminal sociology and psychoanalysis. This aims to correct the criminal minds into better so that they can lead a life like normal citizen. This theory criticizes corporal punishments.
    1. Criminal Anthropology – It states that it is necessary to treat a criminal as all crimes are a disease. Some crimes are done by normal persons under willful violation of morale law. This could be due to mental defect rather than physical.
    2. Criminal Sociology – It aims to improve social and economic conditions to remove the inequalitites. Crimes can be changed by justice and equality and not by punishment.
    3. Psychoanalysis – It states instead of punishment, education and psychoanalytic treatment is needed for preventing crime.

Among the theories regarding punishment, Reformative theory is superior. But some crimes are more helpful to preventive theory.

  1. PREVENTIVE THEORY – The main aim of this theory is to keep away the offender from society and give punishment to set example for others and prevent others from committing criminal activities. This theory was supported by many law reformers as they seemed that punishments humanize Penal law and have more effect on the criminals. The main aim is to award punishment like life imprisonment or death penalty. The objective of this theory is to take measures so that the accused do not repeat the crimes after the punishment. According to this theory, Capital punishment due to its detriment effect is the most severe form of punishment. In India, preventive theory is followed as of now.
SUGGESTIONS
  1. There should be a reliable and definitive definition of the term “Rarest of the rare cases” in which case Capital Punishment should be executed.
  2. Capital punishment should be replaced by reformative theory in India.
  3. The offenders should be given education and counseling in prison so that they can better their life and can be normal human beings in legal ways.
  4. If Capital Punishment should still persist as a means of justice then there should be more methods of executing Capital Punishment like lethal injection etc.
  5. The criminals of heinous crimes like gang rape or terrorism should not be given death sentence by hanging; instead they should be given a lifetime of rigorous punishment making them remember about the crime they have committed. This could be more effective in scaring the other criminals and preventing the crime to happen again.
  6. For terrorist and rape offenders there should not be any pardoning.[7]
CONCLUSION

Capital punishment has always been deemed as a controversial matter regarding social and moral aspects. Death penalty is giving the punishment of death in the name of justice to a person who has been accused of committing a heinous crime. But it is not just considered as a mere punishment as according to Human Rights it is deemed as immoral and highlights the lack of respect for the human life. Supporting or being against the idea of death penalty does not mean that a person is supporting the offender in any way. But death penalty is often seemed as a blunt end to a life because it reduces the scope of improvement for an individual which may have changed their life. There is no guarantee that all the persons who are accused of heinous crimes can change and better their life with education but it is a possibility which a lot of democracies have not explored in the past. Now-a-days the world democracies are favoring the reformative theory of punishment over the deterrent theory of punishment. The criminals should be punished for the society to work smoothly but in a civilized society the main focus should be in eliminating the crimes rather than eliminating criminals. There should be education and counseling available for them for the betterment of their life and for the country.

Indian constitution states death punishment as valid but at the same time also provides the provision for right to life and dignity. This is also another main reason for the long standing debate regarding capital punishment being ethical. UN is now supporting the abolition of death penalty but India being an active member, still has capital punishment as valid. The reason behind the existence of capital punishment in India even in present times could be related to the conditions of crimes which have become brutal day by day like Delhi gang rape case, Unnao rape case, Hyderabad gang rape case etc. The justice demanded by society in these types of crimes should be equal to the harshness of the crime committed. That is why Capital punishment is still being exercised in India. But it is also a fact that guarantying the death penalty for these heinous crimes still not means that the crime is eradicated. In fact the crime rates are increasing every year in India which means rather than being hung up on punishments only, the country should also adopt methods of educating the common folks for the betterment of life and society. While implementing any law the priority should be given to eliminating the crime instead of the criminal. For the heinous crimes, rigorous punishments should be given. But instead of death penalty it would be more effective if they will remember the crime they have committed every time while facing life imprisonment and rigorous punishment in prison.

REFERENCES

[1] Manmeet Singh, Is Capital Punishment Ethical?, LEGAL SERVICE INDIA,  (Nov. 16, 2020, 10:00AM), http://www.legalservicesindia.com/article/1882/Is-Capital-Punishment-Ethical.html

[2] Machhi Singh v State of Punjab, 1983 AIR 957, 1983 SCR (3) 413

[3] Sabiana v State of Karnataka, 2005

[4] Bacchan Singh v State of Punjab, AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

[5] Jagmohan Singh v State of U.P.,  1973 AIR 947, 1973 SCR (2) 541

[6] M. Swathi K.Roja, A Critical Study on Capital Punishment in India, International Journal of Pure and Applied Mathematics,Volume 120 No. 5 2018

 [7] Manmeet Singh, Is Capital Punishment Ethical?, LEGAL SERVICE INDIA,  (Nov. 16, 2020, 12:00AM), http://www.legalservicesindia.com/article/1882/Is-Capital-Punishment-Ethical.html

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