Author: Shefali Chitkara
Vivekananda Institute of Professional Studies
“Many that live deserve death, and some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.”
- J.R.R. Tolkien
Capital punishment has been the most debated topic in the whole world and still prevalent in many countries. The provisions related to capital punishment in India are mentioned in Indian Penal Code and Criminal Procedure Code. Criminal Procedure Code is the procedural law that explains the procedure to be followed while dealing with death penalty cases and Indian Penal Code mentions the offences which are punishable with the capital punishment. Though it is awarded in rarest of rare cases in India, the issue of death penalty has made a lot of controversies. The article mentions the perspective of both i.e. abolitionists and retentionists as well. It also includes information regarding the historical practice of capital punishment. Further, the author also discusses about the alternatives available to capital punishment and why is there a need to abolish it.
India is one of those countries which retains this punishment in its legal framework. It is not in favor of abolishing it completely. First, we need to understand what exactly is capital punishment? Capital punishment is the execution of a criminal under death sentence imposed by a competent authority. The word ‘Capital’ has been derived from the latin word ‘capitalis’, that means ‘of the head’. It is because in the ancient times death penalty was carried out by beheading a person. The punishment of death sentence is known as capital punishment. The maximum quantum of punishment which can be given by law to a criminal is capital punishment only. There was the case of Bachan Singh v. State of Punjab, in which the Supreme Court held that Capital punishment must be sentenced in most heinous crimes where doctrine of rarest of rare case applies.
In the present scenario, where around 142 countries have abolished the death penalty, it is the need of the hour in India also. God has given us life and he is the only one who can take it back. It has been held that capital punishment must be sentenced in the ‘rarest of rare’ cases but in a country that advocate human rights, how can it award capital punishment as it is the violation of basic human rights. Is ‘rarest of rare’ case defined anywhere? The answer is in negative. It means the ambiguity of this phrase can lead to erroneous judgements as it totally depends on the judges deciding that case. There are a number of reasons that must be taken into consideration for abolishment of capital punishment. Along with it, there are too many reasons given by retentionists which need to be considered by the lawmakers.
Earlier punishments for criminals included boiling to death, crucification, crushing, stoning, flaying, etc. Death penalty was used for variety of reasons that today would seem barbaric. The history of the capital punishment is long, beginning with the code of Hammurabi. In the eighteenth century B.C., it codified the death penalty for 25 different crimes. It was also mentioned in the fourteenth century B.C.’s Hittite Code; seventh Century B.C.’s Draconian Code of Athens. In Britain, when the number of capital crimes raised, around 222 crimes were punishable by death including stealing. Later, it led to reforms in Britain’s death penalty laws. It was then eliminated and 100 out of 222 crimes were punishable by death.
The English were the first to set up centralized government over the whole nation and their law prescribed capital punishment for twelve offences. After getting influenced by them, Indian Penal Code in 1862 came into force with the english tradition of Capital Punishment in a codified form.
CAPITAL PUNISHMENT IN INDIA
In India, capital punishment is awarded in the rarest of rare case for the most heinous and grievous crimes. India opposed the UN resolution calling for the abolition of capital punishment. The power to grant mercy in a case of death penalty is with the president. If a convict has been sentenced to death in a case by the Sessions Court, then it must be confirmed by the High Court. The convict can also make the appeal to the Supreme Court. If the appeal fails, then he may submit a mercy petition to the president of India. Article 72 of the Indian Constitution states the power of the president to grant pardon, reprieves or remissions of punishment or to reduce the sentence of a person who has been convicted of an offence. In case of Jagmohan v. State of UP, the Supreme Court held that death penalty doesn’t violate Articles 14, 19 and 21 of the constitution. The Judge was asked to make a choice between the death penalty and life imprisonment on the basis of facts, circumstances and the nature of crime. The decision was made to award death penalty which was given following the provisions of Article 21.
In the case of Rajendra Prasad v. State of UP , the judge held that capital punishment would be justified only when it is shown that the criminal was dangerous to society. It was also held that death penalty awarded in pursuance to IPC Section 302 does not violate the constitution.
DOCTRINE OF THE “RAREST OF RARE”
The doctrine of “rarest of rare” was laid down in Bachan Singh’s case. Retentionists argue that it has limited the scope of awarding capital punishment and hence it is awarded only in reasonable manner and not arbitrary. On the other hand, abolitionists argue that there is ambiguity involved in this doctrine and the power to decide will always be in the hands of the judges. Further, if the punishment is executed once, it is irrevocable.
DOES IT VIOLATES HUMAN RIGHTS IN INDIA?
Retentionists argue that though capital punishment violates human rights, still it is beneficial to society. According to them, it neither violate the constitutionality of Article 21 of Constitution of India nor it is unfair under the procedural requirements of Indian Constitution. According to Article 5 of UDHR, 1948, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The UN General Assembly has also said that there is a need for high standard of fair trial that is to be followed by every country and procedures to be followed should be just, fair and reasonable. The capital punishment has not been abolished in India and still there is no downfall in the incidents of heinous crimes in India. Unfortunately, it is increasing. This clearly states that capital punishment has no deterrent effect more imprisonment or other heinous punishments. Capital Punishment has been recognized as cruel, degrading and inhuman punishment that infringes upon the basic human rights of the accused as expressed in article 3 of the European Convention on Human Rights.
IF NOT CAPITAL PUNISHMENT, THEN WHAT?
A person who has committed such a heinous crime, who is a murderer or a rapist must be punished. The state has the right to punish such a criminal but no right to kill that criminal. He must be punished in his lifetime so that he could realize that he has done something wrong. Capital punishment would never act as a deterrent as has been proved by many researches and reports. Till now, the crime rate has increased tremendously, this clearly shows that the capital punishment needs to be substituted by a better punishment that will contribute in decreasing the crime rate. Rapists, terrorists, murderers deserve a punishment that inflict same amount of pain that the victim had to endure, that is, instead of hanging them to death, break their bones and let them live so that they must realize that they have done something wrong.
Capital punishment must be abolished as we have no right to take anyone’s life. But we have the right to punish him and make him realize. Realization is important to change this world. Now, a question arises “Will our nation promote such cruel punishments like breaking the bones of the criminal and if yes then why?” For this, a counter question comes in, that is, if it can kill a criminal, then why not break his bones? Atleast he would be able to live. There is a need of such a punishment just for a small period of time so as to bring down the scale of crimes that are rising and to act as a better deterrent.
The main aim of any punishment is justice and to ensure that the crime would decrease, but the killing of the criminals is not decreasing the crime rate. Killing the criminal because he has killed someone is not justice but it is a revenge. For justice, it must be ensured that the criminal has realized his mistake and realization would be possible only when he has to undergo punishment while he is alive.
UN AGAINST CAPITAL PUNISHMENT
Even UN expressed its views against capital punishment. India, though a member of UN has still not abolished capital punishment.
United Nation Economic and Social Council in its resolution no. 15 of 1996 encourages its members to abolish capital punishment. There are various provisions that demand the abolition of capital punishment. Some of these are:
1. Article 5 of the Universal Declaration of Human Rights, 1948 provides that no person shall be subjected to torture, inhuman or degrading treatment or punishment.
2. Article 21 of the Indian Constitution provides Right to life and personal liberty to the citizens of India which also states that every citizen of the country has right to live and not to die.
3. It has also been provided in Article 7 of the International Covenant on Civil and Political Rights, 1966 that no one shall be subjected to torture or cruel behavior, degrading treatment or punishment.
However, these provisions could also be applied to the punishment of breaking up of bones but this step is necessary for a small period of time because without such cruel punishment, the crime rate cannot be reduced. So, the world must take the step of awarding cruel punishment in the beginning so as to control the crime rate.
There is one more reason of abolishing capital punishment. The delay in execution of death penalty as seen in Nirbhaya Case shows the incapability of our legal system. If there is a delay, then there is no justice.
As time changes, laws must also be changed for the protection of the society. The author concludes that justice is not meant to make us feel good but it is meant to punish the crime and make our society safer and the death penalty doesn’t do so. The main object of any state should be to prevent the crime and for reformation of its citizens rather than to put an end to the life of the offender. We must stand together and kill the crime and not the criminal. Hanging is not a solution. Even life imprisonment is a solution but not a great deterrent. So, society as a whole must consider the above stated arguments and then decide which side to choose. Lawmakers should lay down a fixed criteria for the capital punishment and similarly, Judges, should also keep in mind the reformatory approach while sentencing against a convict. But generally, Capital punishment should be given only when it is just, fair and reasonable, and it should be abolished otherwise.
8. AIR 1980 SC 898
9. 1973 AIR 947
10. 1979 AIR 916