ABOLISHING CAPITAL PUNISHMENT: A CALL FOR CHANGE BY: VAANI GARG
ABOLISHING
CAPITAL PUNISHMENT: A CALL FOR CHANGE
AUTHORED BY: VAANI GARG
Institution: Army Institute of Law, Mohali
ABSTRACT
This research paper is based upon the
hypothesis that the application of the death penalty raises more ethical and
legal issues than its ostensible benefits as a means of enforcing the law. It
instead has a disproportionately negative impact on marginalised communities
and fails to appreciably reduce the rate of violent crime.
The paper tracks the historical and
international significance of capital punishment to understand its continuance
in the modern day. It further analyses India’s stand on death penalty weaving
through the legal and judicial developments in the country. It also takes into
consideration the ethical dilemmas surrounding death penalty and whether it
truly serves the purpose of ‘deterrence’ it was intended for.
The method for research in this paper
relies on both theoretical as well as empirical evidence. Secondary sources
have been further relied upon to further prove the hypothesis so alleged.
INTRODUCTION
Death Penalty remains one of the
major dilemmas of the 21st century. It draws attention to the
popular phrase- ‘to kill or be killed?’. Capital punishment still remains as a
form of punishment not only imposed in India, but across the legal systems of many
countries. Various studies have been conducted time and again elucidating upon
various aspects of capital punishment, but there still lacks an eye which thoroughly
takes into consideration the entirety of the subject. There hasn’t been a more
necessary time where the need to critically evaluate all aspects of death
penalty has arisen.
Proponents of capital punishment
argue that it serves as a deterrent to severe crimes, provides justice for
victims, and upholds societal order. But the opponents raise concerns about its
morality, the risk of wrongful convictions, and the potential for
disproportionate impacts on marginalized communities. The discourse around
capital punishment is further complicated by differing legal standards,
cultural perspectives, and advancements in forensic science.
This research paper through a
comprehensive analysis attempt to discover whether capital punishment still
serves the purpose it is intended for in current times.
HISTORICAL
EVOLUTION OF CAPITAL PUNISHMENT
There is almost certainly no nation
in the world that hasn’t used death penalty as a form of punishment at one
point in time. Instances of capital punishment have been found since the
beginning of history. Modern age has only mitigated its usage. Its focus has
now shifted from petty offences to the most gruesome of crimes.
Ancient Civilisations
The first laws regarding capital
punishment date back to as far as 18th century BCE in Babylon law.
This was the code of Hammurabi. It normalised punishment by death in cases of adultery,
rape, disobedience of son, incest, kidnapping, theft, wrong at work[1] etc. The Egyptians awarded the death
penalty to those who broke the universal law. This includes betrayal/revolt/
conspiracy against the state, violating religious rules, swearing, murder, and
giving false information. In Rome, the death
penalty was executed in different ways, such as drowning, beheading, throwing
torpedo stones, idolatry, burning, and hanging, depending on the nature of the
crime[2].The death penalty was deemed
necessary by the Romans. In ancient China, death penalty developed
w.r.t. three rules of Emperor Kao Ti of the Han dynasty in 201 B.C. It was awarded
for more than 220 crimes in T’ang Code of 653[3]. By 18th Century, the
Ch’ing Code of 1740 provided death strangulation, decapacitation, and slicing
for more than 800 crimes.
In United States, capital punishment
was introduced by the European settlers. The first recorded incident is the
execution of Captain George Kendall in the
Jamestown colony of Virginia in 1608[4]. Each colony had
its own rules regarding death penalty.
Religious Perspectives
In ancient India,
capital punishment originated from theology. The concept of danda[5] (punishment) arose
during the Vedic period (1500- 600 BCE) which emphasised on the duty of the
King to inflict punishment on the guilty. Danda was associated with
righteousness. In Smritis of Manu and Yajnavalkaya death penalty was provided
as an obligation of the King to punish the culprits[6]. Manu speaks
of four forms of punishments, one of which—Badhadanda[7] (physical
punishment including death), included (1) tadanam (beating), (2) severance of
limbs, (3) branding (imprinting marks on visible parts of the offender’s body,
indicating that he or she is convicted), (4) capital punishment, and (5)
pouring heated oil into the offender’s earhole.
Followers of Judaism and
Christianity have based their justification
for capital punishment in the biblical passage “Whosoever
sheddeth man’s blood, by man shall his blood be shed.”
In Islamic law, as expressed in
the Qur??n, capital punishment
is permitted, though only allowed in limited
circumstances[8]. It prescribes
death penalty for several Hudud (fixed) crimes—including
robbery, adultery, and apostasy of Islam. Murder is treated
as a civil crime and is covered
by the law of Qi??s (retaliation), whereby the victim’s
relatives decide whether the perpetrator is to be punished with death or be
made to pay compensation called diyah (wergild). Death penalty is discretionary for Ta
‘zir crimes which are the ‘claims of the state/society.[9]’
And We ordained for them herein a
life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a
tooth for a tooth, and for wounds is legal retribution. But whoever gives [up
his right as] charity, it is an expiation for him. And whoever does not judge
by what Allah has revealed – then it is those who are the wrongdoers. (Quran 5:45)
If you punish, then punish with an
equivalent of that which you were harmed. But if you are patient - it is better
for the patient. (Quran 16:126)
MODERN
DEVELOPMENTS AND INTERNATIONAL LAW
As of 2021, 108 countries have abolished the death penalty in law for all crimes. 144 countries have abolished the death penalty while 55 countries still retain it[10].The
Death penalty for all crimes except treason was abolished by Michigan in 1846. Subsequently,
Rhode Island and Wisconsin abolished the death penalty. By the end of 19th
century, countries such as Venezuela, Portugal, Netherlands, Costa Rica, Brazil
and Ecuador followed suit. Ghana became the latest country to abolish death
penalty in 2023. Capital punishment hasn’t bene outrightly banned under
international law. However, its use has been severely discouraged and countries
are urged to abolish it in their respective domestic laws.
Ø On 10 December 1948, the United Nations General Assembly adopted the
‘Universal Declaration of Human Rights’ as a ‘common standard of achievement
for all peoples and nations’:
Article 3: “Everyone has the right to
life, liberty, and the security of person.”
Article 5: “No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”
Ø ICCPR, 1967- Article 6 limits death penalty for the most serious crimes
in accordance with the law. Further it states, that for the abolition of
capital punishment, nothing in the aforesaid Article shall be invoked to delay
or prevent the abolition.
Ø In 1984 the UN Economic and Social Council (ECOSOC) adopted
safeguards guaranteeing protection of the rights of those facing the death
penalty for countries which have not abolished the death penalty. It lists 9
such conditions where death penalty can be awarded.
Ø Adopted on 20 April 2005, in resolution 2005/59, the UN Commission
on Human Rights stated that "the abolition of the death penalty
contributes to the enhancement of human dignity and to the progressive
development of human rights" and that "the abolition of the
death penalty is essential for the protection of [the right to life]".
Ø Under the Statute of the International Criminal Court adopted in
1998, the death penalty is excluded from the list of applicable penalties under
Article 77.
DEATH
PENALTY IN INDIA
Criminal justice system in India is the
brain-child of the British Raj. Indian Penal Code, 1860 (IPC), which listed a
number of capital crimes remains in force even after independence[11].
It has been also included in several laws related to the armed forces, local
laws and other legislations. The first hanging in independent India was of
Nathuram Godse and Narayan Apte for assassination of Mahatma Gandhi in 1949.
Ironically, Mahatma Gandhi pioneered for the abolishment of capital punishment.
He believed ‘hate the sin, not the sinner[12].’
Attempts to abolish death penalty in India
A
Bill abolishing the death penalty for IPC offences in 1931 was initiated by
Gaya Prasad Singh. However, it was opposed. In March 1931, after Bhagat Singh,
Sukhdev and Rajguru were executed by the British government, the Congress introduced
a resolution in its Karachi session. This resolution included a demand for the
abolition of the death penalty. India’s constitutional assembly debates between
1947-49 also raise questions on validity of death penalty. Pandit Thakur Das Bhargava,
Frank Antony, Shibbanlal Saksena, and Dr. Ambedkar, amongst others severely
opposed death penalty. The question of its abolishment was left to the wishes
of the future parliaments of the country. Various bills were moved between
1952-1963 to abolish death penalty but resulted in a deadlock due to
non-consensus. Finally, the task of examining the IPC and CrPC w.r.t. death
penalty was entrusted to Law Commissions.
Law Commission Reports
The 35th Law Commission Report on
capital punishment in 1967 remarked- “Having regard, however, to the
conditions in India, to the variety of the social upbringing of its
inhabitants, to the disparity in the level of morality and education in the
country, to the vastness of its area, to the diversity of its population and to
the paramount need for maintaining law and order in the country at the present
juncture, India cannot risk the experiment of abolition of capital punishment[13].”
In 2003, the187th Report of Law commission
on the “Mode of Execution of Death and Incidental Matters” was released. It
recommended-
i)
inclusion of lethal injection as a method of
execution, in addition to hanging.
ii)
Provision of a statutory right
of appeal to the Supreme Court where a High Court confirms a death sentence, or
enhances the sentence to capital punishment.
iii)
all death sentence cases be
heard by a 5 judge Supreme Court bench.[14]
In 2015, the law commission released its 262nd
Report on death penalty. It remarked that “time has come for India to
move towards abolition of the death penalty, for all crimes other than
terrorism related offences and waging war.”
The Indian Parliament has sought to
replace the IPC with Bharatiya Nyaya Sanhita, 2023 (BNS). Hopes of abolishment
of death penalty were crashed when BNS instead has increased the number of
crimes which can attract the death penalty from 11 to 15. It has been added for
four new crimes- mob lynching, organised crime, terrorism and rape of a minor.
Constitutional Validity of Death Penalty in India
Death sentence in India was first
challenged in the case of Jagmohan Singh v. State of U.P.[15], where it was alleged to be
violative of article 14,19 and 21 of the constitution. It was challenged that death
sentence puts an end to all rights guaranteed under clauses (a) to (g)
of Article 19(1) and is unreasonable and not in the interest of the general
public. The wide scale discretion vested in the judges to impose death
punishment is uncontrolled and unguided. It is also subject to Article 14 of
the Constitution as two persons who commit murder are liable to be treated
differently when conviction is based on similar facts- one is deprived of his
life and the other is awarded a sentence of life imprisonment. Lastly it was
contended that the provisions of the law do not provide a procedure for making
the choice between the capital penalty and imprisonment for life. In the
absence of any procedure established by law sentence of death is unconstitutional
under Article 21. But the court held that-
“Article
19 of the Constitution does not directly deal with the freedom to live. Unless
it was shown that the sentence of death for murder passed the test of
reasonableness and general public interest, it would not be a valid law.”
“Death penalty was not violative of Article 14
of the Constitution as the law gives a judge discretion in the matter of
sentence after balancing all the aggravating and mitigating circumstances of
the crime. It will be impossible to say that there would be at all any
discrimination, since facts and circumstances of one case can hardly be the
same as the facts and circumstances of another.”
“It also
does not violate Article 21 as CrPC contains a detailed procedure on finding of
guilt of a person.”
In Rajendra
Prasad v. State of U.P.,[16] court
held that “reasonableness’ and fairness are the touchstone of the
constitutionality of capital penalty. Death penalty is permissible only where
reformation within a reasonable range, is impossible. It is permissible when
the murderer offers such a traumatic threat to the survival of social order, security of the state and
society, and the interests of the general public were threatened, then his
enjoyment of fundamental rights may be rightly annihilated.”
Doctrine of Rarest of the Rarest Case
The decision in Jagmohan Singh was
reaffirmed in Bachan Singh v. State of Punjab[17].
The court upheld the constitutional validity of Section 302 IPC and 354(3)
CrPC. It emphasised on the need to weigh the aggravating and mitigating factors
to be considered while awarding death penalty. It further said-
“Real and abiding concern
for the dignity of human life postulates resistance to taking a life through
law's instrumentality. That ought not to be done save in the rarest of rare
cases when the alternative option is unquestionably foreclosed.”
P.N.
Bhagwati gave a dissenting opinion. She held that death penalty is irrevocable
and beyond recall. Moreover, ‘special reasons may differ judge to judge making
death penalty extremely arbitrary.’ The uncontrolled discretion and lack of any
standards or guidelines while awarding death penalty make it violative of
Article 14 and 21 of the constitution.
Nevertheless,
The
Supreme Court’s decision did not define or restrict the use of the phrase
‘rarest of rare.’ This was enumerated upon in Machhi Singh v. State of
Punjab[18]-
“‘Rarest
of rare cases’ were those where the collective conscience of society is so
shocked that it will expect the holders of the judicial power centre to inflict
death penalty.
The court
need to ask 2 prime questions before awarding death penalty-
(a)
Is there something uncommon about the crime
which renders sentence of imprisonment for life inadequate and calls for a
death sentence?
(b)
Are the circumstances of the crime such that
there is no alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in favour of the
offender?”
In Mithu v. State of Punjab[19], the court struck down Section 303
of the IPC which mandatorily awarded death sentence for committing murder. It
held that this amounted to “deprivation of rights and safeguards which is
bound to result in injustice is harsh, arbitrary and unjust.”
In Jashubha Bharatsinh Gohil v.
State of Gujarat[20], it has been held that in the matter
of death sentence, the Courts are required to answer new challenges and mould
the system to meet these challenges. The object should be to protect the
society and to deter the criminal in achieving the avowed object of law by
imposing appropriate sentence.
In the case of Swamy Shraddhananda
v. State of Karnataka[21] , the Supreme court commented that
the confirmation or commutation of death sentence by and large depends upon the
predilection of the judge. The Supreme court has repeatedly acknowledged
inconsistency in applying “rarest of the rare” doctrine.[22] The Court has also raised concern
over “judge-centric” application of “principled sentencing”.[23]
In Mukesh v. State (NCT of Delhi)[24] , the accused persons committed gang
rape in a moving bus, inserting iron rods in the private parts of one victim,
subsequently throwing out both the victims out of the bus. This act shocked the
collective conscience of the society. The Court held that the case was a “the
rarest of rare case” where the question of any other punishment was
“unquestionably foreclosed”. It hence affirmed the death sentence awarded to
the accused persons. They were hanged in 2020, which is also the most recent
executions made in India. Around 755 death penalty convicts have been hanged in
Independent India till now[25].
ETHICAL
CONSIDERATIONS V. DEATH PENALTY
Views of Philosophers on Death penalty
Plato was aversive to retributive
punishment. He believed that capital punishment was meant only the incurable
and the bad men themselves[26].Immanuel
Kant was a staunch believer of Retributive justice and Criminal Punishment. He
appealed for maximum support for “Law of Retribution”. He believed that if a
person has committed a murder, then he deserved to die.
On the other hand, Cesare Beccaria supported
abolitionism and called for, “Sympathetic sentimentality and affection of
Humanitarianism”. He challenged the authority of the state to carry out the
death penalty and the utility of death penalty[27].
Jeremy Bentham’s theory of utility holds that capital punishment is justified if it will
promote the ‘happiness of the greatest good for the greatest number of people’
in the society[28].Emile
Durkheim supported capital punishment to have a salutary effect on society by
reaffirming the collective consciousness[29].
Barring a few exceptions, Durkheim believed that criminal punishment was
awarded on behalf of society.
Psychological Perspective
The death row
phenomenon is the emotional distress felt by prisoners on death
row. This
phenomenon has been accepted in Indian jurisprudence. The Supreme
Court in Shatrughan Chauhan v. Union of India[30] held that
sentence of death creates adverse physical conditions and psychological
stresses on the convict. Prisoners are completely barred from the world
outside, they spend 24 hours of the day locked between closed doors, often isolated,
in a state of constant uncertainty of when they’ll be hanged. Many often also
suffer from suicidal thoughts. Living in the shadow awaiting execution, their
mental health collapses as they complex legal process takes years to resolve.
Not only
the convicts, but several reports have also described that families of prisoners sentenced to
death face both cognitive, emotional and financial difficulties. The emotional
trauma they suffer is intense and prolonged[31].
There is another
hidden impact of awarding death penalty- the dilemma faced by the executioners.
For example, Nata Mullick, a veteran executioner of the Central Jail in
Kolkata, describes his work as a ‘public duty’. He also
reveals that he has sleeping problems and recurring flashbacks to executions,
and that he turns to religion to deal with the ‘the horror of being a legalised
killer.’ Others have exhibited other symptoms of secondary trauma such as physical ailments and detachment
from neighbours and family[32].
Executioners report to be suffering from depression, personality changes,
nightmares, obsessive- compulsive behaviours, and PTSD[33].
CAPITAL
PUNISHMENT- IS IT HERE TO STAY?
Irreversible mistakes
There are innumerable instances where the Supreme Court has
altered the death sentence awarded by the lower courts- In 2023, the apex court
acquitted almost 55% of the death row prisoners in the cases it heard[34]. The Supreme Court recently acquitted two death
row convicts for which the trial court and High Court awarded capital
punishment[35].
In an appeal to the President of India — Pranab Mukherjee —
thirteen former judges mentioned that two prisoners who had been wrongly
sentenced to death — Ravji Rao and Surja Ram — had been executed on May 4,
1996, and April 7, 1997, respectively, due to flawed judgments[36].
The lives of two innocent persons were put to an end because humans are
fallible.
The irrevocable nature of the death penalty means that any error, whether due to flawed evidence, judicial bias, or prosecutorial misconduct, results in the permanent deprivation of life, making the stakes exceptionally high and the cost of any mistake immeasurable.
The irrevocable nature of the death penalty means that any error, whether due to flawed evidence, judicial bias, or prosecutorial misconduct, results in the permanent deprivation of life, making the stakes exceptionally high and the cost of any mistake immeasurable.
Is death penalty a deterrent?
Three main theories on which the
penology system is based are: retribution, deterrence and rehabilitation. The
chief argument of retentionists is the deterrence outcome formed by the death
penalty. According to NCRB data, the
crime rate has increased by 34.1% during the decade 2003-2013 from 160.7 in
the year 2003 to 215.5 in the year 2013. It increased further in 2023 where the
crime rate stood at 445.9 per 100,000 individuals. According
to figures released by the National Crime Records Bureau, at the end of
2023, there were 561 convicts serving death sentences, which is the biggest
number of those on death row in a single calendar year in over two decades
(compared to 144 in 2003).[37]
The statistics clearly
ascertain that the death penalty has no such deterrence and the effectiveness
of deterrence of the tremendous punishment remnants unproven.
Organisations such as Amnesty
International hold that there is no evidence which shows that death penalty has
a unique deterrence on crime. Since most crimes are done on the spur of the
moment, there is little chance that possible penalties will deter criminal
activity because they don't think they will be discovered and held accountable.
Other research has compared patterns before and after the change to examine how
abolition affected the number of homicides. If the death penalty did deter,
murder rates would be expected to rise once the deterrent was removed. That has
not happened[38]. The only support for death penalty
as a deterrent lies in public belief. This myth has been embedded into the
minds of the people in such a way that it has become a social norm.
Economic implications
As much as death penalty is a
socio-legal and moral issue, from the perspective of the government is a
program with related costs and benefits.
Many individuals believe that because
the state no longer has to pay for an executed person's incarceration, medical
care, or other associated costs, the state saves money by implementing the
death penalty. But such presumption has been shown to be incorrect in the
context of the capital sentence as it is used today. The cost of a system that
substitutes life in prison without the possibility of parole for the death
penalty is significantly higher. The need for more attorneys and experts on
both sides of the case, the prolonged trials and appeals that occur when
someone's life is at stake, and the comparatively small percentage of
executions are the main causes of the death penalty's high cost. The death
sentence is not applied in the majority of situations where it is requested.
Furthermore, the likelihood of a conviction or death sentence being reversed in
court is high when it comes to capital punishment. Majority of prisoners who
get death sentences actually serve out their whole jail sentence—albeit at a
greatly inflated expense.
CONCLUSION
The paper covers many aspects of
death penalty. There is an ever going, century continuing debate of whether
capital punishment is here to stay. As a society, we have to think hard on
whether it is really the ultimate form of punishment. The world is shaping
itself to be a capitalistic and money churning machine. Though the question of
life shouldn’t be put to an economic vote, capital punishment stands to be on
the costlier end. When we are moving an inch closer to being more humanitarian
every day, there shouldn’t be any exceptions. Mutually exclusive positions
cannot be maintained simultaneously.
Death penalty might put to rest the
most barbaric and gruesome of individuals, but it carries a significant risk of
executing innocent individuals. Our legal system has too often made mistakes.
Wrongful convictions continue to occur, lives unjustly taken. In the absence of
any evidence to support that it has a deterrent effect, death as a punishment
is only awarded to satisfy the quench for revenge.
If public opinion today stands for
death punishment, tomorrow it can be persuaded to oppose it. Historically,
legally, ethically, morally and psychologically, capital punishment is deeply
flawed. Alternative practises and forms of punishment must be pursued- life
imprisonment and sentence without parole. No matter how severe one tries to
draw the distinction between murder and death penalty, the latter is still
murder, only state sanctioned. The sanctity of human life must be preserved,
the path of compassion over vengeance must be opted for.
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