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LAW OF CRIMES “Capital Punishment Vis A Vis Right To Life” (by- Prerna)
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LAW OF
CRIMES
“Capital
Punishment Vis A Vis Right To Life”
Authored by- Prerna
Chapter 1:
Introduction
One of the most hotly disputed topics
of our time is the individual right to life and its many implications in
diverse political settings. This is a crucial subject today for a variety of
reasons, including the widespread demand for abortion of capital punishment.
The term "Capital Punishment" one of the harshest types of
punishment. This type of punishment
that is most of the time met out for the most egregious, terrible, and
abhorrent crimes against mankind. Though the definition and scope of these types
of crimes is different for
different country countries,
state, and age, but it is always takes away the most basis right of life from
people. The term "capital sentence" is commonly used in law,
criminology, and penology to refer to a death sentence. There isn't a single
country on the planet where the death penalty has never been used.
The history of human civilisation
indicates that “capital punishment” has never been abolished as a form of
punishment. There are two basic reasons for punishing wrongdoers: to deter
others from doing wrong, and to deter others from doing wrong. The death
sentence is based on the same logic as other forms of punishment. It is even
more subject to discussion regarding its fairness, appropriateness, and
effectiveness than other punishments due to its draconian and irreversible
nature.
The morality of this punishment as
well as its impact on criminal behaviour have long been a source of heated
discussion. During the twentieth century, there was a campaign to abolish the
death penalty, which resulted in several states joining the cause and
abolishing the death sentence. The death penalty, on the other hand, is known
to exist in India. Both proponents and opponents of capital punishment can make
compelling and persuasive arguments. As a result, no one side has been able to
deny the existence of the other. In this context, the world's countries can be
classified into four categories.
According to the proponents of death
sentence, the murderers cannot exercise their right to life or their right to
life ceases to exist as they have destroyed the right of life of someone else.
Moreover, they believe that capital punishment is a legal form of retribution
that expresses and reinforces not just the anger of the victim's family, but also
the moral resentment of all law-abiding citizens.
On the other hand, people advocating
the abolition of death penalty argue that capital punishment violates the right
to life of a person. They say that death penalty is not an appropriate response
to the wrongful death of a person. The emotional need for vengeance is
insufficient justification for instituting a capital punishment system, with
all of its flaws and risks. Our laws and criminal justice system should lead us
to higher values that reflect complete respect for all human life, including
that of a murderer. They say that. death sentence has not been shown to be a
deterrent to future murderers.
Research
Objective:
The main objective of this research
paper is to see that how the viewpoint of Indian government and judiciary
towards capital punishment and right to life have changed over period of time.
This research paper also aims to compare the attitude of various countries and
various international organisations towards right to life and capital punishment.
Research
Questions:
How the attitude of judiciary and
government has changed over time period?
What is the current attitude of
various countries towards right to life and capital punishment?
Research
Methodology
Doctrinal methodology of research has
been incorporated in this research paper in order to know about death penalty
and right to life. This method enables the researcher to use the library and
e-library for the conduction of research. The sources extracted for library can
be divided into primary and secondary sources. Primary sources such as the
constitution act, Criminal Procedural Code, IPC etc. are used and secondary
sources such as books, research papers, articles, journals, editorials have
been used in order to extract the information. This research paper has used
analytical methodology of in order to analyzing the case laws related to know
the capital punishment and right to life in India. Comparative research
methodology has been used for comparing the scenario of right to life and death
penalty in different parts of world and in various international organizations.
Literature
Review
“The rhetoric and reality of capital
punishment
By Prashant singh and Meghna Sharma”[1]
The authors wrote this editorial for
“The Hindu” when The Supreme Court dismissed the review petition by the
culprits of Nirbhaya rape and murder case. In this editorial the authors have
put forward arguments which criticises the reasoning and the logicality which
are used by the people who advocates of practice of capital punishment. The
authors have tried to prove that the dismissal of the review petition by the
judges was wrong and the fear of
capital punishment will not contribute in deterrence of crimes such as
rape. But the authors in this editorial has failed to provide the alternative
of capital punishment.
The author examines the extent to
which international human rights treaties, such as the “International Covenant
on Civil and Political Rights (ICCPR)” of the United Nations (UN) and some
regional human rights treaties, have compelled the progressive abolition of the
death sentence. It then goes on to look at global patterns in terms of the
death penalty's imposition, as well as some of the potential areas for advocacy
or litigation in both retentionist and abolitionist governments, aiming at
lowering and eventually abolishing the practise.
In this book the author has in depth
analysed the right to life. He has analysed how various factors including
capital punishment deprives people of their right to live. He has analysed the
various implications of Article 6[4]
and Article 2[5] of
European convention on Human rights and how it affects right to life. The
author along with this has also looked into the inter – relationship between
right to life and other rights such as right to peace and right to development.
The author in this book has not properly focused on that what should be the
steps taken to eradicate the obstructions which comes in providing equal right
to life to all.
“Rights and Capital Punishment
By Thomas Hurka”[6]
In this journal the author analyses
the justifications given by the proponents of capital punishment. In this
journal the author has deeply analysed the utilitarianism, consequentialist and
retributive theories about capital punishment. The author in this journal has
argued that rights theories use an alternative rationale for punishment, one
that combines many of the appealing elements of the deterrent and retributive
justifications while avoiding their disadvantages. The author then tries to
prove that the rights-based explanation has more appealing moral implications
for capital punishment than either deterrence or retribution.
“Shutting
Down the Death Factory: The Abolition of Capital Punishment in South Africa
PETER by NORBERT BOUCKAERT”[7]
In this journal the author takes
about abolition of death penalty in South Africa. He talks about the historical
background and the reasons such as violation of right to life which prompted
the Supreme Court of South African to abolish death penalty in their county.
The author then goes on comparing the South African stand of death penalty and
right to life with that of India and America. The author in this journal has
ignored talking about the
views of various International organisations and other countries except America and India on Capital
punishment and Right to life .
This author in this paper have talked
about the scenario of death penalty in around the world , at the time when he
wrote this paper . Along with Praising the increase no of countries which have
abolished death penalty the author has also tries to shown that how the
countries who have not those countries that which still uses death penalty as a form of punishment have come to accept a
lot of the human rights arguments against it. But the author in this article
has not talked about the countries which have neither abolished death penalty
nor abstaining from performing things which deters the right to life of people.
Chapter 2 –
Death Penalty In India
In 1931 Babu Gaya Prasad Singh, an
elected member from Bihar, attempted to introduce a bill in the Central
Legislative Assembly to abolish the death penalty for transgressions under the
Indian Penal Code. The motion for circulation was failed, and Bhagat Singh,
Rajguru, and Sukhdev were hanged a few days later, on March 23, 1931. Later
that year, at its session in Karachi, the Congress passed a resolution calling
for the death penalty to be abolished. Then the Constituent Assembly debated a
number of issues related to the death sentence from 1947 and 1949 but at last
However, at last it was decided the that the question would be left on the
decision of Parliament. After that The Law Commission of India, chaired by
Justice (retd) J L Kapur, supported the retention of capital punishment in its 35th Report on “Capital
Punishment” in 1967. In 2003 the 187th law commission report recommended that
beside hanging ,lethal injection should
also be used as a method of execution and
at least 5 judges bench should hear the cases of capital punishment
.Then law commission in its 262nd report said that capital punishment violates
right to life and it should only be practiced in cases of terrorism. The
difficulty in getting the exact number of inmates serving death sentences in
India has been highlighted by Project 39A of the National Law University,
Delhi, which releases death penalty reports. Since independence, India has
executed roughly 755 people, according to Project 39A. According to the
research, Uttar Pradesh had the largest number of executions, with 366. In
addition, the state's Bareilly District Jail holds the distinction of having
carried out 130 executions, the most of any jail in the country, with the most
recent execution taking place on September 24, 1988. The Tihar Central Prisons
in Delhi carried out 28 executions Till 31st December 2020 , 404 people were on death row .
Judicial stand to capital punishment
and right to life in India
In this case, the validity of section
302[10](
under which a person who has committed
the crime of murder can be punished with death) by the attorney for the
appellant. He presented three arguments
in order to invalidate section 302 of
the IPC. In his 1st argument he said that with, execution violates all of the
fundamental rights protected by Clauses (a) to (g) of Sub-clause (1) of Article
19[11],
and thus the law concerning capital punishment is irrational and not in the
general public's interest. Second, the Judges' discretion to impose capital
penalty is not based on any legislatively mandated norms or policies favouring
capital punishment over life imprisonment.
Third, he argued that Article 14[12]
of the Constitution prohibits judges from exercising unrestricted and unguided
discretion in imposing Death penalty or life imprisonment. Finally, it was
argued that the law's provisions do not provide for a trial of reasons and
circumstances that are critical in deciding between the death penalty and life
imprisonment. The right of life which is conferred by Article 21 (1)[13]
of the Constitution was infringed.
After considering the arguments, a
five-judge panel maintained constitutionality and validity of capital
punishment , ruling that deprivation of life is constitutionally lawful and permissible punishment by the drawers of
our constitution.
Rajendra Prasad was the the appellant
who was charged with murder charges of 2 people.
He was initially condemned to life in
prison for First Murder, but was released on the eve of Gandhi Jayanti in 1972
after serving his term. But again in a flare-up of the long-running family
rivalry, he brutally murdered a friend of the other family on October 25, 1972,
just 23 days later.
The Allahabad court, after reviewing
the circumstances, sentenced him to death, but the verdict was overturned in
the Supreme Court on the grounds that the accused was not a threat to society
and that the murder was committed solely to settle a personal family feud. In
this case Justice Justice Krishna Iyer
said that capital punishment , according to, is a violated the article 14,
article 19. He said that capital
punishment also violates article 21 which confers right to life to the citizens
of India
In this case, it was also determined
that when a person is sentenced to death, he loses his right to life, so
jeopardising his fundamental right to life. He went on to say that two
conditions must be met in order to imposed Capital Punishment. At first the
special basis on which capital
punishment is being conferred in a case should be recorded. Second, the capital
punishment should only be imposed in exceptional circumstances.
“Bachchan Singh v. State of Punjab”[15]
The court held that the rights which
are guaranteed under article 19 (1) are not absolute rights. The Supreme Court has overturned its prior
decision in Rajendra Prasad's case, ruling that the death penalty under section
302 of the Indian Penal Code does not violate article 21. The court did not abolish capital punishment
completely however the judges said capital punishment should be imposed in a
reasonable and not arbitrary manner. In this case the court laid down the
principle of “rarest of the rare case”.
The judges said that “Judges should not be blood thirsty, the Court said
in this case. Resistance to taking a life through the instrumentality of laws
is predicated on a genuine and persistent respect for the dignity of human
life. That should only be done in the most exceptional of circumstances, when
the alternative choice is unquestionably ruled out.”[16]
“Machhi Singh And Others vs State of Punjab”16
In this case, the notion of the
"rarest of rare cases" was discussed and upon. It was a particularly
heinous case. Machhi Singh, the primary culprit in the case, with eleven
accomplices staged raids on a number of villages over the course of a single
night, killing seventeen people, men, women, and children, for no reason other
than they were linked to one Amar Singh and his sister Piyaro Bai. In this case
the court determined that there are five types of cases which might be
classified as the “rarest of rare cases”, and in which capital punishment can
be awarded. When a murder is committed in an unusually violent manner in order
to raise intense and extreme astonishment in the community. When a murder is
committed for a move that demonstrates depravity and cruelty. The crime is of a
social or socially reprehensible kind. The scale of the crime – heinous crimes
of huge proportions and the last criteria to determine that weather a crime
will be come under. “Rarest of the rare case” is the personality of the victim.
“Denna v. Union of India”[17]
It was a landmark decision by the
Supreme Court on the validity of hanging a person to carry out the Death
Penalty and if it was a violation of Article 21. The fundamental question was
whether Section 354 (5) of the Criminal Procedure Code was constitutionally
valid and whether it was in conflict with Article 21 of the Indian
Constitution. The Supreme Court ruled that hanging by rope during the execution
of the death penalty does not violate Article 21 of the Indian Constitution and
that it is legal.
“Sher Singh & Others
vs The State of Punjab”[18]
The Supreme Court ruled in this case
that the death sentence is constitutionally lawful and permissible within the
limits of the Bachan Singh rule. This must be recognised as the law of the land
and it does not violate right to life under article 21.
“Bhagwan Bux Singh And
Anr. vs The State of Uttar Pradesh”[19]
In this case also section 303 was
held violative of right to life conferred under Article 21. And it said that all convictions which will
come under section 303 will be dealt under section 302.
“Maru Ram etc .etc vs Union of India”[20]
In this case the court held that
awarding a person with death sentence after a fair trail is not wrong if he /
she deprived other from his / her right to life.
“Mithu vs State of Punjab”[21]
In the case of Mithu vs state of
Punjab the court held that section court held that section 303 of IPC which
says that “Whoever, being under sentence of imprisonment for life, commits
murder, shall be punished with death” was held unconstitutional and violative
of right of life and other right conferred under article 21 of the Indian
constitution..
“State of Rajasthan vs. Lachma Devi”[22]
The Supreme Court declared in
Attorney General of India vs. Lachma Devi, that public hanging, even if carried
out according to the rules, would be barbaric, disgusting, and bring shame to
any civilised society.
In this case the question of
constitutional validity was raised once more, using almost the same arguments
as in Jagmohan and Bachan Singh's earlier paper. Apart from invoking Art. 21
and claiming that the death penalty serves no social purpose, it was also
contended that the Law
“Smt. Shashi Nayar vs Union of India”[23]
Commission's 35th Report, which the
majority opinion referenced in support of the death penalty in Bachan Singh,
should not be used to advise the court.
“State of Maharashtra vs Vinayak
Shivaji Rao”[24]
In this case the convicted was awarded
with capital punishment for brutally killing house and in this case also the
court said that capital punishment is not violative of right to life conferred
under article 21.
Chapter 3
-Capital Punishment In Various Part Of World
Capital punishment has been either
officially been abolished or it is not been used since decades in South
American countries. Various reports published by international organization
such as Amnesty international and UNITED NATIONS Human rights council and
commission and etc has shown the trend in various countries towards abolition
of death penalty.
Venezuela was the first country to
permanently abolish the death penalty for all crimes in the world, doing so in
1863 under the administration of Juan Crisóstomo Falcón.
Brazil's last execution occurred in
1876, Colombia's in 1907, Puerto Rico's in 1927, and Chile's in 1985.
The capital punishment has completely
been abolished in Mexico, Argentina, and Bolivia.
In United States of America, the
capital punishment has been abolished in 23 states among 50 states of United
States Canada officially abolished capital punishment in 1998. In 2005 death
penalty was officially abolished in Mexico
23 countries among 54 countries of
Africa have officially abolished death penalty. There is an increase in
positive attitude of African countries towards abolition of capital punishment.
Sierra Leone a southwest African county
abolished death penalty in July 2021. Malawi's Supreme Court of Appeal ruled in
April 2021 that the capital punishment was unconstitutional and violates right
to life. In May 2020, Chad abolished the death penalty for all crimes.
Among 48 countries in Asia 33
countries still retains death penalty in their country. At least 85%, and maybe
as much as 95%, of the world's executions have taken place in Asia.
Excluding China Only four countries
accounted for 86 percent of all reported executions took place in. Iran, Saudi
Arabia, Iraq, and Egypt.
Except Tajikistan all countries of
central Asian region including. Kyrgyz Republic, Turkmenistan, Uzbekistan and
Kazakhstan has abolished death penalty.
Death penalty has been abolished in
all European countries except Belarus.
Among 14 countries in Oceania, there
are only 2 countries where death penalty is still practiced.
Chapter 4 – Stand Of International Organizations On
Right To Life And Capital Punishment
The death penalty is a breach of one
of the most basic human rights, and it goes against one of the most basic
principles of widely accepted human rights legislation. There is a rapid
increase in the number of people and nations who are supporting the abolition
of death penalty. The 1929 Geneva Convention was the first international pact
to limit the death penalty, limiting it to prisoners of war captured during
armed conflict.
In 1948 When the “Universal
Declaration of Human Rights (UDHR)” was adopted
there were only 10 countries where
death penalty was abolished, But till 2019 the number of countries where death
penalty has been increased to 106
On December 16, 1966, the “United
Nations General Assembly” enacted the “International Covenant on Civil and
Political Rights (ICCPR)”, was a multilateral instrumental which was signed by
173 countries. Along with various other Individuals civil and political rights,
such as freedom of religion, freedom of assembly, electoral rights, and the
right to due process and a fair trial, which was guaranteed by the treaty “the
right to life” was one of the most important right.“The International Covenant
on Civil and Political Rights (ICCPR)” encourages nations to abolish the death
sentence, and the Committee which are advocating human rights has backed this up with these strong
declarations. It does not abolishes capital punishment in its totality but puts
a number of strong constraints on the application of the death penalty under
Its Article 6[25].
Article 6 of the ICCPR has puts constrains such as “Right to a fair trial
before the death penalty is imposed; Limitation of the death penalty to only
the most serious crimes; Prohibition against imposing the death penalty when
other ICCPR rights have been violated; Prohibition against retroactive
imposition of the death penalty; Right to seek pardon or commutation of a death
penalty sentence;”[26]
Most of the international organisations which
are concerned with to human rights advocates the abolition of capital
punishment The United Nations General Assembly has also passed resolutions
opposing the death penalty. Commission on Human Rights and the Human Rights
Committee of United Nation have advanced many resolutions in this direction,
including the 1st resolution which was passed in 2007, which state that they
are "convinced that the abolition of the death penalty is vital for the
protection of this right [to life]." Since 2007, eight resolutions calling
for an end to executions have been passed, with the cumulative number of votes
in favour steadily increasing from 104 in 2007 to 123 in 2020. In 2020 38 countries voted against the abolition of
death penalty and. 24 voted for abstinence of death penalty.
Progress toward the abolition of the
death penalty is notably advanced throughout Europe. The death penalty is
denounced by the ”Council of Europe” and “the European Union”, which see it as
a kind of cruel and inhuman punishment and torture and violation of most basic
right of life. Since 1998 Council of
Europe have made abolishing of death penalty mandatory perquisite for those
counties who want to be its member.
According to the EU and the Council
of Europe, death penalty is inhuman and cruel and that it has no part to play
in the modernised legal systems and they strongly against the practise of
capital punishment. They also believe that the practise of death penalty has to
be eradicated in order “to contribute to the enhancement of human dignity and
the progressive development of human rights”[27].
Complete eradication of capital punishment has become mandatory for membership
if the Council of Europe.
In 2003 convention's “Protocol
No.13”, which abolishes the death penalty in all situations, went into effect
was introduced by council of European. Except for Armenia, Azerbaijan, and
Russia, all Council of Europe member nations have signed and ratified the
convention. The protocol has been signed but not ratified by Armenia.
In 2019, Amnesty International
observed 657 executions in 20 countries, which was 5% less than executions
which took place in 2018. This was the
lowest no of execution which took place in this decade by Amnesty
International.
The debate on the abolition of
capital punishment is no longer seen as merely a matter of state criminal
justice policy and has obviously gone into the realm of human rights especially
the right to live, The United Nations General Assembly, which represents all
recognised states, has urged for the death penalty to be abolished, and human
rights organisations agree that its application violates fundamental human
rights norms.
Conclusion
There has been an increase in the
countries advocating the abolition of death penalty. The proponents of
anti-capital punishment believe that killing a murderer is equivalent to
killing an innocent person and violates the right to life. They also believe
that keeping a murderer alive sanctifies the value of human life. On the other
hand the proponents of capital punishment believes that keeping every murderer
alive cheapens the human life as it deters murder and also threatens the right
to life of other people, because society teaches that how bad an action is by
punishments which metes out. After analyzing the ideas of both it can be said
that both the ideologies are extreme because killing every criminal and killing
no criminal is extreme. Because there is difference between the aim and the way
in commission of a crime, committed by two people. There are few people whose mindset
can never be reformed and preserving their right to life can threatens the
right of life of other innocent people. It can be concluded that the principle
of “the rarest of the rarest case” laid by the Indian Supreme Court draws a
middle path between both the ideologies, but even convicts of heinous crimes
should be given fair chance to prove their innocence and appeal for all
remedies.
References
1.“The rhetoric and reality of
capital punishment
By Prashant singh and Meghna Sharma”
2.“The right to life under
international law
By B.G Ramcharan”
3.“The right to life and the
progressive abolition of the death penalty
Christof Heyns,Thomas Probert. , Tess
Borden T”
4.“Shutting Down the Death Factory:
The Abolition of Capital Punishment in South Africa PETER by NORBERT BOUCKAERT”
5.“Abolishing the Death Penalty
Worldwide: The Impact of a “New Dynamic”
By Roger Hood and Carolyn Hoyle”
6. ”Catholicism & Capital
Punishment by Avery Cardinal Dulles”
.
Article Information
LAW OF CRIMES “Capital Punishment Vis A Vis Right To Life” (by- Prerna)
Author Name: Prerna
Title: LAW OF CRIMES “Capital Punishment Vis A Vis Right To Life”
Email Id: prerna.singh@student.slsh.edu.in
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/02
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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