Open Access Research Article
Need For Capital Punishment And Challenges (By: Navdeep Kaur & Amit Nagar)
Published Paper
Article Details
Need
For Capital Punishment And Challenges
Authored
By: Navdeep Kaur
(Assistant
Professor of Law, Asian Law College, Noida)
Amit
Nagar
(Assistant
Professor of Law, Asian Law College, Noida)
Abstract
Capital punishment is always a challenge as sometimes it has been seen
as unconstitutional and being violative of fundamental rights. Capital
punishment is given in rarest of rare cases. In Indian scenario it is being
served as punishment from the time immemorial. After we got independence in
1947 this system has been changed drastically. India retained the 1861 Penal
Code at independence in 1947, which provided for the death penalty for murder.
The idea of abolishing the death penalty expressed by several members of the
Constituent Assembly during the drafting of the Indian Constitution between
1947 and 1949, but no such provision was incorporated in the Constitution.[1] In the 1980 Bachan Singh judgment, the Supreme Court ruled that the death
penalty should only be used in the “rarest
of rare” cases, but it is not clear what defines the rarest of the
rare. The international
landscape regarding the death penalty – both in terms of international law and
state practice – has evolved in the past decades. Internationally, countries
are classified on their death penalty status, based on the following
categories: Abolitionist for all
crimes Abolitionist for ordinary crimes,
Abolitionist de facto, Retentionist.
Introduction:
Death
penalty to which is known as capital punishment which means killing a person
who is serious criminal offender. If we talk about death penalty it is
deterrent for others for committing same crime. In India capital punishment is
given in rarest of rare cases. In Indian scenario it is being served as
punishment from the time immemorial. After we got independence in 1947 this
system has been changed drastically.
Basic meaning of the term capital punishment is to give death to a
person for heinous crimes which he has committed and they are of such nature
that leaves society in shock. Though it is given in rarest of rare cases. In
India there are lots of crimes which leaves society in shock for which
punishment of Death is being given in rarest of rare cases to that offender.
Capital
punishment is given to a person by the order of the courts and it will take
effect after execution. In Indian scenario so far death penalty is being
awarded to so many people but if we see official date then it is executed only
in 57 cases. Currently, there are around 403 prisoners on death row in India
who has been awarded death penalty but still execution is pending. In India
Death penalty is there from 18th century and earlier it was executed
by burning people alive, beating etc. But now it can be executed only by
hanging a person.
Capital punishment, also called death
penalty, execution of an offender sentenced to death after conviction by a
court of law for a criminal offense. Capital punishment should be distinguished
from extrajudicial executions carried out without due process of law. The term
death penalty is sometimes used interchangeably with capital punishment, though
imposition of the penalty is not always followed by execution (even when it is
upheld on appeal), because of the possibility of commutation to life
imprisonment.[2] The term
"Capital Punishment" stands for most severe form of punishment. It is
the punishment which is to be awarded for the most heinous, grievous and
detestable crimes against humanity. While the definition and extent of such
crimes vary from country to country, state to state, age to age, the
implication of capital punishment has always been the death sentence. By common
usage in jurisprudence, criminology and penology, capital sentence means a
sentence of death[3]. Capital
punishment is an ancient sanction. There is practically no country in the world
where the death penalty has never existed. History of human civilization
reveals that during no period of time capital punishment has been discarded as
a mode of punishment. Capital punishment for murder, treason, arson,
and rape was widely employed in
ancient Greece under the laws of Draco (fl. 7th century BCE), though Plato
argued that it should be used only for the incorrigible. The Romans also used
it for a wide range of offenses, though citizens were exempted for a short time
during the republic. This finds support in the observation made by Sir Henry
Marine who stated that "Roman Republic did not abolish death sentence
though its non-use was primarily directed by the practice of punishment or exile
and the procedure of questions".[4]
The Indian justice system is based on
deterrent and reformative measures and the inherent principle of ‘Innocent
until proven guilty.’ Thus awarding of a death sentence is an infrequent
phenomenon in India and it is no wonder that when it happens it draws the eyes
of not only the indigenous media houses but also international media moguls.
There are no plausible statistics as to the number of executions that occurred
in India after Independence, but the numbers may be on the higher side than the
statistics claim.
Apart from the dispute on the number of executions, the death penalty itself has been the centre of debate for decades, with the current penal system drawing the ire of numerous human rights and civil liberties organizations not limited to one single country. Well known International human rights organizations such as Amnesty International, European Centre for Human Rights (ECHR), have constantly been striving in this regard to achieve the goal of worldwide abolition of death penalty for any offence. It is not only the International Organizations but there is a consensus within the United Nations itself to abolish the death penalty for good. Till now India has maintained a clear stance in the international arena on the question of the validity of the death penalty in spite of the ongoing discussions and debates going on both inside and outside the country. One of the major achievements of the international human rights organizations has been the passing of Juvenile Justice (Care and Protection of Children) Act, 2000. Before the passing of the Juvenile Justice Act in 2000, although never practised, the law still allowed people under the age of 18 to be hanged. In the year 2007, the UN proposed to all its member nations to put a stop on awarding death penalty in their respective states for any kind of offence. India firmly rejected the above-mentioned proposal.[5]
Apart from the dispute on the number of executions, the death penalty itself has been the centre of debate for decades, with the current penal system drawing the ire of numerous human rights and civil liberties organizations not limited to one single country. Well known International human rights organizations such as Amnesty International, European Centre for Human Rights (ECHR), have constantly been striving in this regard to achieve the goal of worldwide abolition of death penalty for any offence. It is not only the International Organizations but there is a consensus within the United Nations itself to abolish the death penalty for good. Till now India has maintained a clear stance in the international arena on the question of the validity of the death penalty in spite of the ongoing discussions and debates going on both inside and outside the country. One of the major achievements of the international human rights organizations has been the passing of Juvenile Justice (Care and Protection of Children) Act, 2000. Before the passing of the Juvenile Justice Act in 2000, although never practised, the law still allowed people under the age of 18 to be hanged. In the year 2007, the UN proposed to all its member nations to put a stop on awarding death penalty in their respective states for any kind of offence. India firmly rejected the above-mentioned proposal.[5]
There
Are Following Crimes In Which Death Penalty Can Be Given:
1.
Exacerbated Murder.
2.
Offence of being disloyal to the nation.
i.e., spying.
3.
To the terrorist.
4.
Rapists etc.
Capital
punishment is not specifically provided under particular section, but it is
there under so many sections. For example: under section 302 of Indian Penal
Code, section 376 A, criminal Law amendment act, 2013, section 364A of Indian
Penal Code, section 31 A of Narcotic Drugs and psychotropic substance act etc.
and its execution is there under section 379 of CRPC.
Our
Indian Justice system is bases on Deterrent and Reformative measures in order
to stop the furtherance of the crimes. So Capital Punishment is one of the
punishment which will create fear in the mind of people so that they will think
ten times before committing any crime which is against the morality and which
will shake the humanity. But yes in India it is being awarded in rarest of rare
cases. Important parts of capital punishment are
Indian Criminal justice system.
Evolution Of Capital Punishment
In India
India retained the 1861 Penal Code at
independence in 1947, which provided for the death penalty for murder. The idea
of abolishing the death penalty expressed by several members of the Constituent
Assembly during the drafting of the Indian Constitution between 1947 and 1949,
but no such provision was incorporated in the Constitution.[6] In the 1980 Bachan Singh judgment, the Supreme Court ruled that the death
penalty should only be used in the “rarest
of rare” cases, but it is not clear what defines the rarest of the
rare.
Constitutionality
Of Capital Punishment:[7]
Article
21 of Indian Constitution talk about Right to live but this right can be taken
by the court of Law if person commits heinous and grievous crimes which is in
the nature of shock to the general public. But the only mandatory thing is that
it should be by due process of Law because procedure like this should be just,
fair and it should be given only after following each important step.
Our constitutional principle can be stated as
follows
·
the death penalty should be used, Only in
rarest of rare cases.
·
the death penalty can be sentenced Only on
special grounds and should be treated as exceptional punishment.
·
the right to hear shall be given to the
accused.
·
In the light of individual circumstances, the
sentence should be individualized.
·
The death penalty shall be confirmed by the
High Court. Under Article 136 of the Constitution and under Section 379 of the Cr.P.C., there
is a right to appeal to the Supreme Court.
·
The accused may pray for forgiveness,
commutation, etc. of sentence under Sections 433 and 434 of the Cr.P.C. and to the President or
the Governors under Articles 72 and 161. Articles 72 and 161 contain,
apart from the judicial power, discretionary power for the President and
governor to interfere with the merits of the matter; however, there is a
limited authority for judicial authorities to review it and it must ensure that
the President or the governor has all relevant documents and material before
them.
·
However, the essence of the governor’s power
should not rest on race, religion, caste or political affiliations, but on a
rule of law and rational issues.
·
the accused has the right to a prompt and
fair trial in accordance with Articles 21 and 22 of the Constitution
·
under Article 21 and 22 The accused is not
entitled to be tortured
·
the accused has freedom of speech and
expression under custody Under Articles 21 and 19 of the Constitution
·
The accused is entitled to be presented by
duly qualified and appointed lawyers.
Challenges
to death penalty:
At
various instances death penalty was challenged. Various cases in which it was
challenged are as follows:
Jagmohan Singh vs. State of Uttar Pradesh, [8] the five judge bench
of the Supreme Court, by a unanimous verdict, upheld the constitutional
validity of death penalty held that capital punishment was not violative of
Articles 14, 19 and 21 and In this case the validity of death sentence was challenged
on the ground that it was violative of Articles 19 and 21 because it did not
provide any procedure. It was contended that the procedure prescribed under Cr.
P.C. was confined only to findings of guilt and not awarding death sentence.
The Supreme Court held that the choice of death sentence is done in accordance
with the procedure established by law. It was observed that the judge makes the
choice between capital sentence or imprisonment of life on the basis of
circumstances and facts and nature of crime brought on record during trial.
Rajendra Prasad vs.
State of Punjab, A.I.R. 1979, S.C.p.916.[9] in this case Justice Krishna Iyer challenged the validity of
the death penalty as being violative of basic tenets of the constitution and
they were of the view that it should be granted in exceptional circumstances
and strong reason should be given for imposing the same.
Bachan Singh vs. State of Punjab, [10] In this case the decision
which was given in Rajendra Prasad vs. State of Punjab case was overruled and
court opined that death penalty is not invalid and unconstitutional as it is
provided to those who violated the laws and there act was of such a nature
which was against the humanity. But in another case of supreme court gave
instances under which death penalty can be granted if certain provisions will
be fulfilled. For example, if Murder has been committed then the first thing
before granting him death penalty will be to see the gravity of the offence
which the person has committed as it was so brutal which shakened
the humanity. Another thing will be the magnitude of the
murder etc.
International Scenario
The
international landscape regarding the death penalty – both in terms of
international law and state practice – has evolved in the past decades.
Internationally, countries are classified on their death penalty status, based
on the following categories:
Abolitionist for all crimes Abolitionist for ordinary crimes,
Abolitionist de facto, Retentionist
At the end of 2014, 98 countries were
abolitionist for all crimes, 7 countries were abolitionist for ordinary crimes
only, and 35 were abolitionist in practice, making 140 countries in the world
abolitionist in law or practice. 58 countries are regarded as retentionist, who
still have the death penalty on their statute book, and have used it in the
recent past. While only a minority of countries retain and use the death
penalty, this list includes some of the most populous nations in the world,
including India, China, Indonesia, England, Australia and the United States,
making a majority of population in the world potentially subject to this
punishment.
Capital
Punishment: The Current Status
Supreme Court on Validity of
Capital Punishment in India
Article
21 of the Indian Constitution ensures the Fundamental Right to life and liberty
for all persons. It adds no person shall be deprived of his life or personal
liberty except according to procedure established by law. This has been legally
construed to mean if there is a procedure, which is fair and valid, then the
state by framing a law can deprive a person of his life. While the central
government has consistently maintained it would keep the death penalty in the
statute books to act as a deterrent, and for those who are a threat to society,
the Supreme Court too has upheld the constitutional validity of capital
punishment in “rarest of rare” cases. In Jagmohan Singh vs State of Uttar Pradesh
(1973), then in Rajendra Prasad vs State of Uttar Pradesh (1979), and finally
in Bachan
Singh vs State of Punjab (1980), the Supreme Court affirmed the
constitutional validity of the death penalty. It said that if capital
punishment is provided in the law and the procedure is a fair, just and
reasonable one, the death sentence can be awarded to a convict. This will,
however, only be in the “rarest of rare” cases, and the
courts should render “special reasons” while sending a person to the gallows.
Law
Commission Of India's Report On Death Penalty
The
Law Commission of India in its 262nd Report (August 2015) recommended that
death penalty be abolished for all crimes other than terrorism related offences
and waging war. Complete recommendations of the Report are as follows: The Commission recommended that measures suggested
that police reforms,Ø witness
protection scheme and victim compensation scheme should be taken up
expeditiously by the government. The
march of our own jurisprudence from removing the requirement of givingØ special reasons for
imposing life imprisonment instead of death in 1955; to requiring special
reasons for imposing the death penalty in 1973; to 1980 when the death penalty
was restricted by the Supreme Court to the rarest of rare cases – shows the
direction in which we have to head. Informed also by the expanded and deepened
contents and horizons of the Right to life and strengthened due process
requirements in the interactions between the State and the individual,
prevailing standards of constitutional morality and human dignity, the Commission
felt that time has come for India to move towards abolition of the death
penalty. Although there is no valid
penological justification for treating terrorism differentlyØ from other crimes, concern
is often raised that abolition of death penalty for terrorism-related offences
and waging war, will affect national security. However, given the concerns
raised by the law makers, the Commission did not see any reason to wait any
longer to take the first step towards abolition of the death penalty for all offences
other than terrorism related offences.
The Commission accordingly recommended that the death penalty be
abolished for all crimes other than terrorism related offences and waging war. Further, the Commission sincerely hopes that
the movement towards absolute- abolition will be swift and irreversible.[11]
Conclusion:
Capital
punishment, also called death penalty, execution of an offender sentenced to
death after conviction by a court of law for a criminal offense. Capital
punishment should be distinguished from extrajudicial executions carried out
without due process of law. The term death penalty is sometimes used
interchangeably with capital punishment, though imposition of the penalty is
not always followed by execution (even when it is upheld on appeal), because of
the possibility of commutation to life imprisonment. The term "Capital
Punishment" stands for most severe form of punishment. It is the
punishment which is to be awarded for the most heinous, grievous
and
detestable crimes against humanity. While the definition and extent of such
crimes vary from country to country, state to state, age to age, the
implication of capital punishment has always been the death sentence. By common
usage in jurisprudence, criminology and penology, capital sentence means a
sentence of death. Instead of having so many challenges on the basis of its
constitutionality, it is being awarded in rarest of rare cases as it is
necessary to punish those who are culprits of heneious crimes. Though The Law
Commission of India in its 262nd Report (August 2015) recommended that death
penalty be abolished for all crimes other than terrorism related offences and
waging war. Article 21 of the Indian
Constitution ensures the Fundamental Right to life and liberty for all persons.
It adds no person shall be deprived of his life or personal liberty except
according to procedure established by law. This has been legally construed to
mean if there is a procedure, which is fair and valid, then the state by
framing a law can deprive a person of his life. While the central government
has consistently maintained it would keep the death penalty in the statute
books to act as a deterrent, and for those who are a threat to society, the
Supreme Court too has upheld the constitutional validity of capital punishment
in “rarest of rare” cases.
Article Information
Need For Capital Punishment And Challenges (By: Navdeep Kaur & Amit Nagar)
Authors: Navdeep Kaur, Amit Nagar
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/16
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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