“MORAL JUSTIFICATIONS, IF ANY, FOR CAPITAL PUNISHMENT” by - Anjali Bhatt

“MORAL JUSTIFICATIONS, IF ANY, FOR CAPITAL PUNISHMENT”
 
Authored by - Anjali Bhatt
 
“The (capital punishment) controversy passes the anarch by. For him, the linking of death and punishment is absurd. In this respect, he is closer to the wrongdoer than to the judge, for the high-ranking culprit who is condemned to death is not prepared to acknowledge his sentence as atonement; rather, he sees his guilt in his own inadequacy. Thus, he recognizes himself not as a moral but as a tragic person.”
 
-         Ernst Junger
 “Punishment” is the coercive method primarily used for enforcement of law of land in the modern civilization. In order to maintain law and order in the society it is the duty of the state to punish the perpetrators of crime. In the ancient times, the kings used to determine the quantum of punishment depending on their judicial mind. As the time passed, criminal jurisprudence led to culmination of varied theories of punishment and the power to maintain discipline and order in the society was granted to state. In the present times, the highest form of punishment awarded is called Capital Punishment, which involves killing the person who has perpetrated an act, which qualifies to be a crime prohibited by law[1]. The other reference to Capital Punishment is “Death Penalty” and the same is state sanctioned. The sentence that condemns the convict to death is called “Death Sentence” and the action of granting the death sentence is referred to as “Execution”.[2]
 
The criminal courts of justice grant punishment based on five theories of punishment enlisted below:
1.      Reformative Theory
2.      Deterrence  Theory
3.      Retributive Theory
4.      Preventive Theory, and
5.      Expiation Theory
In the landmark case of “Rajendra Prasad versus State of Uttar Pradesh”, Justice V.R. Iyer exclaimed that:
 
“The special reason must relate, not to the crime but to the criminal. The crime may be shocking and yet the criminal may not deserve the Death Penalty[3].” On the analysis of all theories of punishment, it can easily be assessed that Reformative Theory has its own popularity and likeness as compared to Deterrent Theory since the former offers a scope for improvement, which is totally absent from the Deterrent Theory. Nonetheless, we cannot deny the need of deterrence in a social setup when a perpetrator of crime takes the liberty of committing a gruesome act infringing the safety health and security of even a single individual of the society.
 
Position of Death Penalty in India
As a precedent, Capital Punishment is granted only to the offenders who have committed a serious crime. More so, the court while awarding death penalty should be convinced that the offence cascades under the purview of “Rarest of the Rare” crime. Indian Legal Grundnorm, under Article 21 grants to all individuals the fundamental right to life and personal liberty. Reiterating the provision of law, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Hence, the right under Article 21 is against the State that is the custodian of all individuals on the territory and this right can be taken away only in the most extraordinary circumstances.
 
Death Penalty by law has been granted for certain offences under Indian Penal Code 1860 namely, Murder under Section 302; Dacoity with Murder under Section 396; Act of waging war against the Indian Government or Attempt to do so under Section 121; Abatement of Mutiny under Section 132, Criminal Conspiracy under Section 120 B etc[4]. Apart from Indian Penal Code, provision relating to Death Penalty is present in Anti-Terrorism Laws and NDPS Act etc.
 
In India, only the Supreme Court, High Courts and the Courts of Session can pass Death Sentence Order. The Sessions Court and the Additional Sessions Court are empowered by law to pass any sentence but the sentence of death must be affirmed by the High Court.[5] The convicted person has the power to appeal against the Death Sentence in the Apex Court. However, if the Supreme Court upholds the death penalty, the last resort remaining with the convict is Appeal for Mercy. Indian Constitution guaranteed special powers to the Indian President and the Governor under Article 72 and 161 respectively, to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.[6]
 
Types of Punishment
The Penal Code of India, Section 53-75 enumerates various kinds of punishments awarded to the criminals. There are Five Types of punishments:
1.      Simple/ Rigorous Imprisonment
2.      Life Imprisonment
3.      Fine
4.      Forfeiture of Property
5.      Death Penalty
Imprisonment is defined as confinement within the four walls of prison. This is where the freedom of movement and liberty of the perpetrator is retrained. Imprisonment became a known and popular method of punishment only in the 19th Century. Today it is practices by most of the countries.[7] Imprisonment is of three types namely Simple, Rigorous and Life Imprisonment.
 
Levying of Fines is one of the most ancient and commonly used form of punishment. Fine can be levied on a standalone basis or it can also be coupled with other types and punishments. Fine can vary between small to large denominations of money.
 
In addition, Forfeiture of property of the criminal is a prevalent form of punishment since old times and IPC provides for the same. The property to be forfeited can be anything ranging from a house, car to cattle, thus any movable or immovable asset owned by the perpetrator qualifies this category.
Lastly, the punishment of the highest degree that is capital punishment is where the perpetrator of the crime on being found guilty post trial is executed. The offender shall be sentenced to this form of punishment if his crime touches the threshold of being “rarest of rare’. This form of punishment is used very sparingly after sufficient application of judicial mind.
 
Mode of execution
The Royal Commission 1949-1953, in its “Report on Capital Punishment” while discussing about the modus of executing a death penalty mentioned 3 necessary conditions that must be fulfilled while implementing the same:
 
a)      It must be as less painful for the convict as possible;
b)      The death of the convict must be as quick as possible; and
c)      There should be least possible mutilation of the human body.[8]
“Hanging” the criminal is the most common way of executing a death penalty. Code of Criminal Procedure, 1973, Section 354(4) prescribes, “Hanging till death” as the mode of executing a death sentence. In India, the punishment is executed by hanging the offender by a rope until he dies.
 
Apex Court in the case of “Bachan Singh vs. State of Punjab”[9] has observed that the bodily pain and suffering that “Hanging” entails is no less than inhuman and cruel. Based on the observation of the Apex Court, the Law Commission of India undertook research study to provide for a compassionate form of death penalty, whereinafter the Commission suggested modification in Section 354(5) CrPC by inserting an alternate method of execution of death sentence by way of a lethal injection until the death of the accused. However, the accused shall have the right to heard on the method of execution of death sentence.[10]
 
 
“Shooting” is another method of carrying out the capital punshiment in India. Indian Laws allow the firing squad to shoot the death row convict.[11] However, death penalty by this mode is allowed only under Army Act, Air Force Act, and Navy Act, which grants an option to the Court Martial Tribunal to determine whether the condemned person should be shot to death or hanged until death. [12]
 
Category of Offenders Excluded from Capital Punishment
Minor: Indian Laws exclude Minor from Capital Punishment i.e. an individual who has not completed 18 years of age as on the date of commission of crime cannot be granted Capital Punishment. The lawmaker’s reasoning behind including minors in the excluded category of offenders from capital punishment is that the minor means a child who still is in the process of complete physical and mental development. With right guidance in the appropriate environment, the delinquent child can be reformed into a better individual fit for the society. Also, a separate enactment called as Juvenile Justice (Care and Protection of Children) Act, 2015[13] is enacted particularly to deal with minor offenders.
 
Pregnant Woman: In almost all the countries in the world, in some form or the world, pregnant women fall in the Category of Offenders Excluded from Capital Punishment. While the law in some countries provide for not awarding capital punishment to a pregnant woman, whereas in few other countries it merely provide for postponement of sentence. For example in Greece, death sentence to a pregnant woman can be delayed for 6 months in case of breast-feeding and 30 days otherwise. Further, few countries also provide for not notifying the death sentence of a pregnant woman till the lapse of certain specified days after the child birth. Two countries in the world where execution of pregnant women is legal are Saint Kitts and Nevis[14].
 
In India, Section 382, Code of Criminal Procedure, 1898[15] provides for conversion of capital punishment into life imprisonment if the convict woman is pregnant. In addition, the new Criminal Procedure Code, 1973 was amended in 2009 wherein certain words of Section 416 were omitted whereby the death sentence of pregnant women could be commuted to life imprisonment by the High Court. The rationale of the amendment being that the punishment of death granted to a pregnant women would result in killing of an innocent soul as well present in the womb of the delinquent woman. The child in the mother’s womb has actually perpetrated no crime and hence, does not deserve punishment.
 
Intellectually Disabled: The law states that any person who qualifies to be intellectually disabled should be included in the category of convicts excluded from capital punishment. Intellectual disability embarks inability of the perpetrator to understand the nature and outcome of the act committed.[16]
 
Law Commission Report on Capital Punishment
The “35th Report of Law Commission of India” recommended retaining the death penalty punishment in India. However, in its 262nd Report the Commission after extensive research and study, recommended abolition of death penalty for all crimes except the ones qualifying as act of terrorism and waging war. Justice A P Shah was heading the commission as its chairperson. In addition, the commission went a step further to recommend various steps and schemes towards movement of total abolition of death penalty. This led to amendment in law whereby in 1955, the need to communicate reason for commutation of death sentence was done away with. Further, in 1973, amendment of law added a clause necessitating the need of special reason for imposition of capital sentence. Furthermore, from 1980 onwards capital punishment has been restricted to only “rarest of rare” cases. The amendments clearly suggest that Indian law is slowly moving towards abolition of capital punishment. The reason for retaining death penalty in the cases of offences relating to waging of war and terrorism is that they directly influence national security and any lenient approach towards the same might have an impact on the security and peace of the country.
 
Moral Justification for Death Penalty
Death penalty has been used by societies around the world since time immemorial as a way of punishment for the most heinous crimes.  Although it has been abolished by many countries, yet it is still being practised today. Death penalty remains a controversial debate owing to the involvement of emotions and moral complexities, around the world.
 
Even though the application of the death penalty might vary greatly from country to country, it is widely known that death penalty is granted for crimes contract killing, aggravated murder, and criminal murder in United States. There are many crimes that can lead to a death sentence, such as espionage, treason, military justice, sexual crimes (like rape, adultery, incest, and sodomy), religious crimes (like formally giving up the state religion in Islamic countries), drug trafficking, human trafficking, and serious cases of corruption. Also, people have been sentenced to death for crimes by military courts around the world. Morality is the commonly used ground for opposing the death penalty. The best approach to analyse the morality of an action is to consider three factors: the act itself, the reason behind it, and the results of it. The death penalty's primary motivations are retaliation, deterrence, and punishment. Examples of the act include electrocution, lethal injection, and hanging, all of which result in death. The executioner and the prisoner who is about to die suffer because of the cruel methods used to bring about death.
 
In order to under the whether capital punishment is morally justified or no we need to examine the history of the death penalty. Thereby we shall gain clarity on whether or not it is an inhumane form of punishment. Naively, nearly every civilization has at one time or another resorted to the practise of putting criminals and political opponents to death as a means to deter crime and subdue political resistance. Since the beginning of recorded history, people have been put to death in a formal setting. According to the bulk of historical reports and other ancient tribal practises, the execution of criminals was an accepted form of dispute resolution under their legal system. The traditional means of carrying out the sentence of death were sometimes gruesome and bloody. This includes crucifixion, crushing, beheading, and dismemberment, as described in the Bible. It also includes boiling to death, being buried alive, and burning. All of these horrifying execution techniques must be compared with today's, more humane, methods of capital punishment. Lethal injection, electrocution, and hanging have all been used as forms of capital punishment in recent American history. Lethal injection and electrocution are still used today. While it is true that some of the contemporary approaches are more acceptable than those of the ancients and even certain other modern nations, sometimes they still fall short of compassion.
 
For instance, electrocution is cruel because it causes severe suffering that lasts until the prisoner loses consciousness and dies from brain damage. Running into an electric fence and feeling the excruciating pain, is something that one can never be understand until undergone. The electric chair has broken down on rare occasions, which may make the pain worse. One more modern method of execution is the administration of a lethal dose of a medication through injection. The Reverend Bill Wiseman was the first person in Oklahoma to utilize the lethal injection method of execution in 1977. Its first known application was in the U.S. state of Texas. The People's Republic of China, Guatemala, the Philippines, Thailand, and Taiwan, together with all other states in the United States except for seventeen, were the first to apply this strategy in 1997. The three chemicals that are utilized in the injection that ultimately results in the death of the prisoner are as follows: sodium thiopental, which paralyses the muscles and causes respiratory arrest; potassium chloride, which stops the heart. This is a reasonably painless way of execution compared to other options. However, a study carried out at the University of Miami and published in the medical journal "The Lancer" reveals “Many of the individuals who administered the lethal injections did not have any training in anesthesia, that the medications were given remotely without any monitoring of anesthesia, that the data were not recorded, and that there was no peer review.” Because of such revelations, it is very difficult, if not impossible, to determine whether the prisoners go through an intolerable level of pain when they were being put to death. Even though it hurts a lot and has been compared to getting an electric shock, most people agree that this is the most humane way to put someone to death.
 
Primary reasons in support of the death sentence now despite its barbaric nature, is revenge and deterrence. These are the key arguments that can be made in support of it. A significant number of people are of the opinion that the penalty should be appropriate for the offence. Because of this, the death sentence is the sanction that is considered the most suitable for the most severe of offences.
 
 
In a similar spirit, the use of the death penalty as a deterrent is strongly supported because it reduces the likelihood that heinous crimes will be committed in the future. The person who has perpetrated an offence which demands capital punishment should not receive meagre punishment only because it might deter him and other anti-social elements from obligating crime in the future, thus, making everybody safe[17]. Our society has long used sentence and penalty as a medium to dispirit prospective criminals from illicit action. It should use the strongest punishment i.e. death penalty to deter murder because of the fact that prevention of murder is its highest interest. Potential murderers will give second thoughts before killing if there is death sentence and the murderers are executed as they will have a fear of being treated the same. As a result, people shall feel secure.
 
The victim's family finds solace in knowing that the culprit has been caught and appropriately punished. In order to maintain justice value should be given to the lives of innocent over the lives of killers. When looked at from the side of innocent victims who had been subjected to cruel, untimely “Bad guys deserve to suffer.” This is a frank slogan, but it internments the quintessence of a deeply familiar notion: people who have committed culpable wrongs deserve their lives to go worse as a result.[18]  
Victims are left with no choice to bid goodbye to near and dear ones, or enjoy last few moments of their life. On the other hand, murderers who have been convicted for life imprisonment or even on death row have at least an opportunity to not only appeal their sentence but also to learn, read, write, watch television, listen to music, find religion, and maintain relationships as per their last will and desire.
Death penalty is a symbol of justice for many and is the only resort for the society to express its revulsion adequately for the innocent killings. According, to the majority of Americans, convicted killers deserve legal executions, which fits their crime. In order to restore the balance of justice in society, death penalty is the most fitting penalty, which highlights the fact that the most severe crimes are intolerable and will be punished with the same magnitude.
In addition, death penalty guarantees that there would be no further killing by the murderers that get convicted. There have been a number of cases where fellow inmates and/or prison guards have been murdered by convicts sentenced to life imprisonment. Also, it has been known that at times murders have been successfully planned by convicts from within the prison. To add to it, cases are there where murder have been committed by convicts after returning to society on parole even when they had been served with life sentence. The only irrevocable penalty which protects lives of innocent people is the death penalty.
The fact that some studies are inconclusive w.r.t. deterrence is because capital punishment is sparingly used and for an execution to be actually carried out it takes years. Best deterrents are those punishments which are swift and sure. It cannot be concluded that deterrence has failed because of the fact that lower murder rates have been recorded by jurisdictions where death penalty has not been used than by the countries or states where the same have been used.
Ernest van den Haag professor of Jurisprudence at Fordham University extensively studied the question of deterrence closely and wrote, "Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks."[19]
Thus, capital punishment positively acts as a deterrent and a form of permanent incapacitation, which in turn helps in curbing future crime.
There is disturbance to the balance of justice when someone’s life is taken away and if the balance is not restored, society would succumb to a rule of violence. The only way in which balance can be restored is subjecting the murderer to death penalty which convincingly shows to the society that it is an intolerable crime.
Even though restoration of the status which existed prior to the murder is not possible for the victim and its family but awarding of death penalty brings crime of the murderer to a closure and is also an assurance that no more victims will be created in future.  For the most harsh and atrocious crimes, lawbreakers deserve the nastiest penalty under our system of law, and that is the death penalty. The value which the society places on protecting lives would be undermined if any punishment lesser than death penalty would be provided.
The concept of need for retribution has been described by Mr. Robert Macy, District Attorney of Oklahoma City in one of his cases as-
"In 1991, a young mother was rendered helpless and made to watch as her baby was executed. The mother was then mutilated and killed. The killer should not lie in some prison with three meals day, clean sheets, cable TV, family visits and endless appeals. For justice to prevail, some killers just need to die."[20]
As far as capital punishment is concerned, the prisoner is not rehabilitated and returned to the society but there are many instances where persons subjected to death penalty took the opportunity of the time before being executed to express remorse, repent and very often experience profound spiritual rehabilitation.
Thomas Aquinas noted that by accepting the punishment of death, the offender was able to expiate his evil deeds and so escape punishment in the next life.[21] It can thus be said that death penalty leads to some form of rehabilitation.
Lastly, executing the innocent is a rare but acceptable risk of the death penalty. As far as execution of innocent persons are concerned there is no proof to it as there was addition of increase safeguards and appeals in the 1970s to our system of death penalty.
In any case, execution of innocents is a very rare happening and it is also wrong to leave the innocent people behind the bars. There should be institution of reforms if need be to improve the arrangement of representation or the use of methodological scientific evidence such as DNA testing. However, death penalty should not be abolished just because there needs to be suitable reforms in place.
Besides, the claims of those who are now free from death row and are innocent, are based on legal technicalities. In addition, it may be a fact that a person may not be innocent only because his conviction has been overturned years later or the prosecution lawyer has decided not to retry him.
A person will surely be spared and granted clemency if their innocence is shown. However, sometimes it is seen as just a kind of tactic to delay the execution as long as possible by taking recourse to hypothetical claims of innocence. Today, it’s almost impossible to execute an innocent person owing to the detailed system of appeals through various state as well as federal courts. Even justification can be given to the theoretical execution of an innocent person because the death penalty saves lives by acting as a deterrent.
Considering the abovementioned reasoning, I think the death penalty is the best and most reasonable solution as it is a highly effective deterrent to murder, justifies retribution as appropriate punishment needs to be imposed and in the case of the murderer what their crime deserves is death. Also, it does lead to some form of rehabilitation and it is undeniable that those who are executed cannot commit further crimes. To sum it, subjecting a criminal to death penalty is a befitting way to provide closure for the victim’s families.
 
 

[1] Roger Hood, Capital punishment | Definition, Debate, Examples, & Facts | Britannica, www.britannica.com/topic/capital-punishment (last visited Dec 15, 2022).
[2] Abhinav Narayan, Capital Punishment: A Comparative Study, 77 (1978).
[3] Rajendra Prasad Etc. vs State Of Uttar Pradesh, 1979 AIR 916.
[4] The Indian Penal Code, 1864, No. 45, Acts of Parliament, 1860 (India).
[5] The Code of Criminal Procedure, 1973, s 28, Acts of Parliament, 1973 (India).
[6] Aditya Kishore, Death Penalty in India, www.legalserviceindia.com/legal/article-7567-death-penalty-in-india.html (last visited Dec 15, 2022).
[7] Ishaan Tyagi & Year B A Ll, CAPITAL PUNISHMENT?: A CRITICAL STUDY, 6 Int. J. Leg. Dev. ALLIED ISSUES 143 (2020).
[8] Melvin F. Wingersky, Report of the Royal Commission on Capital Punishment (1949-1953): A Review, 44 J. Crim. Law. Criminol. Police Sci. 695 (1954).
[9]  Bachan Singh vs. State of Punjab (1982) 3 SCC 25
[10] LAW COMMISSION OF INDIA, 187th Report on Mode of Execution of Death Sentence and Incidental Matters, 1 (2003).
[11] India Today, Death penalty in India: Did you know shooting by firing squad is an execution method? - India Today, (2019), www.indiatoday.in/india/story/death-penalty-in-india-did-you-know-shooting-by-firing-squad-is-an-execution-method-1627798-2019-12-12 (last visited Dec 15, 2022).
[12] The Air Force Act, 1950, s. 163, Acts of Parliament, 1950 (India).
[13] The Juvenile Justice (Care and Protection of Children) Act, 2000 [India], Act No. 56, 30 December 2000, available at: www.refworld.org/docid/54c209764.html [accessed 15 December 2022]
[14] Erasmus Susan, Executing pregnant women | Health24, news24 (2014), www.news24.com/health24/parenting/pregnancy/execution-and-pregnant-women-20140516 (last visited Dec 15, 2022).
[15] The Code of Criminal Procedure, 1898, Act NO. 5 OF 1898
[16] Talawar Naveen, Capital punishment in India - iPleaders, Sneha Mahawar (2022), blog.ipleaders.in/capital-punishment-in-india-2/#Intellectually_disabled (last visited Dec 15, 2022).
[17] The Conversation, Death penalty: is capital punishment morally justified? Available at theconversation.com/death-penalty-is-capital-punishment-morally-justified-42970, last seen on 15/05/2018.
[18] Supra 1.
[19] Arguments for and Against the Death Penalty, Michigan State University and Death Penalty Information Centre, available at deathpenaltycurriculum.org/student/c/about/arguments/arguments.PDF, last seen on 15/05/2018 (2000).
[20] Supra 1.
[21] A breakdown of the arguments given in favour of keeping (or reintroducing) the death penalty, BBC, available at www.bbc.co.uk/ethics/capitalpunishment/for_1.shtml, last seen 15/05/2018.