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A STUDY ON CONSTITUTIONALITY OF THE CAPITAL PUNISHMENT
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A STUDY ON CONSTITUTIONALITY OF THE
CAPITAL PUNISHMENT
AUTHORED BY
- ASMA ASHRAF
ABSTRACT
Capital punishment gathers heated
debates in the present time. The death penalty was blamed for too long without
having any comprehension of its nuances. It was blamed majorly on the basis of
human rights, irreversibility, and arbitrariness. Still, capital punishment
passes muster on all accounts. The death penalty was applied historically as a
type of punishment for a wide range of crimes, from the most serious offences[1]. The death
penalty, also termed capital punishment, is the sentence of execution for a
criminal offence.There are two basic reasons for imposing the punishment[2]. One is
the opinion that a person who has committed a wrong must suffer for it, while
the other is the concept that punishing criminals deters others from doing
wrong. The same foundation that underlies other punishments also supports the
death penalty. Death penalty or Capital punishment is a significant part of the
Indian criminal justice system. The presence of the death penalty is questioned
as unethical with the support of India's human rights movement. Nevertheless,
this is a peculiar argument, as preserving one individual alive at the expense
of the lives of other members of society or potential victims is inconceivable
and immoral.
Keywords:
Capital Punishment, Theories of Punishment, Immoral, Commutation,
Circumstances.
INTRODUCTION
Capital punishment is considered an
issue of human rights violation by many but its main purpose is to safeguard
society from dangerous criminals who pose a threat to the welfare of society.
Crime can be reduced with the death penalty. The death penalty is a
constitutional issue that was debated for years. Some consider it a crime
deterrent, while others consider it unconstitutional.[3]
The fear of facing the ultimate
punishment of the death penalty may prevent some individuals from committing
heinous crimes. This is particularly true for people who have already been
convicted of a crime and are facing the death penalty for a new crime. In
addition, the death penalty can helps serve as a closure for the victims' families and as a form of
justice for the harm caused by the perpetrator.
The role of justice in the execution
of the death penalty is complex. The death penalty evokes divergent opinions
among people. Some view it as a just punishment that befits the criminal’s actions, while others argue that it lacks fairness due
to inconsistent application. As a result, the death penalty remains a
contentious and ongoing topic of debate. Despite the controversy surrounding
the death penalty, its constitutionality and effectiveness as a crime deterrent
cannot be denied. When discussing the role of justice in the death penalty,
both justice for the victims of crime and justice for the accused must be
considered. The death penalty is often viewed as a form of punishment that does
justice to the victims, deters other offenders from committing similar crimes,
and as well as retribution for the perpetrator’s
actions However, some critics of the death penalty contend that this form of
punishment is inhumane, immoral and disproportionate to the crime committed.
To obtain justice, all aspects of the
crime must be considered, including the intentions of the perpetrator, the impact
on victims and their families, and the potential deterrent effect on others. In
the case of the death penalty, justice is served by imposing a punishment
proportionate to the crime committed. This form of punishment is often seen as
a way to bring justice not only to the offender but also to those affected by
his or her actions. The role of justice
with regard to the accused should also be considered. In the case of the death
penalty, justice is achieved by ensuring that the accused is found guilty beyond
a reasonable doubt and that the sentence is not administered indiscriminately
or haphazardly. Ultimately, justice is crucial in the death penalty because it
protects the rights of both the victims and the accused. Understanding the
legal processes and implications of the death penalty will ensure justice for
all involved.
This article will explore
§ Whether the
death penalty is unconstitutional and whether it violates article 21
§ The
Doctrine of “rarest of rare” cases
§ The
jurisprudence of capital punishment
§ and with
regards to “Monoamine Oxidase A” (MAOA gene), which is said to show
aggressive and psychological behaviour where those with low MAOA gene are more
susceptible to crime than persons without.
CAPITAL PUNISHMENT IN INDIA
The execution of an
individual who has been discovered guilty of a crime & given the death
penalty by a court law and is recognized as capital punishment occasionally
referred to as the death penalty. The word death penalty is commonly utilized
interchangeably with capital punishment, despite the fact that the application
of the sentence does not necessarily leads to execution (even when it is
affirmed on appeal). This is due to a chance that the sentence might be altered
to life in a prison sentence. There has been a minimum of 1,422 executions in
India between 1953 and 1963 which led to a gradual decrease in the usage of the
death penalty. Though, India has the greatest population in South Asia it has
the most effective sporadic executions, commonly numerous years apart. 162
death sentences have been imposed in India in the year 2018, and there have
only been 3 executions of the death penalty over the last decade, leaving 426
offenders on death row by the year 2018. The use of the death penalty in India
was restricted to rare circumstances due to serious demands against its
continued usage.
In the case of
Bachan Singh vs State of Punjab[4], the “Supreme Court” (SC) upheld the
constitutionality of capital punishment, the judge emphasized that the death
penalty is an exception rather than the rule, save in the rarest of situations
where there are no other viable options left, and can only be imposed in the
most severe cases of extreme guilt. Consequently, the Court continued to
support the legitimacy of the death sentence in accordance with the concept of
unusual situations, which imbues judicial proceedings with a high assumption in
life's favour, recognizing that the death penalty should be reserved for
exceptional circumstances. The judges should decide whether or not to prosecute
an offender with the death penalty because this has not been established and no
clear rules have been set.
DOES THE CAPITAL PUNISHMENT VIOLATE INDIAN
CONSTITUTION’S ARTICLE
21?
I would like to cite
a few case laws where the constitutionality of capital punishment was upheld.
The constitutionality of the death sentence has been contested in the SC case
of Jagmohan Singh vs. the State of U.P[5].
It has been contended that the right to life is a basic human right along with
death sentence violates Indian Constitution’s Article 21. However, the court rejected these claims and
determined that there was no way to prove that the death penalty violated
Indian Constitution Article 21.
Deena vs. Union of
India[6] case, the execution of
capital punishment has been brought before the court and it has been ruled that
a prisoner cannot be exposed to degradation, torture, humiliation, or barbarity
prior to the execution of the sentence, but hanging did not directly or
indirectly entail any of these. Therefore, hanging is not a harsh means of
carrying out a punishment. The court declined to revisit the issue of the death
penalty's legality despite an attempt. As a result, Indian Constitution Article
21 is not violated.
In Mithu Singh v.
State of Punjab[7], The SC ruled that Indian
Penal Code (IPC) Section 303 is unconstitutional because it violates Indian
Constitution’s Articles 14 &
21, but the death penalty remains in effect in extremely rare cases. Indian
Constitution Article 21 ensures the right to life & personal freedom, which
includes the right to live with “human dignity”. It
states that no individual must be stripped of his right unless in accordance
with the legal procedure. It asserts that the state could have the authority to
take life in the name of the law & the general public.
Rajendra Prasad vs.
State of U.P[8] case, Justice Iyer advocated
for the abolition of the death sentence and its preservation for exclusively
white-collar offences. But in the Bachchan Singh Case[9],
the majority of the court overturned Rajendra Prasad's decision and determined
that section 302 of the IPC, which imposes the death punishment, did not
violate Article 21. India is a signatory to the “international
convention”
on Civil and political rights of 1979, but it has not abolished
the death sentence. Instead, it applies it in a rational and not arbitrary
manner.
DOCTRINE OF RAREST OF RARE
When adjudicating
matters concerning the imposition of Capital Punishment (the Death Penalty)
The court generally uses its perspective to assess the seriousness and severity
of the offence committed. Capital Punishment is only imposed in cases when the offence
is extreme and terrible, and the commission of such an offence is an extreme occurrence
in society, which a prudent person would never consider. Typically, the
Judiciary refrains from imposing the death penalty, instead imposing the
maximum punishment of life imprisonment. In India, the “rarest of the rare” case concept is utilized
by the courts as a tool to award capital punishment to convicted offenders if
proven guilty of committing a heinous crime.
The Indian laws
neither upheld the principle of the Death Penalty from a consistent point of
view nor it fully deferred. Death Penalty may still be given in some of the
rare cases such as in Section 121, 302, 364A, and any other section of the IPC
of 1860 that suggests the application of the Death Penalty as a type of
punishment
As per the court,
the five elements of murder that must be present for the idea of the “rarest of rare” cases
to be applied are[10]:
·
The victim personality
·
The Motive
·
The manner in which crimes are committed
·
The extent of the crime
·
The crime's antisocial or repugnant nature.
The court shall
decide the offender’s punishment based
on the aforementioned guidelines.
Ramnares and Ors vs.
State of Chhattisgarh case[11], The SC requested that the
accused receive the death punishment for his brutal gang rape and subsequent
murder. The victim was strangled to death while being gang raped by the
offender's brother-in-law and his drunken friends. The notion that only the
rarest of rare circumstances should be considered for the death penalty was
established with the court during the discussion. The SC focuses on the type of
offence, the circumstances, the degree of brutality, and the motivation while
deciding whether to execute a defendant, coming to the conclusion that it is
crucial for the court to consider the facts of each case in the context of the
stated principles. However, it seems that considering these principles leads to
the conclusion that even the most horrible crimes may not always warrant the
death penalty because each case has unique circumstances. The word "rarest
of rare" refers to unusual occurrences that stand out for a particular
cause. The principle is separated into the two parts listed below:
·
The Aggravating Circumstances and
·
The Mitigating Circumstances
The Aggravating Circumstances[12] - Only at the court's
discretion may the death sentence be imposed-
·
A public employee acted in accordance with
Section 43 of the CrPC, 1973, in order to legally fulfil their duties
·
if the murder was brutal and carried out after
careful preparation.
·
The Murder demonstrates extreme wickedness.
·
The victim was a member of the police, armed
forces, or other public officials who were on duty at the time of the murder
The Mitigating Factors
are: - The court shall consider the following factors:
The death
penalty must not be applied to juvenile offenders.
·
It was considered that the accused was justifiable in
committing a crime based on facts and circumstances.
·
The likelihood that the defendant will not commit a
crime against society.
·
The defendant's condition demonstrates that he was
mentally fragile.
·
The act was performed under duress.
·
Crime committed while suffering from a mental or
emotional disorder.
The Apex Court
emphasized that the bench shall not impose a sentence in "the rarest of
rare cases" when mitigating circumstances exist. After weighing both aggravating
and mitigating factors and applying the principle, the court determined that
the guilty party must be sentenced to life in prison. This judgment was based
on three significant factors[13]: -
·
That the defendant was young
·
The cause of death was strangling
·
The defendant, who is the victim's brother-in-law, had
extramarital affairs with the victim, who was not a legally wedded wife.
JURISPRUDENCE OF CAPITAL PUNISHMENT
Capital punishment
has a long history, existing in nearly every country throughout human
civilization. In Ancient Greece, It was employed for crimes such as murder,
treason, arson, and rape, as per the laws of the Draco ( 7th century BCE )[14]. However, Plato, a Greek
philosopher argued that it should be reserved for the most incorrigible
offenders. Similarly, the Romans used capital punishment for various offences,
though citizens were exempted for a short time during the republic[15]. Sir Henry Maine supports
this notion, stating that the “ 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” [16]
To keep the law and
order in society, the State should punish the violators. The volume and
severity of the penalty were mostly based on the King because there was no
clear rule or regulation for such offences in the past. Modern views of
punishment evolved throughout time, and the state eventually accepted our
voluntary submission of our rights and authority to uphold law & order.
The most appropriate
punishment and most powerful deterrent for the worst offences is considered to
be the death sentence. Even those who disagree with it believe it to be cruel.
The morality of the death sentence is therefore questionable, and many criminologists
as well as socialists across the world have long called for its abolition.
THEORY OF PUNISHMENT
The objective of the
death sentence is in making the offender an instance and in discouraging other
like-inclined people. Out of the different theories of punishment, the
retributive and the deterrent theory offers a defence for the death penalty.
The retributive concept of jurisprudence emphasizes the death penalty
application for horrendous crimes. The theory is based on the principles- “An eye for an eye” and
“a tooth for a tooth”.
It contains incommensurate retribution, which is getting in exchange for an
unlawful act, not the same but it's equal. The deterrent theory of punishment
sets an illustration for the criminal. The notion operates on mainly 2
conditions- First, society gets rid of the criminal when he is executed as a
punishment. Second, it makes an impression on the general public, which helps
to prevent others from committing crimes by raising awareness of them[17]The concept also highlights
the necessity of the death sentence as a symbol of society's vehement rejection
of the crime. The modern sentencing policy reflects a combination of many or
all of these goals. Retribution, justice, deterrence, information, and
protection are now recognized to be the goals of penalties. The retributive
component is intended to reveal the public’s disgust for the offence and to penalize the criminal for
his wrong conduct. Significant legislation has placed increasing emphasis on
the idea of justice as a goal of punishment, but judicial opinion on this
particular goal is divided and rehabilitation rarely takes precedence over
deterrence, which means that both the penalty and the offence should receive
the same punishment.
India has been
reticent to abolish the death penalty and has even voted against the “United Nations
General Assembly” resolution in 2007 asking for a suspension of the death
sentence. Over 70% of the populace voted in favour of continuing to use the
death penalty as a form of retribution and discipline, demonstrating the
legitimacy of this course of action and the support of the general public for
its continuation. However, taking a human being's life is the most inhumane
act. Only those criminals who exhibit no remorse for their cruel behavior are
subject to the death penalty; doing so may serve as a warning to others about
the repercussions of such behavior and serve as a deterrent to anybody
considering engaging in such heinous behavior
The freedom of one
person's life cannot be sacrificed at the expense of another, or occasionally
numerous others, in society. Therefore, applying the death penalty to
terrorists, rapists, and serial killers who have no regard for human life, are
blinded by greed for power, and are duped by immoral reasons restores the
public's trust in the legal system. However, the judiciary must use caution
when applying this ruling and base its conclusions on impartial, well-informed
judgment.
THE MAOA GENE:
In short, The MAOA
is a mitochondrial enzyme that catabolizes catecholamine neurotransmitters such
as dopamine, serotonin, and norepinephrine[18].
It has become clear that the “MAOA gene”, which is
found on the “X chromosome”, is a
significant hereditary determinant in relation to mental illness and aggressive
behavior in people. It is associated with various psychological disorders such
as depression, antisocial behaviour, and aggression.
In the case of
Mobley vs State[19] 1994, The finding of a
criminal gene in a Dutch family served as the foundation for the defence.
Although the family was huge and dispersed throughout several Dutch provinces,
they engaged in the same issue 35 times. Many of the males were hostile and
prone to violent impulsive crimes like rape and wildfire. Han Brunner, a
geneticist at the Institute of Genetics in Nijmegen, was contacted by the
ladies in the family who were desperate to learn how to halt the peculiarity
that was strangely passed on by women and exhibited exclusively in men.
he biopsychological
makeup of a criminal is significantly influenced by genetics. Low MAOA
criminals are more likely to exhibit aggression as newborns and violence as adolescents.
People with low MAOA
are more violent than those with high MAOA. Subjects processing the gene have a
greater risk of being among other offenders. This feature is present for the
most part in men with low MAOA since they are at a greater risk of displaying
criminal behaviour. It has been found that both genes and the environment
affect criminal behaviour. The social environment also affects criminal
behaviour[20].
When
criminals with such genes are not eliminated from society. This puts the lives of
innocent people in danger. These criminals cannot change their natures and
reform themselves. The death penalty is very beneficial to society since it
will increase the public's and innocent people's confidence who would otherwise
be terrified to leave their homes. Therefore, the majority prefers capital
punishment because it makes more people happy and secure. When such an offender
is punished for his heinous crimes, it implies that they would not be able to
re-offend after being freed from prison, which is rather common, and if they
are not to be released, there is little probability of their escaping.
CONCLUSION
In conclusion, it is
pertinent to acknowledge that though there are reports and arguments against
the retention of capital punishment. The death penalty is justified to a large
extent When an offender commits a capital crime, the offender must receive a
discipline that's commensurable to the crime[21].
The claim that capital punishment is an inhumane system is- incorrect because
torture is avoided and the death penalty is delivered compassionately in
current times. Inhibiting future offenders from committing capital crimes
through the use of the death penalty increases public safety. Some claim that
the death penalty hasn't reduced crime rates. Nevertheless, the fact that it
exists makes a nation's criminal justice system look more severe, which
discourages future offenders. By delivering this ultimate form of punishment,
it sends a message to those who consider committing similar or other serious crimes
that the consequences could be grave. The death penalty serves as a form of
justice, prioritizing the needs of the victim and granting them the recognition
they deserve for their pain and suffering. By holding perpetrators of serious
crimes accountable. It sends a clear message that such actions are unacceptable
and will be appropriately punished. Moreover, the death penalty acts as an
ethical and effective means of ensuring justice for victims, safeguarding
society from future offenses, and potentially deterring potential criminals. To sum up, I feel that the death penalty is
ethically correct as it helps society extensively, is administered
compassionately, and is the only penalty that's commensurable to the offences
REFERENCES
§
Hoyle, C., Lehrfreund, S. Contradictions in
Judicial Support for Capital Punishment in India and Bangladesh: Utilitarian
Rationales. Asian J Criminol 15, 141–161 (2020).
§
International Journal of Pure and Applied
Mathematics Volume 120 No. 5 2018, 911-922
§
Nature (MAOA) and Nurture in a Criminal by
Julian Highsmith, Mark Mercado, Jose Hernandez, & Susana Madrigal - UC
Merced Undergraduate Research Journal
[1]
https://deathpenaltyinfo.org/curriculum/high-school/about-the-death-penalty/history-of-the-death-penalty
[2] International
Journal of Pure and Applied Mathematics Volume 120 No. 5 2018, 911-922
[3] Op.cit. Capital
Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
[12] “Mahapatro, S.
(2013). Rarest of Rare doctrine and Concept of Social Engineering. Journal of
international academic research for multidisciplinary - A global society for
Multidisciplinary research. Volume 1. Issue 5. ISSN: 2320 5083”.
[14] Op.cit. Capital
Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
[15]
https://www.britannica.com/topic/capital-punishment
[16] Op.cit. Capital
Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
[18] “Buckholtz, J. W.,
and Meyer-Lindenberg, A. (2008). MAOA and the neurogenetic architecture of
human aggression.
Trends Neurosci. 31, 120–129. doi:
10.1016/j.tins.2007.12.006”.
[20] Nature (MAOA) and
Nurture in a Criminal by Julian Highsmith, Mark Mercado, Jose Hernandez, &
Susana Madrigal - UC Merced Undergraduate Research Journal”.
[21] In Jagmohan Singh
v. State of Uttar Pradesh (1973), Rajendra Prasad v. State of Uttar Pradesh
(1979), Bachan Singh v State of Punjab (1980)
Article Information
A STUDY ON CONSTITUTIONALITY OF THE CAPITAL PUNISHMENT
Authors: ASMA ASHRAF
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/28
- Issue 7
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International Journal for Legal Research and Analysis
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