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CAPITAL PUNISHMENT: A QUESTION ON CONSTITUTIONALITY AND MORALITY
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CAPITAL PUNISHMENT: A QUESTION ON
CONSTITUTIONALITY AND MORALITY
Authored By - Shruti Ashri
ABSTRACT
Capital punishment i.e. Death penalty
is the most fearsome and gruesome form of punishment adopted from the
monarchial form of government. Inflicting pain and monetary loss on the people
convicted of a crime is an old traditional approach of punishment, Capital
punishment is also in the same arena. In modern society humans are capable of
innovating the things that old scientists have long dreamed of. Punishing a
person with the old and outdated approach i.e. Capital punishments seem odd.
There are pro-studies and antithesis on the very same subject matter either
challenging or supporting it with moral and legal grounds, this paper tends to
provide the wide scope of capital punishment along with the constitutionality
and morality of capital punishment.
KEY WORDS:
Death Penalty, Morality, Constitutionality, Punishment.
INTRODUCTION
Justice in its literal sense means
treating people in an impartial way, without any biases and sidelines. There
are punishments recognised in Bharat i.e. Death Penalty, Life imprisonment,
Simple imprisonment and rigorous imprisonment and fines. Capital Punishment
i.e. Death penalty means taking the person’s life by the procedure as per the
law consequences of his action. Capital punishment is not a modern concept, it
has been observed that the death penalty existed since time immemorial. It can
be said to be barbaric in many senses, it has also been observed that
inflicting the death penalty can discourage the crime. One more possibility is
that it may render irreversible injustice on an innocent person. Capital
punishment is a two way sword, it can either serve justice or can be a reason
for grave injustice. The question is, whether the death penalty renders justice
or causes grave injustice? The clarity of evidence shows that it neither acts
as a way of reducing crime by creating deterrence nor acts as an irreversible
injustice. Death penalty has become a topic of discussion, questioning the
constitutionality and morality of the death penalty.
CAPITAL PUNISHMENT
Death penalty i.e. capital punishment
is the execution of the criminal convicted for the offense falls under the
category of Rarest of the rare as given by Supreme court. The execution by the
state with the proper procedure established by the law. Capital punishment is
awarded to the criminals convicted for the most heinous crimes. In literal
sense, “Capital” means “Head”. Capital punishment is
considered to be the last resort in awarding punishment, the ultimate and
absolute punishment. Ending the life of a person for the reason of serving
justice and deterrence at the same time. Corporal punishment is the expression
used to describe the punishments of harsh nature, inflicted on the criminals of
heinous crime. In the modern era it is considered to be the most fearsome punishment
inflicted on the doomed in the living. In India, Death penalty is awarded in 2
ways, Hanging till death and Shooting.[1]
Though, Shooting is restricted only to armed forces, Hanging is the only way to
Impose death penalty on convicts. In this the convict is placed on a platform
with mechanized floor, with a movable pedestal. The platform opens and makes
the convict hang from the neck till the confirmation of death. It is one of the
most painful ways of execution. Countries like U.S.A, uses Drugs and toxins to
execute the convict in the least painful way. The practice of death penalty is
not just limited to India, Other countries also have the very same practice.
HISTORY OF CAPITAL PUNISHMENT
The history
of Capital Punishment revolves from the Ancient times moving to the colonial
period.
ANCIENT INDIA
Capital punishment was a
widely used method of punishment in ancient India. It was the worst type of
punishment, and there were several ways to administer it. Several of these
techniques included:
? Stoning: The
death penalty known as "stoning" involves a crowd of
people throwing stones at a victim till he dies. In it, the offender is forced
to stand in a little hole uncovered in the ground while he is surrounded by
people who stone him until he dies.
? Pillory: The
culprit in 'Pillory' was forced to stand in a public area while his hands and
head were imprisoned in an iron frame, preventing him from moving. Then he
would be stoned, beaten, or have his ears tied to the pillory's support beams.
Dangerous offenders were occasionally tied to the walls before being shot or
stoned to death. Unquestionably, it was a very harsh and terrible method of
punishment that persisted into the 19th century.
? Immurement: The
culprit in this crime was built into a wall. It was the most inhumane, brutal,
and agonizing method of carrying out the death penalty.
? Execution by elephant: In this kind of punishment, the criminal was dumped beneath
the weight of a drunk elephant, who then crushed him or her to death.
WITCH TRIALS
Due to the word's
negative meaning, those who practice witchcraft are disregarded by society and
treated with suspicion. Witch hunting, on the other hand, is an odd practise in
which women accused of having negative influences are labelled as witches by
Ojhas (witch doctors/tantriks) or locals and are then pursued, exiled, flogged,
raped, paraded through the village naked, made to eat human excrement, balded,
thrashed, etc. Numerous names have been used to refer to the women suspected of
being witches, including dayan, tonahi, beta khauki (son eater), adam khauki
(man eater), bhaikhauki (brothereater), maradmuhi, kheldi (characterless),
bisahin (poisonous lady), bhootni, Dakan, etc. Therefore, witch hunting
includes both verbal and physical assault.
In Assam,
Bihar, Chhattisgarh, Gujarat, Haryana, Jharkhand, Madhya Pradesh, Maharashtra,
Orissa, Rajasthan, Uttar Pradesh, and West Bengal, witch hunts are a usual
event.
Most often,
old ladies and widows who have been falsely accused of being witches do so
because of their physical characteristics, such as hunches, odd hairstyles, or
unusual skin tones. Even men have occasionally been falsely accused of
possessing magical abilities and forced to bear the penalties. The woman's
family and children also suffer since they are frequently kicked out of the
community and forced to leave the village, or in the worst cases, killed.
The only
punishment which the people thought to be valid was burning alive the person
being accused for such an act. This was also a kind of capital punishment which
was brutal in its own way and never being proved for the crime. It was only
based on assumptions and doubt.
COLONIAL INDIA
Seth Govind
Das posed many inquiries in the Legislative Assembly in 1946 about the
potential for India to do away with the death penalty. The debate included
official figures from 1925 to 1944, documenting death sentences handed down by
Sessions Courts, confirmations by High Courts, and then hangings. Statistics on
executions for the late nineteenth century were very scarce, but this
discussion provided numbers for that time period. One thing became obvious as a
result of the investigations: the hangman was active in late imperial India.
23,937 execution warrants issued by Sessions Courts were listed in the document.
Since every sentence needed to be confirmed in a High Court, this was the best
chance to get out of jail; at this point, 41% of sentences were modified or
acquitted. far slower pace than this increase in executions.
The only
remaining option for confirmed sentences was to request executive MERCY. 83% of
the cases that got to this level ended up at the bottom of the death penalty
after a somewhat challenging and time-limited legal process. This resulted in
11,539 executions in all, or 577 each year on average. From 346 hangings in
1925 to a peak of 789 in 1943, the number of hangings increased with time. Even
if there had been an increase in murders during this time, it had happened at a
much slower rate than this increase in executions.
CAPITAL PUNISHMENT IN MODERN ERA
The Death Penalty in India Report
states that 488 inmates were on death row by the end of 2021, the highest
number in 17 years.[2]
In 2021, trial courts handed down a
total of 144 death sentences, but only 39 cases were resolved by the High
Courts during that time, according to the study.
The Supreme Court resolved just 6
cases in 2021 compared to 11 in 2020 and 28 in 2019, despite identifying death
sentence cases as a priority in September of last year.
India killed four people found guilty
of the cruel sexual assault of a 22-year-old paramedical student in New Delhi
in 2012 in March 2020. The incident became known as the "Nirbhaya
case"[3] or
"16 December case" in honor of the day the crime occurred. The last
people to be executed in India were the four people accused in the Nirbhaya
case[4].
INTERNATIONAL RECOGNITION OF DEATH PENALTY
Death penalty is a global issue,
countries either developed or developing have the very same practice though
different means are there, some are painless and others are gruesome and
painful. Most countries argue against it as it is one of the most inhumane
practices which is being practiced under the ambit of law. It violated the
Human rights. The United Nations have a great role in protecting human rights and
making the policies for the nations signed, to adopt the ways of the United
nation. Principles of natural justice and fair trial are just some examples of
what the United Nation has made the world adopt. UNODC is against the practice
of the death penalty in every situation and circumstance. The reason for this
criticism is the possibility of irreversible injustice. Death penalty is the
only punishment recognized by the law to be irreversible in nature, If once
rendered on the convict there is no chance of fixing it.
? Article 5 of the Universal
Declaration of Human Rights 1948 provides the provision of non-cruel treatment
as a form of punishment.
? Article 7 of the International
Covenant on Civil and Political Rights (ICCPR) 1966 placed the bar on Inhuman
treatment and cruelty as a form of punishment.
Currently more that 70% of the
countries have abandoned the practice of capital punishment, developed
countries are primarily focusing on abandoning traditional inhuman approach and
abolishing capital punishment is one of
the key signs of their developed legal provisions.
Concept of “Police state and welfare”
state can also be linked with the practice of capital punishment, A state is
known by its development and by the development of its people.
? Police State
Police state is the concept in which
the maximum power is in the hands of law enforcement. This is not to maintain
order in the society but to create deterrence in the society and to regulate
the actions of the people. It is more of a state centric system in which the
state favors by suppressing the citizens, suppressing protests etc.
? Welfare state
Contrary to the police state, the
welfare state focuses on the overall development of the citizens of the state.
It's more of a public centric system in which the policies of the state favors
the society.
Its is to be believed that the
concept of a capital system is to protect and favor the interest of the state
or the government. Death penalty is the extreme form of punishment which tends
to end the life of the violator, in any scenario if once rendered wrongly there
is no way of changing it. This extreme form of irreversible punishment is
absolute.
CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT OR DEATH
PENALTY IN INDIA.
India is
one of the nations that has neither totally removed the death penalty provision
nor passed legislation outlining its legitimacy. The validity of the death
penalty has been contested on several occasions since the Indian Constitution
was established through Supreme Court petitions.
The death
penalty may be imposed on criminals for seven different offenses. These include
murder, dacoity coupled with murder, and assisting a child, minor, or
intoxicated person in committing suicide.
Since the
beginning of time, the death penalty has been a kind of punishment used to
execute offenders and punish the most dangerous crimes. The foundation of
Indian criminal law is a blend of reformative and deterrent views of
punishment. While the penalties must be applied to discourage future offenses,
they must also provide the possibility for reformation.[5]
The death
sentence has been the subject of a variety of opinions in India, with some
favoring its continuation and others calling for its abolition.
The right to life is
guaranteed by the Indian constitution to every individual, subject to its
deprivation through the legal process. The Abolitionists have contended that
the death penalty in its current form violates the citizen's right to life.
Many eminent lawyers have argued that it is against everyone's right to life
for the death sentence to remain in Indian criminal legislation. It is asserted
that these esteemed jurists are likely unaware of the fact that even the right
to life is not a given.
In addition, Article 14
of the Constitution stipulates that everyone is entitled to "equality
before the law and equal protection of the laws," which means that
discrimination against anybody is prohibited unless it is necessary to achieve
equality. In the Case of Bachan singh vs state of punjab[6]. Supreme court gave the doctrine of “Rarest
of the Rare case”[7]
ARGUMENTS IN FAVOR OF DEATH PENALTY
Those who advocate the
death sentence believe that it should be used to the most horrific and rarest
of crimes, such as Delhi Gang Rape Case where the demand for the accused's
execution was made.[8] On
the basis of their beliefs in religion, morality, and ethics, many who oppose
the death penalty say that it is cruel and immoral. It is also advocated that
it be changed to life in prison or any other alternative.
MORAL ARGUMENTS
The argument in favor
of the death sentence is that people who kill have violated their own right to
life by taking another person's life. Capital punishment critics contend that
by legalizing the precise act of murder that the law tries to outlaw, capital
punishment sends the wrong moral message. Furthermore, they contend that the
application of the death penalty for less serious offenses is morally wrong
since it is utterly excessive in comparison to the harm caused. Abolitionists
contend that the death penalty is inherently unjust, inhumane, and demeaning
and that it violates the convicted person's right to life.
PRACTICAL ARGUMENTS
There are disagreements
as to whether the death penalty can be carried out in a way that is consistent
with justice. Those who favor the death penalty think that rules and procedures
may be created to guarantee that only those who truly deserve to die be put to
death. Opponents contend that the past use of the death penalty demonstrates
that any attempt to select out particular crimes as deserving of the death
penalty would unavoidably be arbitrary and discriminatory.
They also list
additional circumstances that they believe make it impossible for the death
penalty to be imposed equitably, noting that the poor and members of ethnic and
religious minorities frequently lack access to competent legal counsel, which
feeds into racial prejudice. Finally, they contend that since death penalty
appeals take so long, persons who have been given the death penalty are
sometimes brutally forced to suffer extended periods of uncertainty about their
future.
ARGUMENTS AGAINST DEATH PENALTY
Death penalty is the
absolute form of irreversible punishment, if rendered wrongly it destroys the social structure along with legal
integrity of the legislature.[9] The
mindset of the lawmakers should always be considered before deciding the
punishments like death penalty or life imprisonment. The legislature placed the
provisions of death penalty and life imprisonment for totally different
reasons. Death penalty is awarded for the offenses of such a grave nature that
there is no chance of reformation, but why can’t it be converted to life
imprisonment?
Other than the cost
that will be inflicted on the state to keep the prisoner for the rest of his
life and chances of jail violence. Criminal activities can be condemned by
applying adaptive policies and making the facilities less vulnerable to crimes
and more towards atonement and reformation. Religiously speaking, Life and
death is in the hand of the GOD!
Constitutionally
speaking, Article 21 i.e. Right to Life and Personal Liberty grants the
fundamental right to every citizen and non citizen of the country to live
freely and no one can be detained or killed without the proper procedure of
law. If a person has committed the offense of such a kind that Death is the
only option of justice, then this is no justice but retribution or revenge.
MORAL ARGUMENTS
Law is there to serve
justice not revenge. In the modern era where the nations are capable of
detaining the prisoners in a more efficient way, the need for the death penalty
is not the same anymore. Killing a person either by the way of law or without
it is still killing, Justifying it under the umbrella of law is still killing.
Law is manmade and not universal, the value of life and death is universal.
CONCLUSION
Many nations have
abolished the death penalty or capital punishment on the grounds that it is
cruel and inhumane and violates the people' constitutional rights to life and
liberty. However, if a fair view is to be taken, it would be correct to state
that the death penalty, despite its brutality, is beneficial in decreasing
criminal acts and deterring criminals to some level.
The only thought present
in the minds while pouncing the capital punishment is to set an example to the
wrongdoers that if something of this sort happens the result would be the same.
In India, the Capital
Punishment and its execution is a harsh method owing to the fact that the more
the heinous crime committed the harsher it will be. In a country like ours
capital punishment is executed by hanging a person till death this leads to a
person.
Not questioning the
validity of capital punishment but the way of its execution can be altered. If
a heinous crime has been committed brutally in an inhuman way is it necessary
to punish the same with inhumanity.?
Treating the person
with the same brutality, with the same inhuman behavior is against humanity. By
doing this a theory of punishment which is retributive theory will prevail and
which is not the ultimate goal.
BIBLIOGRAPHY
1. Prof. N.V.
Paranjape, “Criminology & Penology”; (Allahabad, Central Law Publications,
Twelfth edition- Re print 2008), pp. 239, 245
2. S.N. Mishra, India
Penal Code, (Central Law Publications, Allahabad,9thedn., 2014)
3. K.N. Chandrasekhar
Pillai (ed.), R.V. Kelkar’s Criminal Procedure, (Eastern Book Company, Lucknow, 6th edn.,2014)
4. Batuk Lal, The Law
Of Evidence, (Central Law Agency, Allahabad, 21stedn., 2015).
5. https://www.assignmentpoint.com/arts/law/capital-punishment.html
6. https://en.wikipedia.org/wiki/capital-punishment
7. https://www.ijlmh.com/wp- content/uploads/Capital-Punishment-in-India-Is-it-Time-to-Outstrip-it.pdf
8. http://www.notable- quotes.com/d/death_penalty_quotes.html#:~
:text=But%20once%20a%20man%20is,beca use%20He%20alone%20gives%20it.
9.
https://docu.tips/documents/criminology- 5c15ca673766b
10.
http://en.wikipedia.org/wiki/Capital_punishment_debate
11.
http://en.wikipedia.org/wiki/Capital_punishment#Global_distribution
[1] Prof. N.V. Paranjape,
“Criminology & Penology”; (Allahabad, Central Law Publications, Twelfth
edition- Re print 2008), pp. 239, 245
[2] Amnesty International Report 'Death Sentences and
Executions, 2014' pp.64-65.
[3] Mukesh
v. State (NCT of Delhi), (2017) 6 SCC
[4] Mukesh
v. State (NCT of Delhi), (2017) 6 SCC
[5] Jagmohan Singh v. State of U. P, AIR 1973 SC 947 Cr.
LJ 3301973 SCC 162 .
[6] 1980 2 SCC 684(10), AIR
1980 SC 898
[7] Machhi singh vs state of punjab [1980] 2 SCR 864
[8] Lethal Lottery, The death penalty in India and
people’s Union for civil Liberties (2008).
[9] “S.R Muralivasan” & “S T. Manasaa”, Death penalty in India: an overview,
IJLSI| Volume 1, Issue 2 | ISSN: 2581-9453.
Article Information
CAPITAL PUNISHMENT: A QUESTION ON CONSTITUTIONALITY AND MORALITY
Authors: Shruti Ashri
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/17
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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