Open Access Research Article
CAPITAL PUNISHMENT IN INDIA: THE CONUNDRUM
Published Paper
Article Details
CAPITAL PUNISHMENT IN INDIA: THE
CONUNDRUM
AUTHORED BY - PRATYUSHA GHOSH
JINDAL GLOBAL LAW SCHOOL
Abstract
Capital punishment also known as
death penalty is the most severe form of punishment. It is the execution of a
person sentenced to death by a court of law for a criminal offence. Capital
punishment is a controversial issue that has divided people into two parts. One
believing that it is good as it showcases in the ideal of an eye for an eye and
reflects on how severe the crime is and the latter part believing that it is
against human rights and barbaric. No matter which side a person chooses, there
is no denying that it has had severe moral, emotional and societal implications
that has diversifying effect on humanity.
History
As newfound as it sounds has been
around since the eighteenth-century B.C in the code of King Hammurabi of
Babylon. In India, the earliest mentions of death penalty are codified in a
book called “Arthashastra” which is a book about statecraft and the science of
wishful living by Kautilya. The first modern day example of death penalty was
the trial of Nand Kumar where he was hanged under the charges of forgery in
1774 under the rule of the British. This led to a lot of deliberation through
the years before it was eventually included in the Indian Penal Court in 1860.
The court allows for each penalty in
incidents of murder under IPC Section 302, terrorism as specified in the
Unlawful Activities (Prevention) Act, Rape under IPC Section 376 A to name a
few.
India’s stand on capital punishment
India has evolved a lot when it comes
to death penalty. In the current times, the country allows death penalty by
hanging for crimes like rape, murder and terrorism. Governed by the Indian
Penal Court, there are codified offenses and punishments which according to me
is a great move as it keeps a check on the judiciary, protects from giving
biased judgements and also safeguards the interest of the people on trial. The
Indian Constitution in 1950 established the right to life and liberty, which
was taken to indicate that the death sentence may be enforced only in
exceptional situations. The Indian Supreme Court determined in 1973 that the
death sentence should be used only in the "rarest of rare"
circumstances. India now has extreme regulations when it comes to the usage if
death penalty and have a lot of inspections. The death penalty is a complicated
and contentious subject in India. While the death penalty is still used in
India for certain crimes, there is a growing movement to abolish it and the
argument in India over the use of the death sentence is likely to last for many
years.
I am torn between whether I support or oppose
capital punishment. To help grasp it better, I'll go over my arguments in
depth.
Capital punishment: the good
According to me, one of the reasons
for believing in the goodness of capital punishment is that it provides deterrence.
The fear of the death sentence if instilled in one can deter potential
offenders from committing crimes, lowering the crime rate. Fair justice is also
a reason to why capital punishment should be propagated and flowed. It provides
justice and closure to the family and loved ones of the victim. If the crime is
so heinous like murder or rape that results in the victim losing their life or
are so mentally scarred that they are unable to function normally, it is only
fair to provide the same treatment to the offender. The cost of keeping a
prisoner on death penalty is too high and with the blooming population, we can
also witness an increase in the crime rate of the country. The judiciary is
also underequipped to provide justice to so many people with 4.3 crore out of 5
crore cases pending which is more than 85 percent of the total cases and it
also results in delayed justice. There are numerous cases where victims die
without getting justice and I think death penalty could to some extent save the
process of going to court, attending more hearings and so on to save the
court’s time so they can focus on more important cases.
Capital punishment: the bad
The view against capital punishment
could be because of the irreparable violation to human rights. It is cruel and
as said by Nietzsche, “There is a certain right by which we many deprive a man
of life, but none by which we may deprive him of death; this is mere cruelty.”
Treating cruelty with cruelty in turn doesn’t help in most cases and taking a
person’s life is not only cruel but also inhumane. The death sentence is
irrevocable, and there have been cases of false convictions in the past. The
possibility of killing an innocent person cannot be totally excluded, and such
an error would be a serious miscarriage of justice. Politics can play a huge
role in swaying the judiciary and it is one of the reasons why all judgement
cannot always be considered fair. India only allows capital punishment by
hanging but there is a lot of time and money spent on the hearings which can be
used for better reformative methods. Capital punishment often sends this
message across that violence is the solution to everything and this in turn
affects the society as whole that might turn to violence.
Social implication
Capital punishment is said to have
varying social implications. When a heinous crime like rape occurs, it shakes
the society as a whole which is followed by public and media outrage. It is one
of those times when a huge chunk of the society irrespective of their religion
and social standing come together to unanimously to protest against the crime. In times like these when the mass is
fuelled by emotion, capital punishment is often used like a two pronged sword,
one to use the punishment to provide justice to the family which showcases the
smooth and righteous functioning of the judiciary and police system in India
and two, to mobilize the masses to their political advantage. Like during the
Nirbhaya gang rape case, the fast track court found all the six men guilty of the
brutal rape and murder of the 23 year old woman, Nirbhaya. Five of the accused
were sentenced to death in 2013, one year after the incident and one of them
was let go due to him being a juvenile at the time of the crime. The main
question that occurs is if a juvenile in his right mind could commit a crime so
serious then why is the punishment met out to him not the same as his allies.
This debate questioned the scope of the jurisdiction of the capital punishment.
According to me, the three years in the reformation and rehabilitation centre
was necessary but the court should not have let the accused go without any
punishment. A worthy punishment would be getting a death penalty as he had
equal criminal responsibility. On the contrary, the use of the death penalty
raises further worries regarding the likelihood of false convictions. The
effects of a death sentence for an innocent person are terrible, not just for
the individual, but also for the larger community. The possibility of error
serves as a reminder that the implementation of the death sentence necessitates
considerable prudence and stringent measures to prevent blunders. Finally, the
social implications of capital punishment serve as a reminder that the
decisions we make as a society have real-world consequences. Approaching this
issue with compassion, understanding, and a strong commitment to justice and
human rights is critical.
Political implications
Capital punishment has major
significance in the political arena and its affects can be seen in the
government, politicians and the judicial system. The use of capital punishment
is often seen as a power move to assert dominance in terms of maintaining law
and order, no toleration for the guilty and providing justice to the victim.
Following the Mumbai terrorist attacks of 26/11, the government's decision to impose the death
penalty was widely interpreted as a reflection of its determination to combat
crime and terrorism. However, I feel with the involvement of politics in the
scenario, the government uses it as an instrument to appease the public
sentiment and not fight the root cause of the crime. The use of death penalty
has been associated with political factors like caste, religion and regional
identity in India. There have been controversial cases like Dhananjoy
Chatterjee vs. state of West Bengal where there has been widespread speculation
about the case. There have been serious speculations about the fairness of the
case during the whole trial process, forceful confession of the crime of the
murder and rape of a school girl and judgement because he belonged from the
marginalized community of West Bengal. Capital punishment has now become a
vital political agenda for may political parties in India. Shashi Tharoor, a
prominent member of the parliament from the Indian National Congress has spoken
against the practice of capital punishment. He has called it an ineffective
form of punishment which is equally barbaric and does not fight the root cause
of the crime caused.
International implications
India’s involvement in capital
punishment has often landed it in trouble. India is signatories to
international human rights forums that call for the abolishment of capital
punishment but on the other hand, India has legalized capital punishment. India
has to face scrutiny from United Nations Human Rights Committee and the
European Union for its practices but it continues to hold a diplomatic stand
about the topic. The use of the death penalty in India has also had an impact
on its relations with other countries. In various situations, the
implementation of the death sentence has strained diplomatic ties and generated
tensions with nations that oppose the death penalty, leading to appeals for
clemency and worldwide campaigns against executions of individuals who
according to the international powers should not have received the punishment.
How to make it better?
I feel capital punishment lies in a
morally grey area just like the way things are not always white and black,
capital punishment is neither good or bad. India’s stance on capital punishment
seems reasonable to me but there are multiple ways to make it better. One being
carrying out proper investigation without the involvement of any external
factors like biased police or judiciary. This will ensure that no innocent is
convicted and the accused is guilty beyond reasonable doubt which includes
having concrete evidence like forensic reports and substantial DNA. As per the
new amendment, minors from the age of 16 to 18 can be tried as an adult for
heinous crimes. I think it is very good amendment as it attacks the criminal
capacity of an individual irrespective of their age to a reasonable extent.
Awareness on the said crimes and is impact on society should be spread and
propagated so people are aware of the adverse effects it has on the victim and
the punishment given to the perpetrators of the crime. Counselling should also
be provided to petty criminals or people with a “criminal mindset” with
anonymity but frequent checks should be made on them. Adequate legal
representation should be given to everyone which according to me is lacking and
necessary steps should be made for the same. More humane methods of death
penalty should be used like lethal injection like in The United States Of
America rather than pain inducing methods like hanging.
Conclusion
To summarise, capital punishment in
India is a highly debatable topic with far fledged social, political,
international and social implications. While it does sever as a deterrent to a
crime, it is also important to consider the possibility of wrongful convictions
and the impact it has on the victim and the society. It is on the judiciary and
government of the country to make amendments but it is important to have an
open debate on it as it opens the scope of exploring the topic through a
completely new lens. No matter what advances are made in the future, the topic
should be dealt with extreme care and attention ensuring that the process is
just and unbiased and the punishment given is justifiable to the crime.
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Article Information
CAPITAL PUNISHMENT IN INDIA: THE CONUNDRUM
Authors: PRATYUSHA GHOSH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/29
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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