Capital Punishment: pros and cons. When and why it can be justified?

Author :- Ayush Kumar Gupta

1. INTRODUCTION

India is a country which consists of large number of crimes and criminals. In India all punishments are based on the motive to give penalty for the wrongdoer. There are two main reasons for imposing the punishment, one is the wrongdoer should suffer and other one is imposing punishment on wrongdoers discourages other from doing wrong. In this paper I focused on capital punishment or death penalty. Capital Punishment is one of the important parts of Indian criminal justice system. Crimes result in death penalty is known as capital crimes or capital offences. The term capital punishment is derived from the Latin word “capitalis” means “regarding the head” Capital punishment is also known as the death penalty. Capital Punishment is a legal death penalty in India. India gives capital punishment for serious offences .In India capital punishment is awarded for most heinous and grievous offence. After the independent India has seen the hanging of 755 people until now. While in past three decade 16 convicts have been executed. Despite India’s stance on capital punishment the judiciary saves it for extreme violation of law. According to the article 21 of the Indian constitution, “no person shall be deprived of his life of personal liberty except according to procedure established by law. “Capital punishment has always been point of contention in the judiciary, not only in India but also in the most developed countries. . India voted against a United Nations General Assembly resolution calling for a prohibition on the death penalty . In November 2012, India again continues its posture on capital punishment by voting against the UN General Assembly draft resolution request to ban death penalty. Section 53 of the IPC deals with the kinds of punishment which can be inflicted on the offenders. They are as follow: Death penalty, life imprisonment etc. Thus generally speaking, IPC gives much sentencing discretion to the judicial officer.

2. CAPITAL PUNISHMENT IN INDIA

Capital punishment is an ancient sanction. There is practically no country in the world where the death penalty has never existed. Human civilization reveals that during no period of time capital punishment has been described as a mode of punishment. At independence, India retained several laws put in place by the British colonial government, which included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the Indian Penal Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be imposed under the law, including death.

For offences where the death penalty was an option, Section 367(5) of the Cr.P.C 1898 required courts to record reasons where the court decided not to impose a sentence of death:

If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.

In 1955, the Parliament repealed Section 367(5), Cr.P.C 1898, significantly altering the position of the death sentence. The death penalty was no longer the norm, and courts did not need special reasons for why they were not imposing the death penalty in cases where it was a prescribed punishment.

The Code of Criminal Procedure was re-enacted in 1973 (‘Cr.P.C’), and several changes were made, notably to Section 354(3):

When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence.

This was a significant modification from the situation following the 1955 amendment (where terms of imprisonment and the death penalty were equal possibilities in a capital case), and a reversal of the position under the 1898 law (where death sentence was the norm and reasons had to be recorded if any other punishment was imposed). Now, judges needed to provide special reasons for why they imposed the death sentence.

These amendments also introduced the possibility of a post-conviction hearing on sentence, including the death sentence, in Section 235(2), which states:

If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.[4]

3. TYPES OF CAPITAL PUNISHMENT

In this topic, I am going to discuss the various methods of punishments that are used in the different countries. But, before that let’s talk about the capital punishment that people used in the past. Earlier, the capital punishments are more like torture rather than a death penalty. They used to strain and punish the body of the culprit to the extreme that he/she dies because of the pain and fear of torture. Besides modern method are quicker and less painful than the traditional method.

1. Electrocution– In this method, the criminal is tied to a chair and a high voltage current that can kill a man easily is passed through the body. In addition, it causes organ failure (especially heart). As of 2015 , the only place in the world that still reserve the electric chair as an option for execution are U.S. States of Alabama, Florida etc.

2. Tranquilization– This method gives the person a slow but painless death as the toxin injections are injected into his body that takes up to several hours for the criminal to die.

3. Beheading– Generally, the Arab and Gulf countries use this method. Where they decide the death sentence by the crime of the person. Furthermore, in this method, they simply cut the person’s head apart from the body.

4. Stoning– In this the criminal is beaten till death. Also, it is the most painful method of execution. UAE, Iraq, Qatar, Saudi Arabia, Somalia, Sudan etc. These country follow this as a capital punishment

5. Shooting– The criminal is either shoot in the head or in his/her chest in this method. Myanmar use this as a capital punishment

3.6 Hanging– This method simply involves the hanging of culprit till death. India, Iran, Iraq, Japan, Malaysia, Pakistan, UAE, Sudan, Myanmar, Sri Lanka etc. These county used this as a capital punishment.

4. 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 v. State of Uttar Pradesh (1973), then in Rajendra Prasad v. State of Uttar Pradesh (1979), and finally in Bacchan Singh v. 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

4.1 Criteria for Rarest of Rare

The principles as to what would constitute the “rarest of rare” have been laid down by the top Court in the landmark judgment in Bacchan Singh v. State of Punjab. Supreme Court formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely upon the court’s discretion to reach this conclusion. However, the apex court also laid down the principle of weighing, aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded.

In the case of Dhananjoy Chaterjee v. State of West Bengal he was accused of raping and then murdering a 14 year old girl, Hetal Parekh. He work as a security guard. The victim lived in the same apartment that Dhananjoy was guarding. According to the official verdict, it was proved that he raped the girl and then choked her to death. The judiciary declared the crime as “rarest of rare” because the guard was responsible for the protection of the society and the people living in it. The accused was scheduled to hang on June 25, 2004 but his family filed a mercy plea, which was rejected by the then President of India, A.P.J. Abdul Kalam. He was finally hanged on his 39th birthday in Alipore Central Jail in Kolkata.

In the case of Mohammad Ajmal Amir Kasab v. State of Maharashtra Ajmal Kasab was a part of the group that was responsible for the infamous 26/11 attacks in Mumbai. This case was closely followed by the media of our country which was probably the reason why case was expedited. An 11,000 page charge sheet was filed against Kasab which made a strong case against him. He kept changing his statement from time to time and moved up to the Supreme Court pleading for mercy. President Pranab Mukherjee upheld the judgement of capital punishment on the November 5, 2012 and he was hanged to death on November 21, 2012.

In the case of Afzal Guru. He was accused of being the master mind behind the attacks on the parliament on December 13, 2001. Five armed terrorists attacked the Indian Parliament which led to the death of 8 security personnel and a gardener. A media person was also shot amidst the attack and succumbed to the injuries later. The case was handed to a special cell of Delhi Police, which was able to track and arrest Afzal by December 15, 2001. He pleaded guilty in front of the media but took back his statement later claiming that he did it due to the pressure induced by the police. A special court was formed under the Prevention of Terrorism Act which finally sentenced him to death on December 18, 2002. Due to various pleads and protests the case went on till February 6, 2013, when his plea was rejected by the President Pranab Mukherjee. His execution was a carried out as a secret mission on February 9, 2013.

5. Pros and cons of capital punishment

A. Pros of capital punishment

• It deters criminals from committing serious crimes. Common sense tells us that the most frightening thing for a human being is to lose their life; therefore the death penalty is the best deterrent when it comes to discouraging people from carrying out the worst crimes.
• It stops the threat of an escape that alternative sentences would create. The fastest way to stop a murderer from continuing to kill people is to eliminate their ability to do so. That is what capital punishment does. The death penalty makes it impossible for someone convicted of murder to find ways that kill other people. Failing to execute someone who is taking a life unjustly, who that is able to kill someone else, puts all of us into a place of responsibility for that action. Although there are issues from a moral standpoint about taking any life, we must remember that the convicted criminal made the decision to violate the law in the first place, knowing full well what their potential outcome would be.
• Without the death penalty, some criminals would continue to commit crimes. It deters prisoners who are already serving life sentences in jail from committing more serious offenses.

6. Cons of capital punishment

• It is a cruel and unusual punishment, where basic standards of human dignity are compromised or undermined.
• It continues the cycle of violence. Retribution is just another word for revenge, it is essentially just a form of the flawed thinking that two wrongs can make a right. The pro argument is that killing people is wrong, therefore you should kill people for killing, which makes no sense
• The justice system is bound to make mistakes. In the case of people who are wrongly imprisoned, they can be released from prison and given compensation, but a wrongful execution can never righted

7. Relevant legal provisions of capital offences

• Capital offences of IPC

1. Section 121- Treason, for waging war against the Government of India

2. Section 132- Abetment of mutiny actually committed

3. Section 194 -Perjury resulting in the conviction and death of an innocent person

4. Section 195A- Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person

5. Section 302 – Murder

6. Section 305 – Abetment of a suicide by a minor, insane person or intoxicated person

7. Section 307 (2) – Attempted murder by a serving life convict

8. Section 364A -Kidnapping for ransom

9. Section 376A- Rape and injury which causes death or leaves the woman in a persistent vegetative state

10. Section 376E- certain repeat offenders in the context of rape

11. Section 396 – Dacoity with murder

• Capital Offences in other laws in India

1. Sections 34, 37, and 38(1) – The Air Force Act, 1950

2. Section 3(1) (i) – The Andhra Pradesh Control of Organised Crime Act, 2001

3. Section 27(3) – The Arms Act, 1959 (repealed)

4. Sections 34, 37, and 38(1) – The Army Act, 1950

5. Sections 21, 24, 25(1) (a), and 55- The Assam Rifles Act, 2006

6. Section 65A (2) – The Bombay Prohibition (Gujarat Amendment) Act, 2009

7. Sections 14, 17, 18(1) (a), and 46- The Border Security Force Act, 1968

8. Sections 17 and 49- The Coast Guard Act, 1978

9. Section 4(1) – The Commission of Sati (Prevention) Act, 1987

10. Section 5- The Defence of India Act, 1971

11. Section 3- The Geneva Conventions Act, 1960

12. Section 3 (b) – The Explosive Substances Act, 1908

13. Sections 16, 19, 20(1) (a), and 49- The Indo-Tibetan Border Police Force Act, 1992

14. Section 3(1) (i) – The Karnataka Control of Organised Crime Act, 2000

15. Section 3(1) (i) – The Maharashtra Control of Organised Crime Act, 1999

16. Section 31A (1) – The Narcotics Drugs and Psychotropic Substances Act, 1985

17. Sections 34, 35, 36, 37, 38, 39, 43, 44, 49(2) (a), 56(2), and 59- The Navy Act, 1957

18. Section 15(4) – The Petroleum and Minerals Pipelines (Acquisition of rights of user in land) Act, 1962

19. Sections 16, 19, 20(1) (a), and 49- The Sashastra Seema Bal Act, 2007

20. Section 3(2) (i) – The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

21. Section 3(1) (i) – The Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002

22. Sections 10(b) (I) and Section 16(1) (a) – The Unlawful Activities Prevention Act, 1967

8. Conclusion

In India, capital punishment has been practiced since ancient times. Many countries abolished capital punishment. When we look at our national crime statistics death penalty has not proved to be deterrent for doing offence, the crimes rates are increasing only. Capital punishment is the harsh reality of our world. Without the death penalty, some criminals would continue to commit crimes. It deters prisoners who are already serving life sentences in jail from committing more serious offenses. Capital punishment is necessary in India because in today’s world the crime rate of rare of the rarest is increase, so if the capital punishment is not given to him then the fear will not create in the society and the crime rate will increase. To maintain peace in the society judiciary have to take some tough calls.