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Capital Punishment: when and why it can be justified- BY Riddhi Rahi and Shreya Mittal

law journal in India ,Best law journal in India
Introduction India is a developing country they say, but how developed are we with 12th in the ranking of the highest crime rated countries internationally? The crime rate is so high in India calls for attention to the laws and punishments of the nation. There are two main reasons for imposing the punishment, one is the wrongdoer should suffer and another one is imposing punishment on wrongdoers would in long run discourage others from doing wrong. There are 6 types of punishments: Death, Imprisonment for Life, Penal Servitude, Imprisonment, Forfeiture of Property, and fine(compensation).In this research, we shall specifically lay emphasis upon capital punishment, also, in legal definition referred to as the death penalty in this study. The term capital punishment comes from the Latin word “capitalism” which means “regarding the head”. Capital punishment is a process through which a person is sentenced to death after conviction/trial by the court of law for a criminal offense. Capital punishment is awarded for the most heinous crimes against humanity i.e. murder, robbery with murder, abetting mutiny, waging war against the government, etc. although article 21 of the Indian constitution says “No person shall be deprived of his life or personal liberty except as according to the procedure established by law”. The IPC provides the death penalty as an exception to Art.21 The main aim of this study:
  1. To study capital punishment in India.
  2. To study the criminological approach of capital punishment.
  3. To analyze the pros and cons of capital punishment
  4. To study how far this approach is justified in punishing the wrongdoers and whether or not should it be banned
  Capital punishment in India Crimes punishable by death in India include aggravated murder, other offenses resulting in death, terrorism-related crimes resulting in death, terrorism-related cases not resulting in death, rape not resulting in death, kidnapping not resulting in death, drug trafficking not resulting in death, treason, espionage and military offenses not resulting in death. Currently, there are around 403 prisoners on death row in India. Since 1995 there have been 22 capital punishments that have actually taken place. The most recent executions in India took place in March 2020, when the four men accused of gang rape and murder of a young woman in Delhi in December 2012 were hanged in the Tihar Prison Complex in Delhi. In the landmark judgment of Bachan Singh v. State of Punjab[1], the Supreme Court held the “rarest of rare doctrines”. The Appellant in a Criminal Appeal was convicted for the murders of Desa Singh, Durga Bai, and Veeran Bai and sentenced to death under Section 302, Indian Penal Code by the Sessions Judge. The High Court confirmed his death sentence given by the sessions judge and dismissed his appeal. Bachan Singh, the appellant by Special Leave to Appeal came up for hearing before the Supreme Court to raise the consideration before the court that whether the facts of his case were “special reasons” for awarding him the death sentence as required in Section 354(3) of CrPC, 1973. The issue raised was whether the death penalty provided for murder in Section 302 of the Indian Penal Code is unconstitutional? The Supreme Court held that Article 19 clauses (2) to (6) have been expressly made subject to the power of the State to impose reasonable restrictions on the exercise of the rights of citizens. For the people convicted for the offense of murder, life imprisonment was made a rule and death sentence an exception. With the majority of 4:1, the Court struck down Section 302 of the Indian Penal Code as unconstitutional and void. There are two methods of execution in India and they are:
  • Hanging
All the death penalties in India are carried out by hanging. Godse was the first person to be executed in India, after independence, by the death penalty in the case of Mahatma Gandhi.
  • Shooting
Under the 1950 Army Act, both hanging and shooting are listed in the military court-martial system as official methods of execution. The criminological approach of capital punishment There are two theories of capital punishment
  • Reformative theory
  • Preventive theory
  Reformative theory The main objective of this theory, as the word suggests, is to reform the criminal psyche. The criminal justice system of our country is based on the simple principle of Abhor the crime, not the criminal. They believe that an individual is not born a criminal but the environment makes them such and hence they as individuals can be reformed into better individuals. This theory focuses on reformation instead of deterrence. They simply abide by the notion “we must cure the criminal, not kill them.” This theory aims to correct the wrongdoers in a good manner so that they can lead a normal life like others. The critical analysis of the theory would be that it simply does not work. Researchers fail to provide us with effective methods of reformation and hence the theory fails to some extent. But one cannot overlook the noble concept of the reformation in toto. There have always been criminals who, over the period of imprisonment, or thereafter, have transformed themselves into skillful/educated people and have changed their lives for good. Preventive theory As we know “prevention is better than cure”, this theory stands completely opposite from the reformation theory. It says the offender should stay as far from society as much as possible for the very reason that he is a criminal and not meant to be in a civil society. They promote the concept of capital punishments and life imprisonment as a form of punishment. The main objective of the preventive theory is to take steps such that the offender never repeats the crime after he enjoys his punishment. And moreover, it creates a threat for future offenders and acts as a lesson to society. Glanville Williams says deterrence is the only ultimate object of punishment. The criticism of this theory is that researchers believe that imprisonment/any punishment would just be temporary in nature and one can never really destroy the actual motive of a criminal by fear factor and punishment would not deter the criminal but harden them. The ground situation can only be measured by looking at the actual crime rate. Retribution Theory Most of us are aware of the case of Priyadarshini Mattoo where a 25-year-old law student from Delhi was raped and murdered in her uncle’s house in the city. Santosh Kumar Singh – the convict was awarded a death sentence by the Delhi High Court which was then later stayed by the Supreme Court. In 2010, The Supreme Court converted the death sentence of the convict into life imprisonment. Now the question that arises is – Does converting life incarceration instead of the death penalty solve the purpose? Not as per the current scenarios in the country. Considering the post-conviction scenes of the Mattoo case, Santosh Singh barely spent four years behind the bars and was led out on parole in March 2011. Another parole was granted when he filed the application before the Delhi High Court while he returned to jail. The High Court granted him parole in March 2011. Another parole of another month was granted on March 6, 2012, and so on. Does this procedure solve the point of the criminal justice system in India? No. The crime done by the convict was considered so normal that he was led out on parole again and again while Priyadarshini Mattoo was failed by the lackadaisical approach of the judicial system of the country which made future rapists and criminals more carefree and less afraid of the law. What should have been done further lies in the retribution and deterrence theories of punishment where the main motive is “reap what you sow”. What these theories say is that punishment is a necessary consequence of a crime that the offender deserves and its severity should be calculated based on the gravity of the wrong done. The concept of deterrence has two key assumptions: Specific punishments imposed on offenders could totally prevent the offender from committing further crimes and also, the fear of punishment could prevent others from committing similar crimes. Had been the convicts of the Mattoo case hanged in front of the public, the other rapists would not have the courage enough to rape and murder others. Retribution theory – is considered one of the ancient and old theories of punishment. As the meaning of the word suggests – retribution – means the infliction of punishment on someone in response and in accordance with the crime committed by them. Under this theory, the punishment which is granted to the wrongdoer is equivalent or in proportion to the wrongs committed by him/her. The need for use of this theory was in the past as well and present era if we look at the crime rate and the gravity of the crimes committed. Retribution theory has a subtle motive with the intent to provide social justice by convicting the wrongdoer and setting an example for those who are thinking of doing anything with the same nature in the future. Having retribution theory as a punishment can be looked up to as an effective punishment for the rarest of rare crimes as well. But, it shall be noted that in the modern era this kind of punishment is not really supported much by the legal Scholars or practitioners and the key reason is that neither this is the kind of punishment which is considered wise nor it is desirable to punish a criminal with the same kind of punishment which is at par with the crime he has committed. Capital Punishment Pros Deters criminals from committing serious crimes One thing that most of us fear is the inevitable death. But capital punishment makes it sure that one will lose his/her life if they get capital punishment. The death penalty is the best deterrent when it comes to discouraging people from carrying out the worst crimes. Quick, painless, and humane The methods of execution of a criminal have gradually become more humane and justifiable over the years. Thus it is invalid to call the death penalty cruel and unusual. The legal system constantly evolves to maximize justice Just because it is feasible that a wrong decision could be made by the legal system doesn’t mean that the death penalty is wrong. Every effort is made in the US to give death row prisoners opportunities to challenge the court’s decisions. Modern methods of crime detection, such as DNA testing, also give greater certainty of guilt than existed in the past. Without the death penalty, some criminals would continue to commit crimes It stands as an example for those prisoners who are already serving in jail as well as for those who are about to commit a crime like that. The criminals in jail will be feared by the death of a person similar in nature to them. Cost-effective solution Although money is not a factor for anyone’s life or death, if considered, the death penalty is a cheaper solution than life imprisonment. The food, shelter, and other things seem costly for a person who has to live his whole life in prison than the one who has to die soon. Retribution is not the same as revenge Retribution is a necessary part of the punishment process—without it, the friends and family of the victims, as well as the public in general, would not feel that justice had been served. Crimes are increasing but what’s increasing drastically is the gravity and heinousness of those crimes these days. And if justice is not done or not seemed to be done then a time might come where people start rioting and criticizing the judicial system of the country. Thus, to maintain the trust and faith of people in the judiciary and the working of it, capital punishment has opted many times. Capital Punishment Cons No credible proof that the death penalty works as a deterrent In the US, in states where the death penalty has been abolished, there has been no significant change in the rates for serious criminal offenses, such as murder. It is considered as a cruel and unnecessary punishment, where basic standards and rights of human dignity are compromised or undermined. Continues the cycle of violence The cycle of violence continues as killing is considered illegal but indirectly the death penalty means killing. So if someone is being killed for killing someone else, then that’s considered vague and confusing. It is an old-fashioned and ignorant solution There are alternative solutions available to make someone realize and improve them. The death penalty is not the only solution to a crime. America’s image would be improved in places like Europe if the death penalty were abolished. The places where executions happen regularly include repressive regimes like Iran, Yemen, and Saudi Arabia. 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 be done undo. The person who is dead cant obviously be made alive again. The family loses him/her forever and there’s no going back. A life spent in prison is a worse punishment than an execution A life sentence prisoner has many years to endure their punishment, as well as experience remorse and reflect on his or her crimes. There are strong religious arguments against the death penalty Life is sacred and God-given. There are strong religious arguments against the death penalty. It is considered that taking someone’s life is going against nature and religious sentiments. Capital punishment should be abolished? The answer to this question is both yes and no. it’s complicated in the sense that it may vary from case to case to decide whether or not capital punishment should actually be abolished. Some [people say that killing a person who has already killed someone does not show that killing is wrong and therefore the death penalty makes no sense at all. Studies have also shown that the death penalty in actuality does not really mark a difference because deterrence is still not seen in the civil society and that life imprisonment would always be a better option instead of the death penalty. Between January 01, 2000, and June 31,2015 the supreme court of India has only imposed 60 death sentences out of which, it later admitted, that they caused an error in their judgments in 15 i.e. 25% of them. How can we trust this justice system when it punished those innocent people? Also, the court at many times has also shown signs of corruption in a way that is really disrespectful. By letting go of the heavy pocketed people and always punishing the ones who do not have capital has been the history of capital punishments as far as we can trace. The ones with private lawyers have always remained untouched. Capital punishment has always been challenged on three grounds that are:
  1. Arbitrariness
  2. Violation of human rights
  3. Irreversibility
  However, with changing times we can see the terror factor in most of the criminals as they realize how fast incidents like these can go viral on social media and other such platforms and how the fast-track courts have made it so convenient to get hold of these criminals and their wrongdoings. Therefore death penalties have caused not large but some percentage of difference on the psyche of other wrongdoers. Also, a lot of people believe that the right amount of justice can only be served with the same spoon that has caused the harm to the victim, meaning the equal proportion of justice shall be served when a severe punishment equal to the crime committed shall be served and only by theses severe punishments can a nation like India have the criminals changed by terror and no other remedy shall ever be able to replace the impact of capital punishment on their minds. Even when all the people believe that the death penalty is not a positive punishment they also admit that such punishment restricts the room for reform even before it is created. The immediate counter-argument to all the arguments in favor of the abolition of capital punishment is that the threat of death forces people to reform. So it might in the short run seem as if capital punishment isn’t really helping the judiciary to serve justice but where we see in a broader picture we do realize the importance and impact that it has created over the period of time. Our own grandfathers and fathers never felt as safe and protected as we do now. Because we know we can get our rights protected at all times and that the judicial system is here for our safety.   According to most of the lawyers, the Need of the hour is to focus on problems that have crippled the justice system such as poor investigation and prevention of crime. Mr. Shashi Tharoor, Member of Parliament, in an interview, makes an important statement: “It is important that we identify alternative forms of punishment and develop a suitable system for rehabilitating hardened criminals and ensuring that they reintegrate into society as responsible citizens. This, of course, puts a greater onus on the government and lawmakers. But let us not take the easy way out by silencing the criminal forever.” The Law Commission of India, in its 262nd report, recommends that the death penalty be abolished for all crimes other than terrorism-related offenses and waging war. People have always carried mixed opinions on the same issue. the majority however demands capital punishment be used more freely in India unaware of the consequences and process it carries with itself. on the other side, the people who have a slight knowledge of the actual legal system do not really support the concept of the death penalty and hope for a day when India joins the abolitionist nations and does away with the death penalty for the interest of the aggregate society.   Conclusion In India, capital punishment has been practiced since ancient times. many countries have abolished the practice of the death penalty over the years and have completely removed it from their punishment systems. In India the death penalty has not proved out to be very deterrent in doing away with offenses, the crime rates have increased over the years but so has the awareness. therefore the laws related to death punishment need a bit of reform, especially in India. There is a punishment worse than the death penalty. Make the offender continuous discussion about capital Punishment and the rigorous life in prison is worse than capital punishment. Each day and night the offender should feel for his offense. Capital punishment is not effective to reduce crimes in Society.   BIBLIOGRAPHY  
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