Abstract :
Capital punishment, also known as the “death penalty” or “death sentence,” is imposed for serious crimes which is one of the most debated ancient forms of punishment in almost every Society and given for crimes such as murder or multiple murders, rape, or any other crime for which a death penalty is provided by law. The fundamental justification for rewarding the death penalty is a retributive justice theory. This idea assumes that the individual whosoever has committed such a heinous crime must face the same fate. The death penalty is a form of capital punishment is given to have a deterrent effect on society, causing individuals to be afraid of the consequences the nature of the offence. The author of this research paper will discuss the constitutional validity of the death penalty as well as recent trends in the death penalty through various case laws and the opinions of eminent jurists and Hon’ble Judges, and will conclude with recommendations regarding the constitutional validity of the death penalty. Last but not least, the primary body or heart of this research, which is founded on the doctrine of rarest of rare occurrences, deals with a large number of examples in order to determine the study’s purpose. The analysis examined all of the jury’s judgments in the terrible case. Crimes were committed with the general public in mind, resulting in the conclusion that yes it is equitable and fair to impose the death penalty in the most exceptional of circumstances. The research confirms this despite the fact that the judiciary has the discretionary ability to impose capital sentence, as a result of public demand, so that people can live in peace.
KEY WORDS :- Capital Punishment, Death Sentence, Deterrent Effect, Constitutional Validity, Retributive Effect, Rarest of rare cases.
INTRODUCTION
For capital offences such as murder or multiple murders, rape, or any other crime where the death penalty is specified by law that is capital punishment, sometimes known as the “death penalty” or “death sentence,” is awarded. Because India is a democratic country that protects its citizens’ human rights, the discussion over capital punishment has heated up recently. While the Supreme Court (SC) in Bachan Singh v. State of Punjab[1] held that capital punishment must be sentenced in cases of brutal murder or the most heinous crimes where the doctrine of rarest of rare cases applies, how can a country that used to advocate for human rights award capital punishment when it is a violation of basic human rights? Many disputes took place around the world between jurists, attorneys, administrators, social activists, law commissions, and legal reformers to support or abolish capital penalty (Ahmed, 2002)[2]. In India, the death penalty is a powerful tool for putting a stop to egregious crimes against society. According to the deterrent effect of capital punishment, the fear of being sentenced to death prevents an offender from committing crimes.
The United Nations (UN) Assembly said In its International Scenario that there is a need for equitable justice in capital punishment around the world. The procedure to be followed must be fair, just, and reasonable (UN Charter, 1948) [3]. For example, the United Nations Economic Social Council (UNESCO). The main concept behind imposing a death penalty is as follows:
The basic idea behind death penalty is the theory of Retributive Justice which embarks upon that the person who has committed such a grave crime he must also suffer the same fate. The death penalty is given to create a deterrent effect so that the people fear the consequences of the offence. But India follows and believes in the theory of restorative justice where Justice is that the criminal, after being punished for the crime and serving the sentence, has the opportunity to atone for the harm he has caused to society, as well as to make the offender comprehend that the crime he has committed has resulted in injury to others to deter them from wreaking more harm to society. India is still practicing the idea of capital punishment even in rarest of rare cases while countries which follow UN guidelines (including India) and on the basis of UNs appeal 120 countries has abolished the capital punishment. So here the question arises why Indians are still practicing such methods of Justice. This is why this problem is important to address and and hence the knowledge of the fact that India follows and believes in the theory of restorative justice and still practicing the idea of capital punishment is necessary. Also UNESCO in its resolution no. 15 of 1996 encouraged its member to abolish \capital punishment and recommend those countries that use to provide capital punishment \should have a speedy and fair trial to accuse (UNESCO, 1996)[4]. Article 5 of Universal Declaration of Human Rights, 1948 provides that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 21 of the Indian Constitution guarantees citizens of the country the right to life and personal liberty, as well as the right to live and not die. No one shall be tortured or subjected to cruel, inhuman, or degrading treatment or punishment, according to Article 7 of the International Covenant on Civil and Political Rights, 1966[5].
The concept of capital punishment is a long-standing one that may be found in practically every culture. In ancient times, capital punishment was used to punish common offences against society. Human beings fought with each other in the beginning of human civilization for food, sex, and other reasons, causing harm to humanity through the practise of eye for an eye, tooth for a tooth, or blood for blood, which is a very early notion of law. The world gradually altered as society’s thinking and habits evolved. If a servant steals a trivial item, he or she is sentenced to death in England. There was such a severe attitude back then (Agrawal A. ,2000)[6].
RESEARCH METHODOLOGY
The apparatus for enforcing the death penalty Is far from perfect44. The most glaring systemic flaw in death penalty sentencing is judges’ unrestrained discretion. Despite the fact that the courts have established standards for imposing the death penalty, the manner in which these guidelines are applied is inconsistent.
The judges are completely responsible for enforcing the guidelines, which are subject to their personal preferences. As a result, similar cases would be considered differently, and convicts in similar situations would be treated differently. Aside from that, capital punishment carries the possibility of making mistakes. Death penalty is irreversible; executions are delayed inordinately, leaving criminals in prison. Executive prejudice in pardons and commutations; and languishing in prison.
Through news, novels, and interactions with friends and family, the researcher had gone over many incidents of lethal punishment found throughout history. She discovered that the punishment for minor infractions was exceedingly harsh in the ancient world. However, several countries have abolished the death sentence in the modern era. There were numerous reforms and revolutions. The death sentence has been abolished in a number of countries, including Australia, thanks to the efforts of its inhabitants. Mahatma Gandhi, who used to believe in and implement the ‘AHIMSA’ philosophy, once claimed that an eye for an eye would one day render the entire world blind (Krishnan and More, 1978).[7] In India, the death sentence is imposed based on the “rarest of rare” theory. The application of the “rarest of rare” theory, however, is left to the judges’ discretion, and so will not always be the same, even when the facts of the cases are similar[8]. In India, the current death penalty system has a high risk of developing in constitutional arbitrariness[9].
The current study examines the Constitutional courts’ sentencing policies from 2005 to the present. The sentencing phase of the trial is distinct from the conviction phase, and a variety of criteria, some of which may be irrelevant in determining the accused’s guilt, must be considered when choosing the proper sentence.[10]
Many arguments and studies have been conducted by various jurists, scholars, administrations, and legislators, but no one has adequately concluded whether capital penalty should be retained or abolished. According to Indian law, capital punishment was only applied in the most exceptional of circumstances, but this rationale has created a problem for today’s youth, as many individuals now advocate for human rights.
The following are the goals of research:
1. To investigate the meaning, scope, and principles of India’s rarest of rare crimes.
2. To determine that capital punishment is the only way to instil fear in the public’s mind, causing them to refrain from committing heinous crimes.
3. Determine whether the death penalty should be abolished in India as well, in accordance with international human rights standards.
In the rarest of cases, capital punishment is used.
Is Capital Punishment Just and Fair in the Most Extreme (rarest of rare) Cases?
The researcher began this investigation to determine whether capital punishment, which is only applied in the most extreme cases, is just, fair, and reasonable for the general public and humanity.
The research approach that has been adopted is qualitative, with the study project based on a comparison of different judicial rulings and analytical methods. Comparisons are made with regard to various landmark cases, as well as their verdicts and analytical methods, with the end result of the research. Because this will be the researcher’s first research, the inspiration for it came from a mentor.
Review of the Literature :
There are numerous books and articles about capital punishment. The purpose of the review was to look at what other scholars had done and to find out who had been overlooked so that, as a researcher, I could share my thoughts and results.
The concept of the most serious crime emerged during the drafting of Article 6 of the ICCPR, 1979[11] which guarantees the right to life. It has a wide interpretation and states that capital punishment should be reserved for the most serious crimes, but only a few states abolished capital punishment until 1954.
(ECOSOC, 1984), the death penalty should not expand beyond international crimes with deadly or other extreme consequences, according to the safeguard assuring protection of rights of people facing execution of the death penalty of 1984[12]. According to the United Nations Secretary General’s sixth report, an offence should be life-threatening in the sense that it is a likely result of action[13]. In 1986, 46 countries abolished the death sentence for non-violent offences.
The rate nearly doubled after 16 years. (Mahapatro, 2013) Roscoe Pound proposed a social engineering theory based on the notion of the rarest of rare cases. The goal of this theory is to achieve maximum enjoyment for society while simultaneously demonstrating justice in order to create an effective social system. It says to strike a balance between the interests of society, individuals, and the general public.[14]
(2010, International Commission Against the Death Penalty)[15] Between 1972 and 1976, capital punishment in the United States was suspended following a Supreme Court decision that deemed capital punishment unlawful in a number of cases. In April 2013, the death penalty was abolished in 18 states.
The US government was found to be forbidden from using cruel and unusual punishment in Rooper v. Simmons[16] . Agrawal, A (2000)[17] When it comes to capital punishment, there are two camps of thought: one that supports it and the other that wants it abolished. According to the International Commission Against the Death Sentence (ICDP), Argentina began the process of abolishing the death penalty in 1916 and under Mitre government in 1970. In 2008, it abolished capital punishment for both criminal and non-criminal offences. The death penalty was abolished for political offences in 1994. Cambodia, along with the Philippines, is one of two South Asian associations that have abolished capital punishment. It was the country with the longest duration of abolition. The death penalty was abolished in these countries in 1989 as a result of a constitutional amendment. In 1981, France abolished the death sentence for all crimes, joining the thirteen other European countries that had already done so. Kyrgyzstan abolished the death penalty for all crimes after amending its constitution in 2006. In 2005, Mexico abolished the death penalty for all crimes under the law. Between 1972 and 1976, capital punishment in the United States was suspended following a Supreme Court judgement declaring capital punishment unconstitutional in a number of cases. In April of 2013, eighteen states in the United States removed the death penalty. [18]Maharashtra Prisons Rule (Maharashtra Prisons Rule, 1971) The death penalty can be carried out in a variety of ways. In India, the most common method of capital punishment is hanging. A person who has been sentenced to death is referred to as a convict. When a convict is admitted to prison, he will inform the state government about the date of his execution and his entry into prison, and he will request an order from the state government for execution. When a mercy petition is denied, the state government will choose the date of execution of the death penalty and will notify the convict’s family member66. According to Bentham’s utility theory, removing a small number of criminals through capital punishment provides security and pleasure to the entire society. Garofalo and his sociologist tutor, Lombroso, are staunch supporters of the death penalty. The doctrine of “battle for survival,” which Darwin criticised, states that society can only be perpetuated if it can fend off antisocial forces. Mahatma Gandhi was the most prominent advocate for the abolition of the death penalty in India. He promoted nonviolence. “Hate sin but not sinner,” he pleaded (Krishnan and Moore, 1978[19]). From the perspectives of punishment theories Deterrent punishment refers to harsh sanctions that are designed to deter the offender from committing the offence again. The theory of deterrent punishment holds that by enforcing harsh sanctions, a person will fear criminal behaviour and hence refrain from it. As a result, the crime rate and behaviour will drop, and peace will reign in society. “A tooth for a tooth, and an eye for an eye,” according to retributive theory.
CONCLUSION AND SUGGESTIONS :
India’s preamble, which states, “We, the people of India, directly indicate it as a democratic country where the public at large dominates,” is a direct reference to the country’s democratic nature. Laws are designed for human beings so that they can live their lives in dignity while not infringing on the rights of others. When an accused commits a crime that affects the public or innocent victims, the state must punish him through law. The most severe kind of punishment in society is capital punishment. As a signatory to the Universal Declaration of Human Rights, our country has not abolished capital punishment, but it has limited its use by imposing it only in the most egregious situations. Is capital punishment just and fair in the rarest of cases, according to the research topic? Yes, it is reasonable based on the following criteria:
Despite the fact that India is a member of the United Nations and has signed and ratified the majority of international human rights instruments, capital punishment is nonetheless legal in India. It must be applied in unusual situations, according to our courts, i.e. in the rarest of rare cases with unique causes. India is a country with many different cultures and people, each with their own way of thinking and living. Crimes are not a contemporary phenomenon; they have existed from the beginning of time. Though death penalty was once applied to minor offences, the idea behind it was to protect the general people and instil terror in their thoughts so that they would refrain from committing crimes due to the threat of capital punishment.
The thinking of human beings changes with the passage of time. As Mahatma Gandhi used to say, “an eye for an eye will make everyone blind,” and “an eye for an eye will make everyone blind.” However, the conditions and circumstances of crime were not as harsh at the time as they are now in the modern world.
The Delhi Gang Rape, which has been dubbed the most savage case in history, brought the entire country together to demand justice for the girl Damini, as well as to defend the nation’s future. The judiciary was opened by this revolution, and the criminal law was altered as a result.
According to the deterrent principle, implementing harsh punishment will instill fear in criminals, resulting in a reduction in crime rates. Deterrence theory is a concept that exists in India. The scene of the rarest of rare case to award death penalty in India came from the Macchi Singh v. State of Punjab153 case, in which the accused was sentenced to death on the demand of the general public, and the Supreme Court laid down some principles to determine whether the act falls under the rarest of rare case or not. The judiciary has the power to decide whether someone should be sentenced to death or not, but only if the guidelines set forth in Macchi Singh Case154 are followed. Following that, in the Bacchan Singh Case155, the Supreme Court posed two questions to determine the gravity of the case, namely, how uncommon is the crime and do the circumstances of the crime reveal the cruelty of the case to warrant death penalty. Many of the cases discussed above in the section “Rarest of rare cases” are horrific, but they were not handed the death penalty since the only explanation cited by the judiciary was that the accused would not endanger the public at large. As a result, instead of the death penalty, they were sentenced to life in prison.
RECOMMENDATION:
Following the study, the researcher humbly submitted certain death penalty recommendations to the law commission, which were determined to be absent in the judiciary. These are the following:
- Appropriate legislation should be enacted: Many statues allow for the imposition of capital punishment. As it was discovered, there were several statutes in place for imposing the death sentence, but none of them specified the grounds on which such punishment should be imposed in the most egregious of cases, leaving jurists perplexed as to why the same punishment should be imposed on the guilty.
- There should be no age limit for receiving the death penalty: In our country, there is no law that allows the death penalty to be given to a juvenile, but if a juvenile commits a heinous crime such as rape, murder, or other crimes that fall into the category of the rarest of rare cases, it means that he had sufficient understanding of the act he was committing and, therefore, he should be given capital punishment.
- No pardon power for terrorists: Our Constitution gives the President and Governor pardon power, but if the accused is found to be a terrorist who has harmed the public at large, he should not be granted the right to appeal for a pardon.
- Death Penalty must not be imposed in a hasty manner: Before imposing the death penalty, the constitutional courts must thoroughly examine each and every aspect of the act by a panel of jurists, and the death penalty must not be imposed in a hasty manner.
Written By :-
Shalini Verma
VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES (VIPS),
GGSIP UNIVERSITY
[1] Bacchan Singh vs state of punjab AIR 1980 SC 653. http://www.indiankanoon.org
[2] Ahmed, I. G. (2002) Death sentence and criminal justice in human rights perspective, published in university of Calcutta. Pp. 1-4.
[3] International Scenario of United Nations Charter, 1948. http://www.un.org/en/documents/udhr/
[4] United Nations Economic and Social Council, 1996. http://www.un.org/esa…ecosocmainres.htm
[5] International Convenient on Civil and Political Rights, 1966. http://www.ohchr.org.
[6] Agrawal A(2000). Abolition or detention of death penalty in India – A critical appraisal Published in Gujarat National Law University (Gandhinagar), India.
[7] Krishnan R. And Moore 1978. A source book in Indian philosophy – A commentary on laws Manu, Central Law publication, Delhi.
[8] Swamy Shraddhananda vs state of karnataka (2008) 12 SCC 288.
[9] Santosh Kumar Satishbhushan Beriyar vs state of maharashtra (2009) 6 SCC 498.
[10] LETHAL LOTTERY : THE DEATH PENALTY IN INDIA (Amnesty International India for People’s Union and Civil Liberties (Tamil and Puducherry), 2008)
[11] International convenant on civil and political
[12] UN Economic and sicial council charter 1984, Resolution 1984/54
[13] Capital punishment and implementation of safeguard guaranteeing protection of rights of those who are facing death penalty http://www.uncjin.org/documents
[14] Mahaoatro S Doctrine of rarest of rare and concept of social engineering
[15] International commission against death penalty( 2010),how states abolish death panalty United States
[16] Rooper vs simons 543 US 551 (2005
[17] Agrawal A 2000 Abolition or retention
[18] DP and Karnataka MD(2012) Capital Punishment journal of sapre forensic science and law.
[19] Krishnan R Moore- 1978 – A source book in Indian philosophy – A commentary on Ahimsa, Central Law Publication. Pp-500-550.