Abstract 1
Keywords 1
Introduction 1& 2
Pros and cons of capital punishment 2
Capital punishment in U.S.A. 3
Capital punishment in England 3
Capital punishment in Germany 3
Capital punishment in Australia 4
Capital punishment in Bulgaria 4
Capital punishment in India 4&5
Research methodology 5
Review of literature 5&6
Suggestion 6&7
Conclusion 8
ABSTRACT
This paper sheds light on the status of capital punishment, about its pros and cons. Also the paper examines and analyzes about laws regarding capital punishment in various countries i.e. U.S.A, U.K, Germany, Australia, Bulgaria and India as well. There are different views on capital punishment that whether it is justified or not? The paper mentions the two main theories concerning the death penalty viz., preventive theory and reformative theory. The objective of paper is to understand the concept of capital punishment and to analyze different landmark cases in India regarding capital punishment and also knowing the position in other countries.
Finally after analyzing each aspect the paper conclude when and why capital punishment can be justified.
KEY WORDS
Capital punishment, Rarest of rare, Reformative theory, Preventive theory, execution.
INTRODUCTION
Capital punishment also commonly known as death penalty is a practice of killing person as a punishment for a crime. Crimes that are punishable by death are known as capital crime[1]. Capital punishment is the highest penalty that can be given to the convict by the state for the capital crime (heinous crime). Since 1990 the debate is going on that whether capital punishment is justified or not.
As of 2022, 54 countries retain capital punishment, 108 countries have completely abolished it de jure for all crimes, 7 have abolished it for ordinary crimes, and 26 are abolitionist in practice[2]. Whenever the punishment is awarded to the convict for wrong doing, there are different theories on which the punishment is awarded.
Two of that theories are-
- Reformative theory- according to this theory crime is like a disease which cannot be cured by killing rather than curing it with the medicine with the aid of process of reformation[3].
- Preventive theory- it aims to prevent the crime like by inflicting death penalty or by confining convict in prison.
There are actually two reasons for inflicting the punishment:-
- The person who has committed the wrong which is prohibited by law must suffer for it.
- Inflicting punishment on the wrongdoer will set an example for the others that if they commit such wrong or crime they will also have to suffer the same.
Inflicting punishment creates the fear in the minds of the offender so that they think before committing crime. It has the psychological effect.
Pros and cons of capital punishment-
Pros- To avoid heinous crime in our society prevention is required. For horrific crime capital punishment is justified. This would help in preventing the crime. For heinous crime, the wrongdoer deserve capital punishment by doing this the rest of society will remain safe. Death penalty reduces the chance of illegal escape[4].
Cons-The death penalty is ultimate cruel and inhumane. Capital punishment is an irrevocable punishment. The risk of executing an innocent person can never be eliminated. There is no evidence that by inflicting death penalty the rate of crime reduced[5]. The process of death sentence is long and therefore the convicted prisoners undergo both physical as well as mental torture. This causes them to literally beg for death.
Capital punishment in U.S.A. – In the United Nations, capital punishment is legal penalty in 27 states and is abolished in 23 states[6].
Death sentence is rewarded in U.S.A. only in aggravated crimes like murder, murder involving rape, murder of on-duty police officer, drug offences, crime against state, etc.
According to Gallup survey[7] there is a sharp increase in the support of capital punishment between 1966 and 1994. But as of now there is decline in support of death penalty to 49% in 2016 as according to Pew research poll. The American Law Institute rejected the framework of capital punishment.
Capital punishment in England–The traditional form of punishment measurement applied in England. But it was not the form of death penalty. In 19th century hanging up was the punishment for many crimes. The British Royal Commission took consideration for the abolition of death penalty in 1949. The death penalty was banned in 1965 for 5 years. But since the last two decades, taking into account the increasing crime, the reintroduction of the death penalty has become necessary.
Capital punishment in Germany– At the time of the empire the legal position of the death penalty was inconsistent. Since 1871 the death penalty was imposed for murder and attempted murder of the emperor or ruler. As of now the constitution of Germany which came into effect on 23 May 1949, prohibits the Capital punishment. The ban is stated in article 102- capital punishment is abolished[8].
Capital punishment in Australia– capital punishment had been a part of the legal system of Australia since British settlement. During 19th century capital punishment was given in crimes like sheep stealing, forgery, sexual assaults, murder, etc.
Australia has abolished capital punishment in all the jurisdiction. Queensland abolished the death penalty in 1922, Tasmania in 1968, Commonwealth in 1973, Victoria did it in 1975, South Australia in 1976 and western Australia in 1984.
Capital punishment in Bulgaria– the death penalty was introduced in Bulgaria in 1896. In July 1990 the parliament imposed a suspension on the death penalty.
Capital punishment in Bulgaria was abolished on December 12, 1998.
Capital punishment in India– Murder is punishable with sentence under Section
302 of IPC it is applied in the rarest of rare cases[9].
Case laws : Ediga Annama vs. State of Andhra Pradesh, In this case the court laid out that
apart from looking into the circumstances of the crime the court should also look into the
condition of accused section 354 (3) was added to the code of criminal procedure 1973[10]. Rajendra Prasad vs. State of UP, In this case the apex court however stated that the question
of whether capital punishment should be abolished to retain was a question of the Legislature
and not for the Court to decide[11].
BachanSingh vs. State of Punjab- The category of ‘rarest of the rare’ is always evolving. The Nirbhaya case violated collective conscience and clearly was under the scope of this doctrine. However, this doctrine is quite arbitrary, subjective, and discriminatory[12].
RESEARCH METHODOLOGY– The research methodology used in this project is the non-empirical type of research. The sources from where the data has been collected are the secondary sources. The secondary sources are used for referring the case laws and collecting the material. Material is also collected from print and electronic media like various search engines and internet databases. From the collected material and the information, the researcher proposes to critically analyze the subject of the study and tries to achieve the core aspects of the study.
REVIEW OF LITERATURE –Death sentence is the law and the policy of rarest of the rare which is derived in Bachan Singh case law and Human right activities and NGOs are against the death punishment and the international convention on civil and political rights suggest countries move abolition of crime . It is very correct todefine that motive of the punishment ought to be abolish crime and not the criminal’s life,imprisonment is the rule and death sentence is an exception.
Some countries such as Britain and Germany are against the capital punishment they had abolished death sentence but India and America have retained death sentence and impose suggestion exceptional crime and special reasons. Death sentence is deprivation of one’s life which has been protected by article 21 of the constitution of India. The Supreme Court up held the constitutionality of death penalty awarded in the rarest of the rare case and for special offences and against the hardened criminals. Special reasons justifying death penalty and the rarest of the rare types of cases are yet to totally and exactly defines approximations give a special perspective as per the respectively of the concerned judges.
Mahatma Gandhi is the thrust of the reformative theory of punishment .One line “an eye for an eye will turn the whole world blind” it was an old jungle law criminals as inhuman this theory is slowing the nature of the modern society. Every saint has past and every sinner has a future. When a man commits a crime against society diabolical, coldblooded, pre-planned murder of one innocent person. Such person forfeits his rights to life.
There are many case laws that define that death penalty conversion to life imprisonment is adopted because rarest of rare is not defined to pronounce death penalty hence it option for life imprisonment.
Three social institutions the police- which gathers evidence machinery, the court- which adjudicates guilt and poses sentence, the executive- which thinks over mercy petition. Taking the view of present scenario of India few police officers in authorities may be corrupt, dishonest, and the evidence presented in the court by such police officer may be fabricated. The court considers evidence adjudicates the matter accordingly in many cases. Due to which there are high chances that either culprit may be acquitted or innocent may be executed.
John Lamperti had written in his book “Does Capital Punishment Deter Murder?[13]”. He writes capital punishment which does not conclude and contribute in lower rates homicide. The number of countries abolish death penalty are Britain (1973), Canada (1976), France(1981), Australia (1985), Italy (1994). It seems in India capital punishment must be abolished and the government must follow the example of the developed countries.
Kannabiran K.G.(2012) had written in his book the death penalty was itself a grave crime some countries had abolished death penalty in all crimes. India could not risk to abolish death penalty because the maintaining social peace will be hard and there would be problems of law and power. Unfortunately the younger generation for various reasons has turned short tempered and less tolerant.
SUGGESTION –The laws which are there in India provide for a reformative approach towards punishment. According to this theory, the object of punishment should be the reform of the criminal, through the method of individualization. It is based on the humanistic principle that even if an offender commits a crime, he does not cease to be a human being. While awarding punishment the judge should study the character and age of the offender, his early breeding, his education and environment, the circumstances under which he committed the offence, the object with which he committed the offence and other factors. The object of doing so is to acquaint the judge with the exact nature of the circumstances so that he may give a punishment which suits the circumstances. Death penalty is the last degree of punishment that is awarded to the prisoner in extreme cases. The courts in a number of cases have justified imposition of death sentence when the murder, according to the respective judge’s assessment of the facts and their aversion to nature of the crime, was “brutal”, “cold-blooded”, “deliberate”, “unprovoked”, “fatal”, “gruesome”, “wicked”, “callous”, “heinous”, or “violent” etc, therefore, we can say that death penalty can be taken to be as a last resort for the judiciary. A guilt ridden person would not haveto be necessarily be punished with death penalty and the circumstances must been seen thoroughly before passing a judgment so that the degree of punishment is proportionate to the degree of crime. In the case of Dhananjoy Chatterjee[14], Supreme Court of India stated that “The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime”.
Death penalty reinforces the belief that bad things happen to those who deserve it. This reinforces the contrary belief; that good things will happen to those who are ‘good’. In this way, the existence of capital punishment provides a psychological release from conformity and overwork by reinforcing the hope that there will be a reward in due time. To sum this up, every person who is guilty of a wrongdoing deserves to be punished and only the guilty should be punished that too in a proportion to the severity of their crime.
As it has been mentioned earlier, the death penalty in India is to be given only in the rarest of rare crimes and therefore the concept of morality about not giving death sentence is vague because come crimes are just inhumane and the treatment for that should be extreme too the most common examples can be hate crimes or as in a recent judgment after the Kathua rape case[15].it was held
that rape of a child below the age of 12 deserves a punishment of death as it falls under inhumane crimes.
CONCLUSION- In this paper I would like to conclude that a new law must be introduced to regulate the alreadyexisting laws bestowing death penalty so that a fair and proper execution of sentence is achieved, also, I believe that capital punishment is justified but only in extreme cases where the judiciary is immensely convinced that the convict is guilty of the crime and the crime is gruesome and inhumane in its nature to ensure justice which is fair to both the victim and the offender. The argument that it is cruel system is invalid since torture is avoided and in the modern day, capital punishment is administered in a humane manner.
I believe that many times it becomes essential to enforce capital punishment in the society. Although capital punishment could be seen as an aggressive rule in some cases, in my opinion it is an extremely important law that can control many violent crimes of society. Even though capital punishment help reduce crime rates in our society and it is required to prevent harsh offences, the death penalty is a violation of human rights. So, I feel that capital punishments should be given in heinous crimes after being absolutely sure.
Therefore, capital punishment is justified and should have proper laws governing the execution.
Submitted by Jasmine Verma
2nd Semester, LL.B
Faculty of Law
University of Delhi
1.https://en.wikipedia.org/wiki/Capital_punishment
2.https://en.wikipedia.org/wiki/Capital_punishment#cite_note-Amnesty2018-2
3. https://www.legalserviceindia.com/legal/article-1808-theories-of-punishment.html#:~:text=Reformative%20theory%20considers%20punishment%20to,help%20of%20process%20of%20reformation.
4.https://lawtimesjournal.in/capital-punishment-pros-cons/
5. https://www.amnesty.org/en/what-we-do/death-penalty/
6. https://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States
7.https://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States#:~:text=%22Death%20Penalty%22.%20Gallup.%20October%2024%2C%202006.%20Retrieved%20July%2024%2C%202019
8. http://www.gesetze-im-internet.de/bundesrecht/gg/gesamt.pdf
10. Ediga Annama vs. State of Andhra Pradesh, AIR 1973 SC 774
11. Rajendra Prasad vs. State of UP, 1979 AIR 916
12. Bachan Singh v. State of Punjab (1980) AIR 1980 SC 898
13. https://math.dartmouth.edu/~lamperti/my%20DP%20paper,%20current%20edit.htm
14. Dhananjoy Chaterjee vs. State Of W.B, 1994 SCR (1) 37, 1994 SCC (2) 220