ABSTRACT
The idea of punishment in the criminal justice system is universally acknowledged, there is controversy when it comes to the Capital Punishment. Over the last several decades, the capital punishment has been the most contentious issue. There are a lot of arguments in support of the death penalty and a lot of arguments against it. The death penalty is the legal authority to kill a criminal for violating a law. The arguments put up by those in favour justified it by citing the paramount interest of the State—national security—and the concepts of justice. However, proponents of abolitionists define the death penalty as a flagrant violation of human rights because it is an immoral, unjust, and arbitrary slaughter carried out at the whim of judges.
Subsequently, the global context surrounding the death penalty is that Article 3 of the Universal Declaration of Human Rights “everyone has a right to life. Although, according to Article 6(2)”sentence of death may be imposed for the most serious crime following to the law”. Consequently, it follows that the government has an obligation to strike a balance between an individual’s right to life and the right of the community to safety and security. This primary objective of the research is to present the broad case made by proponents and opponents of the death penalty along with supporting evidence.
KEYWORDS: Capital Punishment, National Security, Justice, Abolitionists, Right to Life
INTRODUCTION
The punishment is the liability which the wrongdoer pays against the wrong done by him. The punishment is one of the crucial and most accepted means to mitigate the crime in the society. The philosophy behind the infliction of punishment is to create a deterrence for the others to abstain from committing the offence and to punish the culprit from the further occurrence of the same. However, when the capital punishment is concern, the different perspective is drawn by the various philosopher, jurists and academics. On the one hand, the capital punishment violate the human rights of the offender which is against the morality and on the other hand, capital punishment is necessary for the preservation of justice. Consequently, the constitutional validity of the capital punishment on the ground of morality and humanity, is the most controversial issue from the long decade.
RESEARCH METHODOLOGY
The research methodology proposed to be used in this research paper is doctrinal as it consists of all theoretical part. I have used primary which includes International convention and treaties and secondary sources of information such as data and records.
MEANING OF CAPITAL PUNISHMENT
Capital punishment, also refers the death penalty, is the legal sanction in which the offender is sentenced to death by the Court after the conviction for the heinous crime. As every person has the right to life and personal liberty, so the infliction of the death penalty is criticized by the proponents that it serves as the irreversible, moral and ethical grounds in the interest of the individual but the opponent justified it by maintaining that it is necessary for the interest of the State as well as victim and his or her family. The offences for which the capital punishment is inflicted is varies from country to country such as in United State, capital punishment is awarded for the offence of treason, espionage, and certain aggravated forms of kidnapping, in China inflicted for drug trafficking, corruption and economic crime. However, terrorism and murder is the common crime for which the death sentence is given almost all the countries over the world. Although not prohibited by International Law but more than 70% of the countries abolished the death penalty worldwide. Similarly, there is also a various modes of infliction of capital punishment such as hanging, shooting and so on.
HISTORICAL EVOLUTION OF THE CAPITAL PUNISHMENT
The capital punishment serves as the strict and harsh alternative to curb the crime which was prevalent in almost all the ancient culture of society. In the ancient time, generally due to the absence of written document, the capital punishment was arbitrary given by the king and its official. However with the first documentation of laws in Babylon named Hammurabi’s code was laid down some rules with regards to the capital punishment as well. When the civilization was started, the theory of eye for an eye, tooth for a tooth and blood for a blood was prevail which left no scope for the wrongdoer to refrain from the punishment. The animal and inanimate were also the subject of capital punishment till the 13th century. Hence, in the mediaeval period, the capital punishment was widely accepted across the Europe especially in the offence of treason and theft etc. Subsequently, the view were started to change in the enlightenment era. Philosopher like Cesare Beccaria advocated the reform of the criminal system by criticizing the brutal and inhuman nature of the capital punishment. The countries begins to abolish the capital punishment. Michigan was the first State which abolished the same except treason in 1846. The end of 18th century Venezuela, Portugal, Netherland, Costa, Rica, Brazil follows for abolition of death penalty. In the modern era, the pardon were also granted to the wrongdoer as the act of grace and humanity.
ETHICAL AND MORAL ARGUMENTS SURROUNDING THE CAPITAL PUNISHMENT
Human rights is the basic and fundamental rights which is given to all the persons irrespective of their caste, creed, sex, religion, region, gender, nationality and so on. The human rights is the essential and inherent rights without which the individual cannot survive. They include civil and political rights, such as the right to life, freedom of speech, and equality before the law, as well as economic, social, and cultural rights, such as the right to education, healthcare, and work. Human rights serve as a framework for promoting dignity, equality, and justice, and they are enshrined in various international treaties and declarations, Article 3 the Universal Declaration of Human Rights,1948 envisaged that everyone has a right to life and Article 9 states that no one shall be subjected to the arbitrary arrest, detention and exile.
One of the greatest priority of United Nations is human life. As a result, because capital punishment permanently takes away life and free will of the individual, is the worst infringement of the right given by United Nations. Death sentence is unethical since it is an act that cannot be undone and is therefore harsh and merciless. Furthermore, the inevitable possibility that the victim may not be guilty makes it much more immoral. Even though it might be argued that life in prison is also unethical because it takes away a person’s freedom permanently. But an offender’s life is still preserved, and they have the opportunity to reflect on their actions and find meaning in their life—even if they are now part of a different kind of community. Additionally, if a person who turns out to be innocent is imprisoned, there is still a chance they can be let out of prison. However, an individual who is killed but ends up being innocent, is an act that cannot be reversed. This is one of the reason which can cannot justified the capital punishment as to preserve the State interest.
One of the contention of the supporter of capital punishment is that it created a deterrent to the offender to repeat the crime again and also to the society however, it is fail in most of the cases because death penalty is a means of retributive justice which says to balance between crime with the punishment. Many scholars have argued that the death penalty serves to teach society about the gravity of crime. However, adhering to the principle of retribution—responding to violence with violence—does not effectively teach society to cease violent behaviours; rather, it has led to an increase in violence. Mahatma Gandhi was the one of the great proposer of abolition of capital punishment stated that ‘eye for an eye will make the whole world blind’.
This disproves the argument in favour of keeping the death penalty based on Principle of Welfare, which prioritizes meeting the needs of the majority over those of a select minority. Its foundation is the utilitarian theory, which holds that laws ought to be written to maximize societal happiness as a whole. Punishment is therefore only appropriate when it stops more harm from occurring to the community than it does when the perpetrator is punished. But as the death penalty does not balance the harm to society, it is not an acceptable means of punishing an offender since it is not a reliable deterrent against harm, i.e., crime. As a result, the death penalty is an ineffective punishment that undermines the welfare concept and offers no appreciable safety or security benefits to society. If life in prison is not a more effective deterrent to crime than the death penalty, then there is no justification for maintaining the death penalty. On the one hand, it would make sense to fear the death penalty’s finality more than incarceration. It is a widely held belief in psychology that humans are not logical agents. When committing a crime, the perpetrator frequently does not consider the consequences of their actions or the advantages of abstaining from crime. This is due to the fact that most people don’t commit crimes out of fear of punishment, but rather as a result of the cultural and moral standards of the society in which they are nurtured. This may help to explain why the death penalty has little effect in deterring crime. Finally, contrary to popular belief, studies investigating the effects of capital punishment on the deterrence of crime are inconclusive.
Furthermore, the death penalty is arbitrary rather than a measure of justice since it can be used to justify harsh and needless punishment. While international law does not forbid the death penalty, Article 6(2) of the ICCPR states that “sentence of death may be imposed only for the most serious crimes following the law…” Unfortunately, the definition of “serious crime” is arbitrary and culturally specific, making it an inadequate yardstick for judging fairness. For example, adultery is considered the worst crime in some Islamic states; in Saudi Arabia, for example, adultery carries a death sentence by stoning.
DETERRENCE THEORY AND NATIONAL SECURITY
The practice of carrying out capital punishment, or killing those found guilty of severe crimes, is still very controversial across the world and frequently sparks intense discussions over whether it is necessary to further state objectives. Its supporters contend that it is an essential instrument for preventing crime, giving victims justice, guaranteeing public safety, representing the authority of the state, and bringing closure to society.
The deterrent impact of the death penalty is one of the crucial reason of the supports to emphasise upon the retention of the same. They contend that the possibility of death acts as a significant deterrent, keeping potential criminals from doing horrible acts. The rationale behind is that people would refrain from doing actions that could result in their own death out of dread of the worst possible outcome. According to this perspective, the death penalty deters potential offenders as well as the person who is about to do the same. However, the opponents negate the philosophy of deterrent behind the capital punishment because of its unclearity and unequal impact upon the different countries. Just because of the deterrence effects are unclear, does not mean that it is totally ineffectual. It is easy to determine if the death penalty is necessary and successful based on a country’s political and economic stability. In reality, in nations that have experienced economic upheaval and have restricted access to secure jail facilities, the death sentence can be the only viable means of combating crime and eradicating corruption. The prospect of execution might serve as a deterrent for corrupt behaviour among public servants and other persons. Greater deterrent to high-level corruption than less severe sanctions may come from the death penalty.
Executing convicted offenders who have committed serious crimes guarantees that they won’t be able to conduct crimes again. By doing this, harmful people are permanently removed from society, safeguarding everyone else. Some contend that the death penalty may end up being less expensive over time than putting a person behind bars for life without the possibility of release. This argument takes into account the cost of housing, healthcare, and other associated expenses in the event of a lifelong prison sentence.
As far as the emotional and psychological impact upon the society is concern, it become irrelevant because the emotions and the reason are two different things which cannot be fit in the same pedestal. To punish the most heinous criminals, the capital punishment inevitably proved to be the last resort because sometimes the reformative perspective is not employed as sound response, especially in the case of terrorist, serial killer etc. On the other side, the abolitionists of capital punishment argues that the State has used such means to validate the gross violation of human rights in ill faith. However, it cannot be justified merely upon this rational because the perpetrator the given the sentence when his or her guilt is proved beyond reasonable doubt. Hence, it cannot be said that the innocent have been executed negligently.
INTERNATIONAL PERSPECTIVES AND HUMAN RIGHTS CONCERN
The global community has been deeply concerned with the issue of abolishing the death penalty. Since 1959, the United Nations General Assembly has actively worked to promote the dignity of life and the elimination of capital punishment. In collaboration with the Commission on Human Rights, the General Assembly achieved a significant milestone on December 15, 1989, by adopting the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims to abolish the death penalty as a form of punishment.
Article 6 of the International Covenant on Civil and Political Rights states that every person has an inherent right to life, which must be safeguarded by law. It specifies that no one should be arbitrarily deprived of their life, but it does not entirely forbid the use of capital punishment. The key requirement is that human life should not be taken in an arbitrary manner. It provides that countries in which death penalty has still not been abolished must observe following safeguards:
(1) The punishment of death sentence should be imposed only in the cases of most serious crime,
(2) The punishment of death sentence should be imposed only in accordance with the law in force at the time of the commission of the crime
(3) The death penalty should not be imposed in contravention of the provisions of the Covenant on Civil and Political Rights and of the provisions of Convention on the Prevention and Punishment of the Crime of Genocide,
(4) The death penalty can only be executed following a final judgment issued by a competent court,
(5) Anyone sentenced to death has the right to request a pardon or a commutation of their sentence given by competent court,
(6) The death penalty must not be imposed for the offence committed by individuals under the age of eighteen; and
(7) If death penalty has been imposed upon a women, it shall not be carried out in pregnancy.
CAPITAL PUNISHMENT IN INDIA
As India is the retentions country where a person is found guilty of major offences are sentenced to death. The Court must be persuaded that this type of crime comes within the “rarest of rare” criterion in order for it to be awarded. Article 21 of the Constitution of India protects right to life and personal freedom, which cannot be taken away from them unless there are exceptional circumstances. Specifically, this right is in opposition to the state. Courts must exercise caution while interpreting the “rarest of rare” doctrine in order to prevent unlawful encroachment on these rights; otherwise, it will be deemed a breach of the aforementioned article.
RAREST OF THE RARE DOCTRINE
This principle have been established on the notion of Gandhian theory that hate the crime and not the criminal, in the landmark case of Bachan Singh v. State of Punjab that the death penalty can only be given when the judiciary found that the offence falls in the category and necessary in the interest of the society as well as State. There is no any exhaustive definition which define the meaning or the rarest of the rare but it is evaluated on the basis of the manner, intention, modes of operation and evidences of the offence. When imposing the death penalty, a judge must clearly state the reasons or circumstances compelling the decision to impose the harshest punishment. There must be sufficiently strong reasons to justify such a sentence. If the judge cannot provide adequate justification for the execution, the punishment is not warranted and should not be imposed.
“There should be exemplary punishment in view of the unparalleled brutality with which the victim was gang raped and murdered, as the case falls under the rarest of rare category. All be given death.“
– Additional Sessions Judge Yogesh Khanna in the infamous Delhi gang-rape case
Certain offences under I.P.C. 1860, for which the offenders are sentenced to punishment of death, have been named as follows:
Murder (Section 302), Criminal Conspiracy (Section 120B), Waging war against the Government of India or attempting to do so (section 121), Dacoity with murder (Section 396) and Abatement of mutiny (Section 132) and others.
REFORMING CAPITAL PUNISHMENT: RECOMMENDATION AND FUTURE DIRECTION
For the first time, a Gallup poll indicates that more Americans (50%) believe the death penalty is administered unfairly than those who believe it is fair (47%). In 2023, only five states (Texas, Florida, Missouri, Oklahoma, and Alabama) carried out such executions, and only seven states (Alabama, Arizona, California, Florida, Louisiana, North Carolina, and Texas) sentenced individuals to death. Therefore, the number of executions surpassed the number of new death sentences. The majority of media coverage on death penalty cases in 2023 focused on cases involving claims of innocence. Despite the legal challenges by these convicts being largely unsuccessful, state lawmakers, prosecutors, judges, and other elected officials—some expressing new disillusionment with the death penalty in their state—offered unprecedented support for their claims. However, before executing the death penalty, humanitarian considerations must be adhered to in accordance with due process of law by the competent court. States should adopt a restorative approach to justice that addresses the needs of the entire community with transparency, including clear reporting and public access to case details.
The Law Commission of India has recommended that the death penalty should be abolished for all crimes except those related to terrorism and waging war against the Government of India. Additionally, the Commission expresses a strong hope that the move towards complete abolition will be rapid and permanent.
CONCLUSION
There needs to be an end to the disagreement about the capital punishment. However, it seems improbable that a settlement of this kind will be achieved by yet another “logical” examination of the long-standing debates. Additionally, it is unlikely that a settlement will result from the emergence of fresh dispute public opinion will eventually determine how the dispute is resolved, whether it is resolved in the legislatures or the courts. Therefore, it is necessary to give up on the controversy’s approach of restating the traditional arguments, shifting the focus to those that are currently fashionable, and including emotional appeals in line with current trends, and instead put more attention on figuring out what the people genuinely considers the death penalty.
However, this does not mean that other concerns—like the prevalence of prejudice in practice, the deterrent effect, and the need to safeguard society—can be disregarded. By providing empirical support for their positions on each of these points, retentionists and abolitionists can both help resolve the dispute. Public opinion can be influenced by giving such evidence.
Experience from recent times may suggest that the death penalty is quickly being abolished. Very few capital cases have been carried out in recent years, despite the fact that attempts to have the death penalty abolished in legislatures have generally failed, that attempts to have it declared unconstitutional have failed, and that many death sentences are still being returned. However, it is unlikely that the debate surrounding the death penalty will go away so quickly.