Abstract
Capital punishment also means the death penalty. The death penalty is usually given to those offenders who committed heinous, grave, and detestable crimes in which a high degree of culpability is involved. Capital Punishment is an end in itself and it varies from country to country. Till now 170 countries abolished the concept of capital punishment. Different Nations have different opinions on capital punishment. Capital punishment is one of the most deterrent punishments. Awarding the death sentence is one of the most effective weapons for retributive justice for society. Death sentence includes vengeance and compensatory factors to the victim. A person who kills another must be eliminated from the society and therefore, his execution is justified[1].
In criminal jurisprudence, the concept of capital punishment was given in the rarest of rare cases as decided in the case of Bachan Singh v. State of Punjab[2]. Different religions have different perspectives on capital punishment. In the Islamic religion, the death penalty is for those who committed apostasy and adultery. In the Hindu religion, there is no specific instance where the death penalty is given but generally, it is given as revenge like evil for evil. In Christianity, the Bible supports the death penalty against murder. Through this paper, I will try to describe in brief capital punishment according to the different religions and laws in India and other Nations.
Keywords: Capital Punishment, Heinous crime, Religions, Vengeance, Deterrent effect, Retributive.
Introduction
In India the concept of the death penalty is very old, it is old as a Hindu civilization. The origin of capital punishment is time immemorial. In every nation, the concept of the death penalty had been in existence. Although 170 countries have abolished the death penalty still the concept of capital punishment is in existence and it is a very debatable topic. Many jurists opined that capital punishment should be abolished but many jurists and judges are in favor of the death penalty. In the ancient period, the death penalty was to be given in the form of boiling, beheading, flogging, skinning off alive[3], hanging, stoning, shooting, or starving the accused to hunger. In the Indian Penal Code,1860 there are limited offenses where the death penalty is given for the commission of a crime by offenders in the cases of waging war against the Government of India[4]Dacoity with Murder[5], Murder[6], Abetment of mutiny[7], Murder by life-convict[8]Giving or fabricating false evidence with intent to procure conviction of capital offense[9]Kidnapping for Ransom[10].
Punishments allude to pain or loss to the wrongdoers who inflicted injury by their misconduct. The death penalty sets an example and creates fear among the wrongdoers who commit public wrongs. In India, the Indian Judiciary sentences the culprits according to the provisions laid down by the Legislature in different statutes. Capital punishment is the highest form of punishment.
In the case of Dhananjoy Chatterjee alias Dhana v. State of West Bengal[11], in this case, Dhananjoy Chatterjee was accused of raping a fourteen year’s old girl and choking her to death, he was a security guard and the girl was in the same apartment where he was placed for duty. The Supreme Court sentenced him to death and this case was fall within the wall of rarest of rare cases because the role of security guard was to protect the society. His family members filed a mercy petition which was rejected by former President Dr. A.P.J Abdul Kalam. The accused was hanged to death on his 39th Birthday Anniversary.
In the case of Mukesh v. State for NCT of Delhi [ Nirbhaya Rape Case][12], the night case shook the entire Nation through the brutality of the Rape case which led to the conviction of four accused for the heinous crime to the death sentence. The four accused were hanged to death on 20th March 2020 at Tihar Jail when the pandemic was hitting the Nation and this case set an example in society that for any heinous and brutal crime the punishment for that crime is only the death sentence which falls within the ambit of Rarest of Rare Case.
In the case of Jagmohan Singh v. State of U.P.,[13] the constitutionality of capital punishment was challenged for the first time in 1973. Before the year 1955, the position was that death is
the rule and culpable homicide is an exception. If a person had committed the offense of causing the death of another person generally the High Court and the Supreme Court give the death sentence, awarding the death was the rule and the exception was life imprisonment.
According to Section 367(5) of the Code of Criminal Procedure 1898, the High Court and the Supreme Court were going to award the death sentence, then the court has to mention only the reason that the court was going to give life imprisonment then the court had to mention special reasons in his judgment. But in the year 1955 Section 367(5) of Code the of Criminal Procedure1898, was deleted. As a consequence, the discretion of the judges of the High Court and the Supreme Court was widened for giving punishment of life imprisonment and the death sentence.
After the enactment of the new Code in 1973[14], the court was awarded life imprisonment or imprisonment for a term of the year, the court has to mention the reasons. But in case of awarding the death sentence, then the court has to mention special reasons and the same provision is prevailing in the present time, where the death sentence is for heinous, grave, and brutal crimes for which the punishment is the death penalty as mentioned in the Penal Law.
Review of Literature
Capital Punishment is a debatable topic. Different Nations have different perspectives on the death penalty. Many jurists and scholars are of the view that the death penalty should be abolished in India because it doesn’t lead to morality and is less effective. Till 2005 there were 1303 cases where the accused were convicted of the death penalty and 371 Indians were on death row but only four accused were hanged on death. Different Nations have different methods for the execution of the death penalty.
Through this paper, I tried to cover the different modes of execution of the death penalty according to modern dimensions. The earlier death penalty was given in a brutal and inhumane way. Wrongdoers were put in front of the elephant and then they were sentenced to death under the foot of the elephant, keeping the wrongdoer in the gas chamber where death was caused by suffocation. In ancient India, there was a king who takes out the flesh of wrongdoers according to the nature of the crime. If a person committed the offense of theft, then according to the stolen things flesh was taken off the body of the wrongdoer.
Recently there has been a change in the execution of capital punishment. The lethal injection which is first developed in the United States as a legal means of giving the death sentence. Lethal Injection contains drug elements like (barbiturate, paralytic, and potassium solution) it fails the organs of the body which is a painless and less inhumane mode of sentencing the accused to death. In my opinion, capital punishment should be given by adopting the new modes of execution of the death sentence.
Countries with different modes of the death penalty and its execution China
In China, there are more than one thousand executions of the death penalty according to the data of 2001. China has the highest rate of execution of the death penalty. The Chinese Judiciary system doesn’t reveal the name of the accused persons who are convicted of the death penalty. The Chinese Judiciary system requires all death penalty executioners to remain private and confidential. In China, the families of the accused who are sentenced to death are unaware of the execution of the death. China employs firing squads to carry out the death penalty. China is supported by most Nations for the execution of the death penalty. The Chinese government adopts the method of injecting lethal injections[15]in the accused who is convicted of a death sentence which is less painful and more humane.
International methods for the execution of the death penalty
| Modes of Execution of the Death Penalty | Countries |
| Electrocution | Saudi Arabia |
| Lethal Injection | China, Vietnam, United States |
| Beheading | Dubai |
| Hanging | Bangladesh, Botswana, Egypt, India, Iran, Iraq, South Sudan, Syria |
| Shooting | China, Iran, North Korea, Oman, Qatar, Somalia, Taiwan, Yemen |
United States
In the United States, there are fourteen offenses for which capital punishment is there. Offenses like Espionage, treason, and death as a result of an aircraft hijacking are among the capital offenses. However, the majority of them include different types of murder, including genocide, murder during a kidnapping, murder during a drug-related drive-by shooting, and murder for hire. In different parts of the United States, five execution techniques—injection, electrocution, gas, firing squad, and hanging—are permitted. In 2015, Tennessee became the first state to permit the use of the electric chair under certain conditions, against the wishes of the convict, if injectable medications are not available.
However, according to the Death Penalty Information Centre, injection is the most common method of execution in all 35 states that have death row convicts, as well as the federal government and the U.S. military.
Deborah Denno, a professor at Fordham Law School who has studied executions for more than two decades, said states have changed execution tactics throughout the years in periodic attempts to make them more humane and to avoid litigation.
United Arab Emirates
In the United Arab Emirates death penalty is a legal punishment. There are several offenses in the Emigrates Law for awarding death sentences. The death penalty is currently permitted for the following crimes: treason, espionage, murder, successfully inciting a person “afflicted with total lack of free will or reason” to commit suicide, acts of indecent assault that result in death, arson, rape, perjury resulting in wrongful execution, aggravated robbery, terrorism, sodomy, homosexuality, drug trafficking, and joining the Islamic State of Iraq and the Levant.
Both foreign foreigners and UAE citizens have been put to death for their crimes. Beheadings are the only form of execution punishment practiced only in Saudi Arabia. Saudi Arabia executed five Yemeni males and a Saudi in May of last year. The Yemeni males were found guilty of murder, organizing an armed gang, and armed robbery. The Saudi was found guilty of murder as well. The public beheadings are carried out using swords.
India
India is a nation that adheres to the “innocent until proven guilty” rule of law and the reformative theory of law. The death penalty is the harshest punishment a condemned person can receive. As a result, India does not frequently pass death sentences. In India, 144 people received death sentences in total in 2021.
Since the Nirbhaya Rape Case belonged to the category of the rarest of the rare crimes in India, the court imposed the death sentence for the most severe or heinous offenses, capital punishment. Executions for these offenses typically include hanging. But it’s important to point out that it’s a relatively uncommon phenomenon in India. The death penalty is covered under both the Code of Criminal Procedure and the Indian Penal Code. The death sentence has been applied in India ever since it was first introduced, though less frequently now.
In the case of Mohammad Ajmal Amir Kasab v. State of Maharashtra[16], the Supreme Court held that Ajmal Kasab was under the death sentence. This case is also known as the Mumbai Terror Attack 26/11. Media was the source to expedite the case because they covered all the actions which were taken by the authorities to detain the terrorists and protect the citizens from terrorist attacks. A chargesheet of 11000 pages was prepared against Ajmal Kasab. Mercy Plea was also filed by Ajmal Kasab but President Pranab Mukherjee upheld the judgment of capital punishment.
On 21st November 2012, Mohammad Ajmal Amir Kasab was hanged on death. The Parliament Attack Case State v. Mohd. Afzal Guru and Ors[17]., in this case Mohd. Afzal Guru was accused of being the mastermind of the Parliament Attacks in 2001 where eight security personnel were shot dead and a gardener. The accused confessed his guilt before the media and later on he took back his statement before the court and contented that he was pressurized for the confession of his guilt. Under the Prevention of Terrorism Act a special court was formed where the court sentenced the accused to death sentence. His plea for mercy was rejected by President Pranab Mukherjee.
On 9 February 2013, his execution was confidential, and hanged on the death. In the case of Machhi Singh v. State of Punjab,[18]the concept of rarest of rare came with an elaborated form where the accused Machhi Singh raid so many villages along with eleven accomplices in the night to kill seventeen people including men, women, and children. The accused suspected that all the seventeen people are the relatives of Amar Singh and his sister. The Supreme Court acknowledged the decision of the Session Court and the High Court and upheld that for the grave and heinous crime, there is no space for life imprisonment, and therefore all the three accused were sentenced to death as they committed a brutal and grave crime which affects the society as a whole.
Conclusion
Capital punishment is not a new practice as it is being followed by people since ancient times. In the Ramayana and the Mahabharata, capital punishment had been used to punish the wrongdoers. There had been a concept of Vadh which is used as killing of a wrongdoer who committed the crime. Capital punishment should not be abolished as it is an apprehension in the mind of criminals so that they do not commit heinous and grave crimes. A rapist does not deserve a dignified life because he outraged the modesty of a woman and snatched her dignity therefore one cannot stick to the Article 21 of the Constitution of India which is a ground supported by many jurists for the abolition of capital punishment.
In my opinion, one should adopt the modern dimensions for the execution of capital punishment to avoid the delayed trial for the accused who is convicted under the death penalty. The above-discussed modern modes of execution of the death penalty are less painful and inhumane which doesn’t lead to immorality. The pardoning power of the President and the Governor should not be accepted in cases of heinous and grave crime because once a culprit will be pardoned then every culprit will approach for mercy.
No one has the right to take the life of others only for revenge. A wrongdoer should be punished for the wrong which he committed and punishment for that should be equal to the wrong he committed. Execution of the death penalty should be done with a speedy mechanism and remain confidential until or unless executed successfully. In 2021 31,677 rape caseswere registered across the country with a daily average of 86 cases of rape on the daily basis. There is an increase in the cases of rape if the judicial system will adopt strict and speedy trials then the heinous crime can be reduced. The Supreme Court must follow the progressive trend. Forbidding a man’s execution would amount to proclaiming publicly that “society and the State are not absolute values, that nothing authorizes them to legislate definitely or to bring about the irreparable.
BY-
Palak Singh
[1] David Dressler: Reading in Criminology and Penology (Second Ed) p. 501.
[2] Bachan Singh v. State of Punjab (1979) 3 SCC 727.
[3] Skinning alive used to be inflicted in ancient Assyria, Sathya and Persia (See Rawlinson: Ancient Vol. 1, p. 478).
[4] Section 121, Indian Penal Code, 1860.
[5] Section 396, Indian Penal Code, 1860.
[6] Section 302, Indian Penal Code, 1860.
[7] Section 132, Indian Penal Code, 1860.
[8] Section 303, Indian Penal Code, 1860.
[9] Section 194, Indian Penal Code, 1860.
[10] Section 364A, Indian Penal Code, 1860.
[11] Dhananjoy Chatterjee alias Dhana v. State of West Bengal (1994) 2 SCC 220.
[12] Mukesh v. State for NCT of Delhi (2017) 6 SCC1.
[13] Jagmohan Singh v. State of U.P. AIR 1973 SC 947.
[14] The Code of Criminal Procedure, 1973.
[15] An injection administered for the purpose of euthanasia or as a means of capital punishment.
[16] Mohammad Ajmal Amir Kasab v. State of Maharashtra (2012) 9 SCC 1.
[17] State v. Mohd. Afzal Guru and Ors. (2003) 71 DRJ 178 (DB): 2003 SCC Del 935.
[18] Machhi Singh v. State of Punjab 1983 AIR 957.