Death Penalty- Also known as “Capital Punishment”. Death Penalty is one of the highest rated level of punishment in today’s society for maintaining the law and order in the society8. Death Penalty means giving a Death sentence to a person who has had committed a crime or a heinous offence. Precisely, it can be said that it is killing of an individual by legal means under the name of law and justice.
Our society should focus on removing the crime from the society and not just the criminal. Death Penalty is practiced in different counties in different ways and according to their laws. Looking into Indian context, Death Penalty is given only in 3‘Rarest of Rare case’. It often leads to the life imprisonment in some cases. United Nation states that- capital Punishment violates the Right of the People and because of which they haven’t adopted this punishment. Further they stated that-“Life is precious and Death is irrevocable”. There are several other ways of diminishing the crimes from the society. Proper substitute can be found rather than killing a person which ultimately leads to a murder of the person.
Death penalty, crime, law & order,brutal, rarest of rare..etc
Punishment is the foisting of a penalty as reckoning for an crime/offence committed. To maintain the law& order in the society, it is important to remove the criminals from the society so that smooth functioning of the state can be carried out.
7 In previous times, there were no such rules or laws for preventing the crimes. It depends on the king and he was the one who used to decide upon the actions which were required to be taken. On that basis the punishment were given at that time. However, In Modern civilization, various Theories of Punishment came into existence. This is important for the security of the state. It is one of the weapon to maintain peace and regulating the society.
Death penalty is a kind of punishment in which if a person commits a crime which is heinous/ brutal in nature and also against the law, then he will be hanged to . It is declared
as the legal killing. Capital punishment is approved by the Government by which the person is put to a death sentence by order of state as a penalty for the crime which is prohibited by the law.
In Death Penalty, defendant who is hanged to death is termed as ‘death sentence’ and and the procedure carried out for the same is known as the ‘execution’. But before giving the judgement of Death Penalty, the Court analyzes the judgement on which it is passed.
The Theories of Punishment includes-
- Deterrent Theory: It is a punishment to threat a person or to deter a person to avoid the crime of same offence.
- Preventive Theory: It is the prevention of the same crime by way of imprisonment, forfeiture, death punishment etc.
- Retributive theory: when a person commits crime, he should be treated with the same amount of punishment which is proportional to the offence.
- Expiation theory: In this theory the wrongdoer is awarded with the compensation.
- Reformative Theory: This theory is something curative rather than deterrent. This theory says that Crime is like a disease which can’t be prevented by killing but can be surely cured by the medicines.
The concept of Capital Punishment is not accepted by the United Nations. 1“Abolition of the capital punishment” is most controversial topic. Death Penalty is abolition of the human rights and life. According to them, reformative theory can be practiced rather than the deterrent theory3.
Quoting the case of 2Justice V R Krishna Iyer, He stated that- “The special reason must relate to crime and not to the criminal”. If we go through the 3Theories of Punishment, It can be seen that Reformative Theory has much scope than Deterrent Theory. Reformative Theory has the scope of improvement. It is a fair way to run the society and to give a chance to criminals to improve rather than murdering them. In Deterrent theory there is no scope of improvement.
Looking into Indian prisoners, 7they have shown their creativity and so many handmade things in jail,which is something good for them to live a better life& also it is a fair way to give a punishment and also it don’t violate the rights of the people.
Capital Punishment is a controversial as well as sensitive topic as it is related to the life of the people. It means taking a life of a people by ‘legal way’, which is again a crucial topic. Because of this punishment there are many questions and issues raised across the world.
1In countries like china around in 60% cases, Capital Punishment is applied and practiced. In India, Death Penalty is applicable only on the principle of 3rarest of rare case. In UN this punishment is not accepted as it takes the life of an individual without giving them a fair chance. Besides this they focus on the Reformative theory.
Capital Punishment can be viewed as-
- for some group of people a person who commits a crime should be hanged to death so that same crime do not takes place again.
- Another perception of society is that, A person deserves a second chance so that he can make changes in his life and he can be prevented from hanging to death. Hence hanging a person under the name of the law is not justificable
CAPITAL PUNISHMENT IN INDIA
A.P.J Abdul kalam once said that-“we all are the creation of God. I am not sure a human system created by human being is competent to take away a life based on the artificial and created evidence”.
When death penalty is given there may be two possible outcomes-
- one is that a person should get back what he had done and should suffer the same amount of pain.
- Another is that, it should set an example for other criminals so that same crime won’t happen again. It is creating a fear in the minds of the people.
Looking into Indian context, Death penalty is given in 3rarest of rare case. The concept of rarest of rare case is mentioned in the case of 3Bacchan singh V.S state of Punjab. In case of 4Macchi Singh & others V.S state of Punjab, the Judges panel had given the Judgement based on the principle mentioned in the Bacchan singh case.
Death Penalty is applicable only if-
- The offence committed must be of henious, brutal, and which is against the law.
- In case regarding Dowry Death or Bride burning.
- when the victim is – child, a women.. etc
DOCTRINE OF RAREST OF RARE CASE
The Doctrine of rarest of rare case is stated in the case of 3Bacchan singh V state of Punjab. Supreme court said that the death Penalty is a very sensitive topic which relates to the life of an individual. Hence, it should be given in rarest of rare case. This view of supreme court got many support and views and it helped in reducing the rate of the Death penalty. The rule vacillate by supreme court in case of the 3Bacchan Singh says that- capital Punishment can be considered as constitutional only when it provides to life imprisonment.
However, 6Article 21 of the Indian Constitution says that no person shall be deprived of his right to life, unless it is done with the due process of law. Hence by seeing the article 21 we can say that, death penalty violates the right of a person.
LAW COMMISSION REPORT (2015)
Law commission report is a group of people by government which conduct or which recommend reform whenever needed.
7In the year 2015, the Law Commission report stated that the concept of death Penalty should be diminished only in the case of terrorism. It should be applicable for protection of the national security.
Before 2015, In one report the Law commission stated that, the India cannot diminish capital Punishment but in 2015 report it was mentioned that commission should take step towards the Abolition of Death penalty.
In India the rate of Death Penalty is less. Still the Law commission report has advised that this punishment should be abolished reasons behind the abolition is mentioned as follows-
- It do not remove the crime but only criminals.
- Proper substitute is needed for the capital punishment3. It flawed the Judicial system of India.
EXECUTION RATE OF CAPITAL PUNISHMENT
Death Penalty is present & practiced in most of the countries. The above graph shows the rate of execution of Death Penalty in India from the year 1998 to 2013.
Looking into Indian Context, from past 20 years, total number 3521 cases were reduced to life imprisonment.
In the year 2007. 7In case of Yakub and 11 other criminals were convicted to the Death Penalty because of the crime they have committed. They were involved in the Mumbai bomb spot activity which lead to death of many innocent individuals. It was very miserable crime. Also in the year 2013, in month of march, In the case of Memon’s The Supreme Court held the Death Penalty in which the 10 members were convicted to the Life Imprisonment among which one person died later.
In past years ( 14 years ), the cases in which Death Penalty were given were as follows-
- kasab case
- case of Dhananjay Chatterjee
- Afzal Guru Case
- Yakub Case
When the session / Trial court award the criminal Death Penalty then further ruling is given by High Court to make the procedure complete. After the Decision of High Court is confirmed then the convicted person has the right of the appealing to the Supreme Court. But if the Supreme Court also turns down the appeal or rejects the filed petition then the person can give 10‘Mercy Petition’to the President of India and the Government of the state.
- Hanging a person
In India, the method of hanging till death is followed. Hanging is one of the ancient method of giving Death penalty. It was also that Death Penalty should only be imposed only in rarest of rare case.
Another method is shooting. It is declared a the official method of the execution of Death penalty.
CASES IN WHICH DEATH PENALTY IS AWARDED
- Offences which results in death of the other person
- Terrorism Act
- Brutal Rape
- Kidnapping which do not results into death
- Drug trafficking
CATEGORY IN WHICH OFFENDERS ARE EXCLUDED FROM DEATH PENALTY
- Pregnant women
- Disabled person
IPC SECTIONS OF CAPITAL PUNISHMENT
- Section 120B of IPC- 8A person involved in criminal conspiracy to commit a capital offence.
- Section 121 of IPC- 8An individual involved in the Treason Act against Government of India.
- Section 132 of IPC- 8A person who has committed Abetment of Mutiny.
- Section 194 of IPC- 4one who gives fabricating evidence/ false evidence with the intention to procure a conviction capital offence
- Section 195 of IPC- threatening a person which results in death of an innocent.
- Section 302 of IPC- henious crime Murder.
- Section 305 of IPC- abetting suicide by a minor or an insane person
- Section 307 (2) of IPC- attempted a murder
- Section 364A of IPC- Kidnapping for purpose of Ransom
- Section 376 of IPC- A person who has committed brutal rape and injury which leads to death of women or leaves women in vegetative state.
- Section 376 AB of IPC- Rape of a Child ( below 12years)
- Section 376 DB of IPC- Gang rape ( child of below 12 years).
- Section 376 E of IPC- Repeated offences in rape6.
- Section 396 of Ipc- Dacoity ( with murder). In this case if there are group of people committed dacoity and one of them committed murder then all group members will be held liable for death penalty.
REVIEW OF LITERATURE
The death penalty has been seen with the factors that include age, class, gender, etc. In previous phase it was considered that women were pure soul, they are good in every aspect and because of this gender stereotype they were exempted from the death penalty. They were not punishable by this punishment. Till 2002 , the children ( below 18 years) who commited the crime were considered eligible for the death penalty. Later in the US in one case Supreme Court held that the Capital Punishment cannot be applied on the person who is below the age of 18 years , who hasn’t attended the age of majority. Another group which is excluded from the Capital Punishment is the group who is mentally retarded person, who is insane and because of which he cant be awarded with such punishment.
In USA, group of people supported the Capital punishment but they were of view that the person deserves a second chance and proper substitute should be found to this punishment. There were multiple factors that influenced support or opposition to this sensitive topic. In was observed that women’s were in less support of the death penalty than the men.
9 In India the capital punishment is considered to violate the article 19, Article 14 and artice 21 of the Indian Constitution. Also this view was mentioned in the Hon’ble Krishna Iyer case of Rajendra Prasad. Death penalty is the violations of the Articles 14, 19 and 21.
Also there are various cases in which for and against views on capital punishment are mentioned. In the book of kannabiran, the death penalty was itself a heinous crime. Several countries had abolished the concept of the death penalty. Suitable substitution for Capital punishment were to be found. Death penalty do not remove the crime but the criminal only.
In India the thought of Abolishing the Death Penalty can hamper the National security. People life will be insecured. Death penalty is also important for maintaining peace and order. It helps in smooth functioning of the state. In India death penalty is applicable in only Rarest of Rare case.
Some of the cases in which death penalty ere given are Mohammed Afzal case, Yakub case.. from which several other changes were came into existence.
“Life is precious and Death is irrevocable”.
Death Punishment is not the proper way to eliminate the crime from the society. It will not lead to decrease the crime rate but only remove the person from the society. Before studying other aspects it is first important to understand the psychiological aspect. This will help to understand why there is increase in the rate of crime, where were the laws lacking, what steps can be taken to reduce thr crime rates. There is need to find the proper alternative rather than death penalty. Death Penalty is killing someone in the name of Justice. But by awarding Death Penalty the question arises whether it really provides justice to both the victim as well as accused? There is requirement of proper laws so that one can find proper alternativre. As US believes that Reformative Theory is proper substitute rather than capital punishment, one can also adopt this theory of punishment.
Killing the person in the name of justice is also the violation of the rights of a person. Opposing the view of capital Punishment is not something that we support the crime, but the point is to implement proper rules and laws for the criminals attempting such crimes. The concept of Death Penalty should be abolished. The concept of Death Penalty is also taken from the Deterrent Theory of Punishment. Death penalty reduces the scope of improvement of making improvement in an individual. We can also say that deterrent theory has more disadvantage. Reformative Theory brings several reforms in the society. As mentioned above there were many countries who are implementing proper laws for such crimes. In India this punishment can be abolished. In china, the Death penalty is practiced more.
1.https://www.britannica.com/yopic/capital-punishment 2.Case-RajendraPrasadVStateofUP1978AIR916 3.BacchansinghvStateofPunjab,AIR1980SC898 4.Macchisingh&othersvStateofPunjab,1983AIR957 5.SantoshkumarsatishBhushanBariyarva,stateofMaharashtra,2009(6SCC498) 6.Article21(IndianConstitution) 7.https://www.criminaljusticedegreesschools.com/resources/capital-punishment-focus/ 8.https://www.deathpenalty.com 9.www.indiankanoon.com 10.https://www.humanrightscareer.com
Raksha Anil Zawar
BalajiL aw College, Pune