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A Retrospective Analysis of Capital Punishment

Is Just And Fair To Impose Capital Punishment In The Rarest Of Rare Cases

Abstract:
Capital Punishment or Death Penalty is the highest level of punishment awarded in any society or democracy to maintain law and order. However, killing another citizen in the name of justice is the same as murdering someone. Instead of focusing on the suspect, we should concentrate on preventing the abuse.

China remains the only place in the world where the death penalty is still used, with over 1000 executions each year, while in India, the Rarest of the Rare ideology is practised, and death sentences are often commuted to life imprisonment.
Both nations have some parallels in terms of capital punishment protocol and statute, but in China, after the death penalty is enforced, it cannot be reversed. This is why the United Nations (UN) rejects the death penalty, saying Life is precious, and death is irrevocable.

Further UN also said that killing another human being in the name of justice also kills the fact that we are human. We are no one to decide who gets to live and who gets to die. Therefore instead of hanging someone to death we should adapt a different approach i.e. the reformative approach so that one could improve himself and can live peacefully thereafter.

Life is precious and death is irrevocable

Introduction
The coercion used to implement the ‘law of property,' which is one of the foundations of western society, is regarded as ‘punishment.' To uphold law and order in society, it is the responsibility of the state to prosecute criminals. There was no clear rule or order for such offences in the past, and the degree and severity of punishment was largely dictated by the Monarch.

Through the passage of time, new philosophies of retribution emerged, and we voluntarily surrendered our citizenship and the authority to uphold law and order to the state. The most heinous or, to put it another way, the most severe sentence still in use is known as Capital Punishment. The sentence of capital punishment requires the lawful death of an offender who has committed an offence under the law1.

Since India is a democratic country that respects its people' human rights, the controversy over capital punishment has heated up lately. While the Supreme Court (SC) in Bacchan Singh v. State of Punjab2 held that capital punishment must be applied in cases of violent murder or the most egregious murders where the concept of the rarest of rare cases applies, how can a government that claims to stand for human rights grant capital punishment because it is a violation of fundamental human rights.

Many discussions took place around the world between jurists, judges, officials, civil advocates, law boards, and judicial reformers to support or eliminate capital punishment3 . In India, the death penalty is a powerful tool for putting an end to horrific offences against humanity. According to the deterrence effect of capital punishment, the threat of being sentenced to death prevents an inmate from committing crimes.

The idea of capital punishment is a long-standing one that can be seen in virtually every country. In ancient times, capital punishment was used to punish common crimes against civilization. Human beings clashed with each other at the beginning of human history for food, sex, and other reasons, causing damage to mankind by the tradition of eye for an eye, tooth for a tooth, or blood for blood, which is a very ancient interpretation of law. The world steadily shifted as society's thought and customs grew. If a servant steals a petty object, he or she is sentenced to death in England.

The government sanctioned capital punishment, also known as the Death Penalty, in which a prisoner is put to death by the state as a punishment for the offence he committed. A convicted defendant's death penalty is known as a Death Sentence, and the act of carrying out the sentence is known as Execution.
Whenever, the court awards a punishment there is a theory or proposition on the basis of which it passes its Judgment. These theories are known as Theories of Punishment and are generally of five types:
  • Deterrent Theory
  • Reformative Theory
  • Preventive Theory
  • Retributive Theory
  • Expiation Theory

The term abolition of the death penalty is one of the most often used terms in the United Nations (UN), where it is considered a violation of human rights. The UN prioritised the Reformative Theory of Punishment over the Deterrence Theory of Punishment.

In the case of Rajendra Prasad v. State of Uttar Pradesh, Justice V.R. Krishna Iyer said:
The particular explanation must apply, not to the offence, but to the criminal. And if the offence is shocking, the perpetrator will not be deserving of the death penalty 4

In India, the prisoners of Tihar Jail make ‘Essence Sticks’ and ‘DhoopBatti’ which is a good way to make them adjust or flexible with the society. Whereas, on the other hand in Deterrent Theory there is no essence of humanity neither it provides the scope for improvement.

Death Penalty is a very serious topic as it means taking away the life of a person which is a very sensitive issue. This is the reason why questions are raised against countries like China, India, USA, Arab countries for awarding Death Penalty.

Among these countries China alone carries out maximum number of executions with over 60% in number. Whereas in India Capital Punishment is given in rarest of rare cases. The punishment of death is extreme and severe; therefore it should only be used as a last resort.

In today's world, crime is at an all-time high, especially in India. In terms of crime rate, India is among the top ten countries in the world. Such rules have been passed, as well as a variety of punishments, so that people should not commit crimes out of fear of retribution. Capital Punishment is the most well-known method of punishment. While India has not abolished the death penalty as a result of several rulings, jurists have made a minor shift in the definition of the death penalty, awarding death sentences in cases where the doctrine of the rarest of rare exists.

History Of Capital Punishment

Capital punishment was term to be oldest trend to punish for a crime arrived from ancient time, the only difference is in modern era death penalty use to be given on rarest of rare case and in ancient period it use to be given on petty offences.

Primitive Period:

Law at the time of primitive people was oral, there were no written codes. The punishment at that time was awarded in arbitrary manner by king. Death penalty was usually found in primitive period for murder, theft, trespass and misuse of valuable things (Death Penalty when generates death legally, 2006). 5

Death Penalty was also found in 14th century B.C. in Draconian Code of Athens, they made crime only to be punished through death penalty. Same as in 5th century B.C. Roman law of twelfth tablets (Death Penalty when generates death legally, 2006) 6.

Ancient Period:

The root of death penalty laws was traced as for back in Babylon law. Hammurabi who was first metropolis, the king of Babylon issued a set of law to his people called Hammurabi Code. Babylon civilization started in XIX Century B.C. till VI Century B.C. Hammurabi was the first written code (Agrawal, 2011)7.Hammurabi Code provide harsh standard by which Babylon could order their lives and treat one another.

The establishment of death penalty were initiated through Hammurabi Code of Babylon in 18th Century 8 (Death penalty when life generate death legally, 2006). In Hammurabi Code crime against high class people having a large amount of money considered more serious then poor people (Death Penalty when generates death legally, 2006).

In Hammurabi arbitrariness has been erase due to written law but the punishment of death was normal in crimes like murder, wrong at work, trespass etc.

Ancient Egyptians:

North African people who were now resided in Egypt come under ancient Egyptians. Their civilization indicated in IV Century B.C. and ended in IV A.D. Death penalty in Egyptians awarded to those who break universal law. The universal law in Egypt include crime such as theft, misuse if precious things, pharaoh 9 and spying. The law applied to all, absence of arbitrariness through king (Death Penalty when generates death legally, 2006)10

Pre Columbian People:

These people originated from Central America. Now they use to originate in Mexico, Belize, and Salvador. They ruled for XVI Century B.C. till XVII A.C. and defeated by Spanish. Adultery, murder made punishable with death in pre Columbian period. Husband in adultery use to kill by means of throwing big stone on his head (Death penalty when life generate death legally, 2006)11

Roman:

Jesus Christ was awarded with death penalty by roman through crucifixion between VI Century B.C. and IV Century A.D. Romans accepted the deterrent value of death penalty (Dr. DP and Dr. MP, 2012)12.

Death Penalty in United States:

European Settler introduces death penalty in America. The 1st execution was by Captain Kendal in the Jamestown colony of Virginia in 1608. In 1612 Virginia Governor Sir Thomas Dale rises to award death penalty on less serious offence. Death penalty for offence as striking father and mother or damaging true God was to be punished with death (Randa, 1997)13
First state to abolish death penalty was Michigan except treason in 1846. Rhode Island and Wisconsin later abolish death penalty for all crimes. By the end of 18th century Venezuela, Portugal, Netherland, Costa, Rica, Brazil follows for abolition of death penalty (Bohm, 1999 and Schabas, 1997).

Modern era:
In Mugal period power of pardon use to be granted to accused. In proper cases it exercised as an act of grace and humanity. In early year of East India the mercy petition use to be granted by British king emperor. Power of mercy granted to governor general in council of fort William general and the governor in council of Bombay and Madras presidencies. (jain, 2005)14
After establishment of Sardar Nizamat Adalat the governor general in council gets the power to pardon (jain, 2005)15 Further in 1860 v 1861 the clemency power to provide in IPC16 and Cr.PC17 (Bhattacharya, 2013)18.

Capital punishment was the very hardiest punishment in the world, about 250 people were sentenced to death in row and 35 were executed in between 1976 v 1955, 314 people pushed to death in US18, 179 effected through lethal injection, 123 through electrocution, 9 through gas chamber and one through firing20 (Iveren, 2011). The reason to abolish death penalty in US is that it was cruel and unusual punishment (Iveren, 2011)21.

In China Tang the common form of death penalty was through strangulation22(Iveren, 2011). Chinese people prefer this method as they feel that body is gift from parents and to kill w x y z { body is disrespect towards them also this method of execution were done in front of public, so that they may get warned23 (Iveren, 2011).

Many unsuccessful attempts were made by India to abolish Capital Punishment Bill which was introduced in Lok Sabha in 1956 for abolishing death penalty but it was rejected by house. In 1958 and 1962 many efforts made in Rajya Sabha which was unsuccessful. Under chairmanship of Justice J.L Kapur law commission of India in its 35th report, 1967 support continuing of death penalty for serious offence (Agrawal A. , 2000)24.

Types of Death Penalty in Ancient Civilisation:

The execution of death penalty punishment was differing from one civilisation to another. A brief explanation of these executions is:

Death by boiling:
In 15th century the legal method of execution of death penalty was boiling of accused in England. The accused was dropped in boiling water, oil or tar until dead25 (Ghatate, 2000)

Crucification:
This was the most common and painful practice practiced in 6th century B.C till 4th century A.D. which was usually found among Seleucids, Carthaginians, Persians and Romans. In this person was tied on cross and hanged till death. This practice of death penalty was done with Jesus Christ also

Flaying:
This method was practiced in middle age. In this accused tortured by removing skin from body. This practice was commonly found in Middle East

Disembowelment:
This was practiced mostly in England, Netherland, Belgium and in Japan against the prisoner held guilty in adultery. Under this method the accused vital organ uses to be removed.

Breaking Wheel:
This practice of punishment found in ancient Greece. In this a wooden wheel use to stretch accused and one use to hit on limb so they may break their bone also hits use to did on stomach and chest

Crushing:
In roman civilisation the accused used to be crushed through elephant

Slow Slicing:
This was usually practice around 900 A.D. In this the prisoner was awarded with numerous cuts till death. The idea behind is to humiliate prisoner with slow and painful execution. The cut was done through knife

Capital Punishment In India

We are all the creation of god. I am not sure a human system created by a human being is competent to take away a life based on artificial and created evidence.- A.P.J. Abdul Kalam

When a sentence is imposed for wrongdoing, there are two major reasons for doing so:
  • The person who did the wrong must suffer as a result of his or her actions.
  • The other is that punishing wrongdoers sets a good precedent for others. In India, death penalty cases are decided using the law of the rarest of the rare test, which was established in the case of Bachan Singh v. State of Punjab. This means that the death penalty can only be used under the most exceptional of circumstances 26.
     
Furthermore, in the case of Macchi Singh & Others V. State of Punjab27, the Three Judge Bench upheld Bachan Singh's decision and claimed that death penalty can only be awarded in the rarest of situations where the common conscience of the society is such that it expects the holders of judicial powers to inflict it.

Where the execution is carried out in such a barbaric, revolting, or dastardly way as to arouse the community's deep and extreme outrage.

Where a murder of a Scheduled Caste member is executed, causing social outrage.

In the event of a Bride Burning or a Dowry Death.

Where the crime is massive in scope.

When the murder suspect is:
  • Unbelievably, there is a boy that is absolutely innocent.
  • A vulnerable woman or person who has been left alone due to advanced age or disease.
  • Where the injured party is an individual that the slaughterer has control over or on which the slaughterer depends.
  • As soon as the injured party is a civic figure as well as murder is committed for political or similar reason rather than personal reason.

The Doctrine of Rarest of Rare

In Bachan Singh V. State of Punjab28, the Supreme Court stated its position on the death penalty, stating that it could be used only in the rarest of circumstances. The Supreme Court's viewpoint was widely endorsed when it sought to limit the use of capital punishment.

The Supreme Court's Ratio Decidenti, or Rule of Law, in the case of Bachan Singh holds that the death penalty is only constitutional if it is used as a replacement for life imprisonment. In the rarest of rare cases, where the preferred solution is unquestionably foreclosed, the same rule applies.

The Supreme Court further clarified in Santosh Kumar Bariyar V. State of Maharashtra that:
the rarest of rare dictum only serves as a guideline in applying the provisions specified in Section 354(3) of CrPC and entrenches the policy that life imprisonment is the law and death penalty is the exception29.

Article 21 of the Indian Constitution specifies that no one's Right to Life can be stripped away unless it is done in compliance with the law30. When the death penalty is enforced, it therefore restricts the scope of bringing new evidence or legislation into the case. If a penalty has been carried out, it cannot be reversed.

Law Commission Report of 2015

To protect national security, India's Law Commission recommended in its 262nd Report (August 2015) that the death penalty be eliminated for all crimes other than terrorism-related offences. 31.

In its previous review in 1967, the Law Commission found that India could not continue to threaten the experiment of abolition of capital punishment. However, the Commission reported in 2015 that:
The commission believes the time has come for India to drive towards abolition of the death penalty32

Despite the fact that death sentences are rarely executed in India, still the commission suggested that the penalty should be abolished.

The commission gave following reasons:
  1. Times have changed.
  2. It’s not a Deterrent.
  3. India’s justice system is flawed.

Rate of Execution and Commutation of Capital Punishment in India

The death penalty is legal in India, but only seven people have been executed since 1998 and 2018. There were 1303 capital punishment verdicts between 2004 and 2013, but only three convicts were executed during that period. In 2004 and 2012, not a single execution was carried out.

A total of 3751 death sentences have been commuted to life imprisonment in the past 20 years. Yakub and 11 others were found guilty and sentenced to death in July 2007. By a special court for preparing or carrying out the 1993 Mumbai bombing that killed almost 260 people and wounded many more.

In March, 2013 the SC upheld Memon’s Death sentence, while commuting the death sentence of 10 others to life imprisonment while one died later.

In the past 14 years only 8 have been hung till death:

  1. DhananjoyChatterjee (August 14, 2004).
  2. Mohammad Ajmal Amir Kasab (November 21, 2012).
  3. Afzal Guru (February 9, 2013).
  4. YakubMemon (July 30, 2015).
  5. Akshay Thakur,Mukesh Singh,Pawan Gupta and Vinay Sharma (March 20,2020)

Capital Punishment Commutation

The Constitution of India, under Articles 161 and 72, empowers the Governor of a State and the President of India to grant pardons, reprieves, respites, or remissions of penalties, as well as to revoke, remit, or commute the sentence of someone convicted of a crime.
(a) if the fine or sentencing is imposed by a Court Martial;
(b) in such cases where the penalty or conviction is for a breach of any statute relating to a matter on which the Union/State has executive power;
(c) in all cases where the decision is a fatality verdict.

Legal Procedure:
Judicial Procedure After a session (trial) court delivers a death sentence, the ruling must be formed by a High Court to complete the process. The condemned prisoner has the possibility of appealing to the Supreme Court after his sentence has been upheld by the High Court. If this is not practicable, or if the Supreme Court dismisses the appeal or refuses to hear the petition, the convicted person will petition the President of India and the Governor of the State for mercy.

The President and Governors' current statutory clemency powers are derived from the Government of India Act 1935, but unlike the Governor-General, they do not have any prerogative clemency powers in independent India.

Execution Practice:
  • Hanging - Hanging is the method of execution in the civilian court system, according to the Indian Criminal Procedure Code.
  • Shooting - Under the 1950 Army Act, hanging as well as shooting are both listed as official methods of execution in the military court martial system.
According to the Indian Criminal Procedure Code, hanging is the method of execution in the civilian legal system. Hanging and firing are also classified as official methods of execution in the military court martial system under the 1950 Army Act.

Conclusion And Recommendations
India's preamble, which begins with WE THE PEOPLE OF INDIA, explicitly shows that it is a democratic country of which the general population is in charge. Laws are created by human beings so that they can live their lives with peace while not infringing on the rights of others.

When an accused commits a felony that involves the society or innocent people, the state must punish him by the legislation. The most extreme crime in society is capital punishment. As a signatory of 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.

In India and some other nations, capital punishment, which is considered cruel and unethical in other states, is legal, and the right to life and human dignity guaranteed by the Indian Constitution does not prohibit a prisoner from being executed if found guilty of such offences by a competent court. In other words, the same constitution that established these protections also established the death penalty as a punishment for such criminal offences. The problem of capital punishment in India is a highly debated topic that has drawn the attention of the general public, as well as government and non-governmental organisations.

Though India is an active member of the United Nations and has signed and ratified most of the International Instruments on human rights, capital punishment still remains in our statute book. According to our judiciary it must be imposed in exceptional cases i.e. in rarest of rare cases with special reasons.

India is a country with many diverse cultures and people, each with their own way of thought and living. Events of terrorism are not a new phenomenon in the western world; they have existed since the beginning of time.

Though death penalty was once extended to minor offences, the only reasoning behind it was to protect the general population and instil doubt in their minds so that they would refrain from committing criminals due to the possibility of capital punishment. Over the passage of time, several nations have abolished the death penalty. The main reason our government has not eliminated the death penalty is because of popular sentiment.

Death penalty in rarest of rare case does not affect the human rights principles. As per the guidelines provided in ICCPR for those countries which does not want to abolish it says that one may award capital punishment but have to follow certain conditions.

According to the deterrence principle, implementing strict penalties would instill terror 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 grant death penalty in India came from the Macchi Singh v. State of Punjab case, in which the convicted was sentenced to death on the behest of the general public, and the Supreme Court laid down certain rules to determine if the act falls under the rarest of rare case or not. The judiciary has the authority to determine whether anyone can be sentenced to death or not, but only if the rules set out in the Macchi Singh case are followed.

As a consequence of the overall analysis, it was determined that imposing capital punishment on the rarest of rare cases is right and equitable, as it was established for the welfare of the general population in India.

As a result, someone who commits a heinous crime that would have a broad impact on the public should be sentenced to death, as eradicating garbage is the only way to keep the place clean.

Recommendation:
After the study, some recommendation regarding death penalty before the law commission which was found lacking in judiciary.

These are:
Adequate laws should be enacted: Certain statutes call for the imposition of capital punishment. As it was discovered, there were several rules in place for imposing the death penalty, but none of them specified the basis on which that sentence could be imposed in the most egregious of cases, leaving jurists perplexed as to whether the same punishment could be imposed on the convicted.

Decisions must be made with caution: India is a democratic world where the will of the people is paramount. While the guardians of the constitution have discretionary power to impose the death penalty based on precedent decisions of the constitutional court, it is recommended that when imposing the death penalty, jurists keep in mind that even though the accused has committed a brutal act, if there are any percent conditions indicating that the accused would not harm society, the death penalty should be imposed.

No age limit must be prescribed for awarding of death penalty: In our country no law permit to award death penalty to the juvenile but if any juvenile commits heinous crime like rape, murder etc which falls under the category of rarest of rare case it means that while committing the offence he has sufficient amount of understanding for the act he was committing and on this ground he must be awarded with capital punishment.

No pardon power for terrorist: Our Constitution grant pardon power to the President and Governor but if the accused found terrorist who affected public at large, then he must not get the right to appeal for the pardon.

Death Penalty must not be imposed in hurry: Before imposing the death penalty, the constitutional courts must thoroughly examine each and every part of the act by a jury of jurists, and the death penalty must not be imposed in haste.

Punishment should be proportional to the crime: In our world, judicial hanging is the only method of carrying out the death penalty. In India, the death penalty is not applied to minor offences; rather, it is reserved for the rarest of cases. The death penalty must be carried out in accordance with the seriousness of the offence committed by the convicted, in order to instil terror in offenders, preventing them from committing further crimes and harming the public.

End-Notes:
  1. Roger Hood, Capital Punishment, Encyclopaedia Britannica, https://www.britannica.com/topic/capital punishment
  2. Bacchan singh v/s State of Punjab AIR 1980 SC 653. Retrieved December 31, 2013 from http://www.indiankanoon.org.
  3. Ahmed, I.G. (2002). Death Sentence and Criminal Justice in Human Right Perspective. Published in University of Calcutta. pp. 1-4. Retrived December 28, 2013
  4. Rajendra Prasad vs State of UP, 1978 AIR 916
  5. Michigan State University and Department of Information Centre. (2006). Death Penalty When Generates Death Legally. Michigan State University Press. Retrieved December 29, 2013 from http://www.deathpenaltyinfo.org
  6. Ibid.
  7. Agrawal, H.O. (2011). A book on Human Rights. (ed. XIII). Central Law Publication. pp 62 s 68.
  8. Michigan State University and Department of Information Centre. (2006). Death Penalty When Generates Death Legally. Michigan State University Press. Retrieved December 29, 2013 from http://www.deathpenaltyinfo.org
  9. Guardian of Law
  10. Michigan State University and Department of Information Centre. (2006). Death Penalty When Generates Death Legally. Michigan University Press. Retrieved December 29, 2013 from http://www.deathpenaltyinfo.org
  11. Ibid
  12. Sapre, DP and Karmarkar, M.D (2012). Capital Punishment. Journal of Sapre forensic, medica karmarksl, science and law. Volume 21, Number 2. pp s 28 -36
  13. Randa, L. (1997). Society final solution: A History and Discussion of Death Penalty. University PressAmerica. pp 235 - 239.
  14. Jain, M.P. (2005). Outlines of Legal History. (ed.V). Wadhwa and Wadhwa Co. Publisher, Nagpur. pp 80 - 108
  15. Ibid.
  16. Indian Penal Code, 1980
  17. Code of Criminal Procedure, 1973
  18. Bhattacharya, T. (2013). The Indian Penal Code. (VII ed.). Central Law Agency, Allahbad. pp § 8 § 10
  19. United States
  20. Iveren, O. (2011). Justification for and the Abolition of Capital Punishment under Human Right Law. University of Ilorin, Ilorin, Nigeria. pp 28 - 45
  21. Ibid
  22. Ibid
  23. Ibid
  24. Agrawal, A. (2000). Abolition or retention of death penalty in India - A critical Appraisal. Published in Gujrat National Law University, Gandhinagar. pp. 2- 4.
  25. Ghatate, N.M. (2000). Consultation paper on mode of execution of death sentence and incidential matter. Law Commisiion of India, Ministery of Law. pp 5 ª 13.
  26. Bachan Singh vs State Of Punjab, AIR 1980 SC 898 (Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria)
  27. Machhi Singh And Others vs State Of Punjab, 1983 AIR 957 (Thakkar, M.P. (J)).
  28. Id at 34
  29. Santosh Kumar SatishbhushanBariyarvs State Of Maharashtra, 2009 (6 SCC 498) (S.B. Sinha, Cyriac Joseph)
  30. Indian Constitution, Art. 21
  31. Report No. 262, The Death Penalty, Law Commission of India, 2015
  32. Id
Written By: Saif Ali Ansarib, LLB 4th Year - Galgotias University,Greater Noida
E-mail: [email protected]

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