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Capital Punishment; Should It Be Abolished Or Not

Should capital punishment be abolished or not? Well! When addressing a topic like this, one must consider both the pros and cons of the element of 'death punishment,' which may be necessary in certain instances. To fully comprehend the solution to the question, we must first review the fundamentals of penology[1].

The word "penology" comes from the Latin root "poena," which means "punishment[2]." Wherein Penology, literally translated, is the study of a criminal and legal sentence. Penology is part of the larger field of study known as criminology, or the study of crime[3], and even more generally, sociology, or the study of how people interact in society.

Penology, often known as Penal Science, is a branch of criminology concerned with the theory and practice of society in its efforts to suppress criminal activity; some state that penology is described as the study of prisons, which have been used to punish criminals in some form or another for hundreds of years. Some claim that the focus of penology is exclusively on prison management and administration, whilst others argue that the focus is broader and covers how crimes are defined and punished.

Penology And Punishment Psychology

In modern use, a person studying penology may choose to focus on the many systems of punishment employed by cultures, such as incarceration, and the philosophy underlying them. Penologists study how and why punishment for the same crime differs from nation to country. In certain civilizations, for example, robbery is punished by cutting off the thief's dominant hand. A criminologist would be curious as to why this penalty is applied for this specific offense in this culture and civilization. He may delve into what it means for the sentenced thief to return to society, now minus a hand.

He may be interested in the function of the person in charge of delivering such punishment, as well as how such punishment came to exist for that crime in that community in the first place.

The death penalty, as well as the rationale for its usage and the way in which it is carried out, is an even more significant topic for penologists to research. The death sentence is not used in every country, and its application varies across international borders and across time. Some countries, including some US states, have recently abolished the death penalty as a form of punishment. Its usage has evolved in public opinion throughout the years, and it is continually being revised.

Penology And Its Characteristics

Penologist Dr. P.K Sen[4] defines penology as: "penology lays down the fundamental principles that should guide the state, or the sovereign authority in framing the schemes of the punishments"

When there was no real criminal justice system, criminals were punished by flogging, mutilation, beheading, severing of limbs, branding, stoning to death, pillory, expulsion from society, house detention, and amercement (fine). However, adequate research revealed that there was no link between the penalty meted out to an offender and the offence he or she committed. In other words, the penalty was not in compliance, or there was no reasoning behind the punishment imposed.

Now, the following sorts of punishment can be imposed by a court on a convicted individual under Section 53 of the Indian Penal Code: death penalty, life imprisonment, description, rigorous, or simple imprisonment, confiscation of property, and fine.

Theories Of Punishment:

Retributive Theory:

The Retributive Idea of Punishment, sometimes known as the 'Theory of Vengeance' by many in society, is the simplest, but callous, theory of inflicting a punitive term on a wrongdoer. It is founded on a relatively modest tenet known as Lex talionis, which translates as "an eye for an eye."

Deterrent Theory:

In the Deterrent Theory of Punishment, the term "DETER" implies to refrain from doing anything wrong. The primary goal of this philosophy is to "deter" (prevent) criminals from attempting or repeating the same act in the future. As a result, it asserts that the goal is to prevent crime by instilling fear in individuals or the entire community by punishing the guilty.

Preventive Theory:

The preventive theory of punishment tries to deter future crimes by immobilizing criminals. The primary goal of preventative theory is to alter the offender permanently or temporarily. Criminals are sentenced to death or life imprisonment under this approach.

Reformative Theory:

The Reformative Theory is based on a postulate. According to this idea, the goal of discipline should be to modify the attitude through the individualization technique. It is based on the humanistic principle that regardless of whether a wrongdoer commits a transgression, he continues to be a person. In this way, an effort should be made to modify him/her throughout his/her detention.

Roles/Aims Of Penology:

  • To shed insight on the ethical foundations of punishment, as well as the motivations and goals.
  • To conduct a historical and comparative research of criminal laws and practices.
  • Penology is a collection of studies, some of which deal with the goals and moral or societal justifications for punishment.
  • Penology may also be approached from other perspectives.
  • Administrative penology is the study of several institution-related issues.
  • Scientific penology is the study of scientific procedures such as rehabilitative treatments.
  • Analytical penology is the study of present penal policies.

Arguments For Capital Punishment

No legislation, policy, or regulation can totally please the entire society since there will always be some individuals who oppose or support it; hence, there are arguments for and against capital punishment.

The essential premise of retribution[5] and punishment are as follows:
  1. All criminals ought to be punished.
  2. Only those who are guilty deserve to be punished.
  3. People who commit crimes need to be punished in proportion to the gravity of their offense.
Arguments for capital punishment:
  • It acts as a deterrent[6].
  • It gives due justice to the aggrieved.
  • True justice necessitates that individuals suffer for their transgression, and that they suffer in a manner suitable to the offense.
  • Each criminal should receive the punishment that their crime merits, and in the case of a murderer, the punishment that their crime deserves is death.
  • The notion that executing convicted murderers will dissuade would-be murderers from killing others is frequently used to justify capital punishment.
  • Supporters of the death sentence think that people who commit murder have forfeited their right to life since they have taken the life of another.
  • Capital punishment is a legitimate kind of retaliation, expressing and reinforcing not just the victim's family' but all law-abiding people' moral outrage.
  • It has a particularly strong deterrent impact on potentially violent criminals for whom the possibility of incarceration is insufficient.

Arguments against capital punishment:
  • Capital punishment is counterproductive in terms of moral message since it legitimizes the precise behavior that the law aims to repress killing.
  • Because the appeals procedure for death sentences is lengthy, persons sentenced to death are sometimes brutally made to suffer extended periods of uncertainty about their fate.
  • When applied to minor offenses, capital punishment is wrong since it is completely disproportionate to the harm done.
  • Capital punishment breaches the right to life of the convicted individual and is essentially inhumane and demeaning.

Opinion Regarding Awarding The Capital Punishment

In India, death punishment is a legal penalty for certain criminal offenses under the Indian Penal Code, 1860, and related legislation, and is carried out by hanging by the neck as stated in Section 354 (5) of the Code of Criminal Procedure[7], 1973. The death penalty is rarely employed and reserved for extraordinary situations, according to Section 354 (3) of the 1973 Code[8]. This rule also limits the exercise of judicial discretion in this regard. In order to decide the appropriate sentence, a court must measure the offender's personality against the circumstances, events, and reactions.

In the landmark decision of Bachan Singh v. State of Punjab (1980) [9], the Supreme Court of India held that the death penalty does not violate Article 21[10] of the Indian Constitution if it is imposed only in the most severe of situations.

Facts Of The Case (Bachan Singh V. State Of Punjab (1980))
This is a historic case decided by a five-judge bench of the Supreme Court. The Supreme Court declared significant restrictions on the death sentence in this case by establishing the "rarest of the rare" concept. "A genuine and enduring concern for the dignity of human life presupposes resistance to taking a life through the instrumentality of law," the Supreme Court stated. That should be done only in the rarest or most rare circumstances where the other perspective is absolutely precluded."

By a vote of 4:1, the Supreme Court confirmed its previous ruling, holding that the availability of the death sentence as an alternative punishment for murder under Section 302[11] is not irrational nor against the public interest. It contradicts neither the letter nor the spirit of Article 19[12] of India's constitution. It is constitutionally correct. The exercise of discretion under section 354(3) of the CRPC, 1973 should be limited to extraordinary and severe circumstances, and the imposition of the death penalty should be reserved for the rarest of rare situations.

The death sentence has occasionally revived in national debate. In Jagmohan Singh v State of Uttar Pradesh [13], the Supreme Court addressed the question of the constitutionality of the death penalty for the first time, holding that "the death sentenced does not extinguish all the freedoms guaranteed under Article 19(1) and it was also held that it was not violative of Art 14 of the Constitution on the ground that judges are given unguarded and uncontrolled discretion to impose either capital punishment or imprisonment for life."

As a result, the death penalty became an exception rather than the rule." However, the judgement in Bachan Singh's case did not expand on the criterion for selecting "rarest of rare" circumstances. However, the judgement in Bachan Singh's case did not expand on the criterion for selecting "rarest of rare" circumstances. The Bachan Singh case likewise does not specify what constitutes a "rarest of rare instances."

While discussing the applicability of the 'Capital Punishment' in the rarest of the rarest cases, it is important to note that the 'Capital Punishment' does not infringe on the accused's rights, nor is it awarded in all cases; as previously stated, it is only awarded in cases where the crime committed by the accused is so severe and gruesome that no alternative punishment can be awarded to the accused in order to compensate for the loss the accused caused in the victim's life or the people concerned by him/her.

In cases such as the Shabnam Hashmi and Nirbhaya rape cases, the crime was committed not only against the individual but also against society at large, and the main distinction between criminal and civil cases is that criminal offenses are committed against society while civil offenses are committed against an individual. As a result, when the accused commits such serious offenses that the entire society reacts to or is impacted by them, the punishment should be proportionate to the impact of the crime on the entire society, not just the victim.

There will be various reasons for revoking capital punishment as a form of punishment, but no law, no decision, and no rule/policy can satisfy the entire 100% population, so there will always be people criticizing capital punishment, but our focus when awarding the punishment to the accused is to comprehend and relate to the victim's pain and agony... Did they also deserve it?

  1. the study of the punishment of crime and of prison management.
  2. Pain, suffering, loss, incarceration, or any other type of consequence bestowed on a person for an offense committed by him/her is referred to as punishment.
  3. Crime is defined as an act that is outlawed by the state, and anyone who does such an act will face penalty.
  4. Dr. P.K. Sen, a well-known expert in Indian penology, has provided a comparison of the ancient and current penal systems.
  5. Retributive justice is a punishment theory that holds that when an offender violates the law, justice demands that they suffer in return, and that the reaction to a crime is proportional to the violation.
  6. In connection to criminal offending, deterrence is the notion or hypothesis that the possibility of punishment will dissuade people from committing crime and hence lessen the probability and/or amount of offending in society.
  7. When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
  8. When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
  9. AIR 1980 SC 898
  10. Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
  11. Permission to conduct prosecution Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader.
  12. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
  13. (AIR 1973 SC 947)

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