Debating the Capital Punishment

This article has been written by Shivani Kumari, a student of Lloyd law college, Greater Noida. This article will impress upon all the aspects of capital punishment which is interchangeably used with the word death penalty.

INTRODUCTION

Capital punishment is one of the integral parts of the Indian criminal judicial system. The practice of executing a criminal to death for a heinous crime after conviction by a court of law for a criminal offence is known as capital punishment. It is the most severe legal form of punishment in India. It is awarded in the cases of most heinous and grievous crimes against humanity. Capital punishment is a return of violence for violence which is also known as “an eye for an eye”. For centuries it is believed in India that a person who has done wrong should suffer for it and inflicting capital punishment on wrongdoers discourages others or creates deterrence in the society and abides others from doing the same wrong. The term death penalty is most of the time used interchangeably with capital punishment, however, a penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.”

Capital punishment is regarded as one of the most sensitive subjects of debate in India. The concept of the abolition of capital punishment has now been spread globally however India continues to cling such harsh punishment.

Evolution of Capital Punishment in India

From ancient times the capital punishment was imposed for multiple numbers of offences in India. It was prevailing from the times of Manu, who mentioned in his Manusmriti, “ To refrain people from sinful murders, the death penalty was necessary, otherwise anarchy will prevail”. All the invaders of India whether Aryans or Mughals, everyone some or on other ways had prevailed capital punishment in their administrative systems. Even Britishers believed that hanging to death is the only legalized form of inflicting punishment to the offenders.

From the pre-independence era till now, our legal system has come a long way forward and has undergone various changes in it. After Independence, till 1955, capital punishment was very common as the punishment for murder. If anyone commits the offence of murder, he will be simply awarded the death penalty, but in the year 1955 sessions judge were given a discretionary power to either give capital punishment or life imprisonment for an offence. This was continued till 1973 when the code of criminal procedure (CrPC) was an amendment, Parliament made it mandatory for the sessions judge to provide specific reason while imposing capital punishment or life imprisonment for the offence of murder. Further, in 1980, a landmark judgment was passed by the Hon’ble Supreme court of India in the case of Bachan Singh v. the State of Punjab. In this case, the court held that capital punishment can only be imposed on a ‘rarest of the rare case’. This means that the alternative sentence of life is unquestionably foreclosed. In Machhi Singh v. the State of Punjab, the court provided some exceptions to the earlier judgment of Bachan Singh’s case. These exceptions are:

If the murder is committed in an extremely brutal manner to eros extreme initiation of the community
If the murder is committed by a motive which evinces total depravity and meanness
If the crime is enormous in proportion

Objective of Punishment in India

The Indian judicial system mainly has three objectives to provide punishment to a person who has been involved in an offence.

Retribution: It means punishment given for the action or the offence committed by a person. It can be any form of punishment including penalties for the wrongs. This is applicable for any wrong in the eye of law.
Reformation: This is a type of punishment in which the judiciary tries to change the criminal nature of the accused and retransform him as a better person so that the person would not repeat any crime or offence in the future. The theory of reformation is based on the obligation of a society to reform a convicted person and after his reformation accept him as a normal citizen of the society. It is done to provide another opportunity for the person to live a better life. The concept of reformation is not followed under capital punishment because in capital punishment a person is completely denied his right to life, the offender does not continue to leave so he does not get any another opportunity to change himself
Deterrence: It is the action taken by the judiciary to discourage an act or crime by imposing harsh punishments. It is done by creating a fear of the consequences and the punishment imposed under this is mainly the death penalty. This theory was adopted so that the people living in a society, other than the accused also learn that particular misconduct in the society can even lead to the death penalty and hence, this will fulfil the objective to create fear in the minds of people. But as if now there is not sufficient proof to show that the death penalty operates as a greater deterrence then life imprisonment.

Protection Guaranteed under Constitution

These protection provisions point out the fact that the death of prisoners has been humanized under the constitution itself. These are the following protection provisions:

Article 21: No person shall be deprived of his life or personal liberty except according to the procedure established by law.

In Maneka Gandhi’s case, it was held that Article21 efforts protection not only against executive actions but also against legislations. It means that a person can be deprived of his life even under capital punishment only if there is a law which is just, fair and reasonable.

Article 72: Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases

It states that the president of the country can pardon even the death sentence while the governor in a state cannot. It empowers the President with the power of pardoning. It is also called the pardoning power of the President.

Article 134: Appellate jurisdiction of Supreme Court in regard to criminal matters

It provides that there is a right of appeal from the High Court to the Supreme Court. This is applicable is any case where capital punishment was imposed on an accused in the reversal of an acquittal order.

Scope of Judicial Review

This is the last scope available to an accused. It is applicable when the president denied the grant for pardon and if the presidential decision not to grant pardon is arbitrary irrational and discriminatory.

CONCLUSION

Capital punishment is the last resort available for punishing an accused. Many countries are against capital punishment because of the possibility of a mistaken conclusion by the judiciary. If on a subsequent occasion it is discovered that the judgment which was passed is a mistaken conclusion in that case the death penalty is un-rectifiable, the person is no more and judiciary will fail for hanging an innocent to death. Capital punishments are sometimes even passed by the arbitrary nature of the judges. It means sometimes without having concrete evidence and reason, on the personal choice or discretion of the judge death penalties are imposed. The same has been backed by law commission in the year 2015. There are constitutional remedies available but sometimes they are not able to protect the offenders from the imposition of capital punishment. Capital punishments even do not satisfy its objective of reformation and creating deterrence in society.

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