The prime rationale behind providing punishments is to make the wrongdoer pay the penalty for the wrong he did and to provide a message to society and deter them from committing the same. Capital punishment is an integral part of the criminal justice system also follows the same rationale. But as human rights movements are increasing and the ideology of considering a person as a fellow human being rather than his gender, race, religion, caste, etc. the rationality of capital punishment is being questioned.
The word “death penalty” interchangeably used as capital punishment means the state-sanctioned execution of a malefactor sentenced to death after conviction by a court of law for a criminal offense. The sentence that orders someone to be punished in such a manner is known as a death sentence and an act of carrying out such a sentence is called an execution.
“If a man destroys the eye of another man, they shall destroy his eye”
- These lines are the core doctrine of the code of king Hammurabi
Of Babylon which originated at the age of 18th century that led to the evolution of capital punishment. The statute prescribed capital punishment for over twenty different offenses depending on the defendant’s societal status. The crimes which are now treated lightly like theft; perjury, etc. were subjected to capital punishment in the Hammurabi Code. Later, the notion of capital punishment was adopted by different ancient statutes like the draconian code of Athens where the death penalty was considered to be compulsory for all types of crime, the roman law of twelve tables where they imposed capital punishments through various methods like burning alive, boiling in oil, drowning, hanging, being thrown to a wild animal, etc. Soon after its introduction, there was a hike in the number of capital punishments held in the 17th and 18th centuries for crimes ranging from theft, cutting down of trees, marrying a Jew, treason, etc. As the punishments started getting more stringent and heinous the jurists had started considering the death sentence only for serious crimes. This led to early reforms in the statute of the death penalty in Britain. It was not only in the statute but also several religious texts have justified the idea of capital punishment:
- “Whosoever sheddeth man’s blood, by man shall his blood be shed” (Genesis 9:6) are the excerpts from bible that justifies capital punishment.
- In Islam, capital punishment is entitled for certain crimes like apostasy, adultery, murder, those who conducts war against Islam and spies.
Capital punishment for murder was penalized in India after the independence in 1947 by the imposition of a penal code. But during the British regime, it was during the period of 1931 the fingers started pointing towards the constitutionality of capital punishment when Mr. Gaya Prasad Singh, a member of the British parliament introduced a bill to scrap the death penalty for all the offenses prescribed under the Indian Penal code. But the bill was denied during that time at the parliament by stating the impossibility to enact the bill. And after Independence, the government had retained several criminal statutes including the penal code of, 1860 thus penalizing the death penalty. Later on, during the period of 1950 to 1980 there over 3000-4000 capital punishments occurred in India. But it was the 1980’s landmark case Bachan Singh vs. State of Punjab  that became a turning point in the evolution of laws regarding capital punishment.
Bachan Singh Vs. State of Punjab:
In this case, the bench was headed by justice Y.C chandrachud, justice A.gupta, justice N.untawalia, justice P.N.bhagwati, and Justice R. Sarkaria. The issue raised in the case is regarding the constitutionality of section 302 of IPC, 1860 under which capital punishment is provided, and about the necessity to follow the facts identified by the lower courts for awarding capital punishment under section 354(3) of CRPC. The judgment of the case states that:
The court has dismissed the query against the constitutional validity of section 302 of IPC and 354(3) of CRPC and has also stated that the death penalty can only be imposed in rarest of rare cases, which means that conviction for life imprisonment is the rule and death penalty is an exemption. In India, we all have the right to life under article 21 of the Indian constitution so, that capital punishment is only imposed on serious crimes like aggravated murder, other offenses resulting in death, terrorism-related cases resulting and not resulting in death, kidnapping not resulting in death, drug trafficking not resulting in death, treason, espionage and military offenses not resulting in death. Minors, pregnant women, mentally challenged people are excluded from the death penalty. Hanging and shooting are the two methods that are adopted in India for the execution of the death penalty.
The first capital punishment was executed in September 1947 at Jabalpur central jail by hanging Rasha alias Raghu raj Singh and recently for Nirbhaya rape case by hanging four out of six culprits: Mukesh Singh, viny Sharma, Pawan Gupta, and Akshay Kumar Singh at Tihar jail. This was the first time where four convicts were hanged together on the same platform. Prior to this, the death sentence conducted in India was the 30th July 2015 hanging of terrorist Yakub Memon, who was convicted in the 1993 Mumbai blasts. Over 720 people were executed in India after Independence.
Current Status Of Capital Punishment Both Globally And In India
There are over 58 countries that still follow the death penalty as a punishment. The convention against torture and cruel, inhuman, or degrading treatment or punishment stated that the execution or imposition of capital punishment will not amount to torture or inhuman. The death penalty was permissible under the international criminal law in Tokyo and Nuremberg tribunals which were formed during Second World War and from there onwards international courts exclude capital punishment as a permissible form of punishment. The death penalty is permissible as a punishment under the international convention on civil and political rights (ICCPR) but at the same time, article 6 under the convention guarantees the right to life and also imposes certain safeguards that are supposed to be followed by signatories before considering the death penalty. The ICCR also consists of a second optional protocol for the abolition of the death penalty. It came to light in 1991 and it has 81 state parties and 3 signatories. Under article 37(a) of the convention on rights of children strictly prohibits the imposition of the death penalty on minors (under the age of 18).
At the national level:
From jag Mohan Singh Vs. the state of Uttar Pradesh  then in Rajendra Prasad Vs. the state of Uttar Pradesh  till the landmark case of Bachan Singh Vs. In the state of Punjab, the apex court stated that in India death penalty can only be imposed in the rarest of rare cases. In India, we highly value the life of a human being under article 21 of the Indian constitution and it was stated that a person will only be executed for a death sentence if it has a fair and valid reason. The case should require some uncommon nature which makes the life imprisonment inadequate and enables the court to take away a person’s right to live. In India, our constitution also provides the right to seek pardon and get free from the death penalty. The mercy petition can be accepted by the president and governor under article 72 and article 161 in the Indian constitution respectively. 9 presidents have accepted mercy petitions with Rajendra Prasad being the president who accepted more petitions.
The Arguments For The Death Penalty
The major arguments that favor the idea of the death penalty are:
- The major argument arises from the concept of Hammurabi code, where it considers the man who deprived the right of another man no longer deserves the luxury of human rights.
- Certain crimes like rapes deserve heinous punishments like death penalty.
- Awarding death penalty to the wrongdoers will prevent the society from committing the crimes.
- Death penalty is given as a counter act of revenge by the victim’s family, which is a right that they deserve.
- It is a strong deterrent for criminals.
The Arguments Against The Death Penalty
- The common argument that stands against death penalty is that it takes an individual’s right to life.
- Many countries execute mentally challenged people who might not even know that they have committed a crime.
- In countries like Sudan and Iran death penalty is often used as a political device to execute their political propaganda.
- The people who are disadvantaged to have proper socio-economic background are denied proper legal aid and it tends to emerge as a great disadvantage and will not enable the justice system to follow its ideology of justice to all.
- There are high chances of a person proving to be innocent after the execution. In America, more than 184 prisoners sent to death row were later released from the row on grounds of innocence in 1973. The death sentence itself cannot ban fellow people from committing the crime
Alternatives For The Death Penalty
By providing value to the life of an individual and also providing the wrongdoer to understand his mistake and repent for the same, other alternative punishments are also provided.
- Life imprisonment: it is an effective replacement for death penalty. In this type of punishment a culprit is put behind the bars without the privilege of parole which means that a person cannot leave the prison until he dies. But there is also life imprisonment which provides the luxury of parole. Life imprisonment without parole does have a similar effect that of a death sentence where a person is denied from leading a free and independent life.
- Long term imprisonment: in this type of punishment, a culprit is sentenced for a fixed time period of 40 years. Its followed in several countries like: Brazil, Colombia, Croatia, El Salvador, Nicaragua, Norway, Portugal and Venezuela
- Release with restrictions: under this punishment the culprit is released with certain restrictions for life long or a particular period of time. any infringement of these restrictions will enable the system to send him back to prison
- Preventive detention: this is a type of detention where a person is detained for preventing him from committing a crime.it is mainly provided in case of serious violence or sexual assault where his release can be a threat to society.
- Indeterminate term of imprisonment: in this type of imprisonment, a person is sent to jail for a minimum duration but can be prolonged thereafter.
During the time where nirbhaya rape case was a burning topic, BBC had filmed a documentary named India’s daughter where they interviewed the culprits and their family members. In that documentary, Mukesh Singh, one among the six culprits, was asked the question of whether he repents for the crime he did and the answer was a blatant “NO”. He said that no good girl will go out after 9 pm and if rape occurs it’s the girl’s fault than the boy. The main motive behind punishment is to make the wrongdoer pay the penalty and at the same time, it should deter society from committing the same. Not only in the above-mentioned case but in many other crimes the culprit themselves fails to understand their own mistakes. Other than killing someone for taking another’s life capital punishment sadly gets entitled to an act of mere revenge. It fails to implement its major objective of deterring society from committing the crime. There are lots of social, psychological, and legal aspects that are connected with the commission of a crime. Unless we aren’t able to identify and treat and plunder the reasons for the commission of crimes at the `grassroots level, capital punishment won’t be a solution for it.
The article has been written by Nourien Nizar, a first-year B.COM LLB (HONS) student of Government Law College, Ernakulam, Kerala
The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith.
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