Death sentence being one of the harshest punishments known to man has taken a gradual humanized change over the years. Being a mode of punishment prominently followed in most parts of the world has now been abolished in many countries because of a wave of abolishment initiated a few decades back. India seems to be stuck between the global trend to end death penalty and the nations that is still follow. It has taken a very safe ground by giving a minimal provision and leaving it to the discretion of the judiciary to award the punishment in special circumstances. The aim of this paper is to analyze whether capital punishment should be banned or not? While considering the historical as well as present scenario of capital punishment and comparing with other countries where it has been abolished.
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Introduction
“Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial. It is usually only used as a punishment for particularly serious types of murder, but in some countries treason, types of fraud, adultery and rape are capital crimes.” [1] In Indian the traditional way of awarding this punishment is “handing by the neck” till the death of the criminal. In other countries, shooting, electric chair, etc…,are the various devices used for the purpose. The term capital originates from capitalis, literally “regarding the head” (Latin caput). Hence, a capital crime was originally one punished by the severing of the head. [2]
Amongst democratic countries today, it is rare to find capital punishment being practiced. In fact, Japan, South Korea, Taiwan, and the U.S. are the only ones who still have the death penalty. However, it is mainly found in poor, undemocratic and authoritarian states that the death penalty is still being used, and usually as a means of political oppression. The European Union and the Council of Europe refuses its member states to practice the death penalty, or at least desire them to show that they no longer actively practice it (i.e. a moratorium). Although the United States had suspended executions in 1973, they resumed them in 1977. However, not all the states perform capital punishment, with at least 12 of them having banned it at the time of writing?
Most of the countries except China, a few countries in South Africa and Belarus in Europe, have moved towards abolishing death penalty [3] . Though being a member of the International Covenant on Civil and Political Rights which is adopted by the United Nations and stands to bring countries to abolish ‘death penalty’, India has not taken this important step to abolish such a grave punishment.
Capital punishment is nothing but judicial murder, it is said, especially when an innocent life is destroyed. Besides this, capital punishment, as is generally supposed, is not deterrent. Murders and other heinous crimes have continued unabated, in spite of it. The result of such views has been that in recent years there has been an increasing tendency in western countries to award life imprisonment instead of capital punishment. Muslims countries, to be more serve in this respect. Despite frequent demands from all society Indian has not so far abolished capital punishment. But even in India there has been a decline in the frequency of such punishment. It is now awarded only in cases of hardened criminals and only when it is established that the murder was not the result of a momentary impulse, the result of serious provocation, but well-planned and cold-blooded. In such cases, it is felt that nothing else than capital punishment would be executed for that crime. Those who indulge in anti-social and sternest possible measures should be taken against them, specially when they are habitual offenders. India has not so far abolished capital punishment but used it more judiciously. Sociologists are of the view that capital punishment serves no useful purpose. By sending the criminals to gallows, we in no way help or provide relief to the family of the murdered. The sociologists, therefore, suggest that the murderer should be sentenced for life to work and support the family of murdered person as well as his own. In this way, innocent women and children would be saved from much suffering, hunger and starvation. [4]
Philosophers view on capital punishment
According, to Kant’s view no state can exist if there is no law and if there is no law then there is no society and no state. Therefore legislation of law is necessary. Therefore by Kant’s view if a person has violated such laws by doing a crime then a person who has violated such law must be punished. “According to Kant punishment is a legal act that definitely has a certain basis. This basis is a crime. If there is no crime there must be no punishment. Punishment of innocent people is a result of a worthless legislation; this means that the legal system is unable to establish guilt and make a differentiation between innocent people and criminals.” [5] Kant’s opinion towards death penalty is justified only if there is a murder. According to him if there is a murder then he must die.
Theory of punishment:- by both H.L.A Hart and (1959) in England and John Rawls (1955) in the United States.
“Defining the concept of punishment must be kept distinct from justifying punishment. A definition of punishment is, or ought to be, value-neutral, at least to the extent of not incorporating any norms or principles that surreptitiously tend to justify whatever falls under the definition itself. To put this another way, punishment is not supposed to be justified, or even partly justified, by packing its definition in a manner that virtually guarantees that whatever counts as punishment is automatically justified. (Conversely, its definition ought not to preclude its justification.)” [6]
Historical Background
Capital punishment is regarded as one of the severest form of punishment in the history of mankind. During the medieval era, capital punishment was sentenced even for extremely trivial and inconsequential matter or in other words we can say that they were executed for minor crimes such as stealing, cheating or even trespassing. Also, the methods of administering death penalty were immensely harsh and gruesome. Most historical records and various primitive tribal practices indicate that the death penalty was a part of their justice system. This was the only method for them to provide justice for every crime done by a person. However, during medieval times the capital punishment was rather insensitive. The punishment which was given to the accused can’t be compare to the act which has been done by accused. One of the oldest methods of practicing capital punishment was hanging. This method was originated from Persia and was restricted only for male criminals. The method was considered to be comparatively less harsh as it was relatively simpler with no involvement of blood. This form of punishment is prevalent to date in countries such as Singapore, Japan, India, Pakistan and three states in US. [7]
“In the earlier time death penalty laws can be found in the Code of King Hammaurabi of Babylon (18th century BCE), in which death penalty was given for different crimes. But in the Draconian Code of Athens (7th century BCE), times where every crime was punishable by death and was the most extreme capital systems in ancient times. Later on under Roman law in the 5th century BCE, a person could even be sentenced to death for simply writing an insulting song” [8] . The Romans also used it for a wide range of offenses, though citizens were exempted for a short time during the republic. It also has been sanctioned at one time or another by most of the world’s major religions.
“In medieval and early modern Europe the death penalty was largely used as a generalized form of punishment, and often accompanied by torture. Similarly, in medieval and early modern Europe, before the development of modern prison systems, the death penalty was also used as a generalised form of punishment. For example, in 1700s Britain there were 222 crimes which were punishable by death, including crimes such as cutting down a tree or stealing an animal.” [9] Thanks to the notorious Bloody Code, 18th century (and early 19th century) Britain was a hazardous place to live. For example, Michael Hammond and his sister, Ann, whose ages were given as 7 and 11, were reportedly hanged at King’s Lynn on Wednesday, September 28, 1708 for theft. The local press did not, however, consider the executions of two children newsworthy. [10]
Present scenario
But the time has changed now, the judiciary in most countries has adopted a more civilized attitude towards this punishment and death penalty is reserved for extremely heinous crimes.
Three quarters of executions worldwide occur in Asia. 95% of Asians live in jurisdictions that carry out capital punishment. China alone accounts for 90% of all executions in Asia. The country executed approximately 5000 people in 2008. That’s a rate per capita dozens of times higher than in the U.S., and yet it’s a steep drop for the numbers of some decades earlier. India is also “retentionist” (meaning the opposite of abolitionist) but only executed one person in the first decade of the new millennium. Singapore used to kill a similar proportion of its citizens as China, but the rate has dropped recently. Japan, on the contrary, is executing more and more people. Saudi Arabia is known for its particularly gruesome methods [11]
We can see from the above graph there is lot of change in figures earlier only death penalty was sentenced as compared to medieval times. Pakistan , U.S. and China are at the highest peak. Pakistan and china are the main contributors in increasing the percentage of death penalty in Asia.
The most recent executions in South Korea took place in December 1997, when 23 people were executed at short notice on the same day. Similarly, nineteen executions occurred in 1995 and 15 in 1994, in each instance occurring all on the same day. No executions have occurred since 1998, but this de facto suspension has not been reinforced by law. Since 1999, lawmakers have thrice endorsed a bill favoring life imprisonment without parole in place of the death penalty, but each time the proposal has stalled and failed to move forward. The need remains to develop a culturally appropriate pro-abolition argument that could persuade the Korean public that the death penalty is unworkable and wrong. On 21 January 2007, in the Inhyeokdang case, the Korean Court acquitted 8 persons who had been executed 32 years earlier. The hope is that, in light of strong arguments based on the risk to innocent persons and the irreversibility of capital punishment, Korea will effectively transition from de facto to formal abolition.
Capital Punishment should be banned or not?
“Most of the people now feel that punishment for crimes like murders should not be death but some re formative or deterrent sentence. Death sentence cannot reform a criminal since once dead he cannot be reformed. The government’s, which have abolished death sentence, find that there is no increase in the number of murders in the countries after the abolition. Some social reformers still feel that life imprisonment is a more severe kind of punishment. However, capital punishment puts an end to the criminal’s life, life imprisonment forces him to spend his whole life within the boundaries of a prison. Over 37 countries have already abolished the death sentence and the after-effects of it have not been harmful. India, which is the birthplace of great luminaries, should also abolish death sentence and replace it with some other kind of punishment, which aims to abolish crime, not merely kill criminals.” [12]
In India, capital punishment is granted for different crimes, counting murder, initiating a child’s suicide, instigating war against the government, acts of terrorism, or a second evidence for drug trafficking. Death penalty is officially permitted though it should be used in the ‘rarest of rare’ cases as per the judgement of Supreme Court of India. Amongst the retentionist countries around the world, India has the lowest execution rate with just 55 people executed since independence in 1947. [13]
In the case of Bachan Singh v State of Punjab [14] , wherein a Constitutional Bench with a 4:1 majority upheld the constitutional validity of death penalty and the scope of the provision which enabled the imposition of death penalty. Justice Bhagwati took a dissenting opinion and held that the death sentence is unconstitutional and violative of Articles 14 and 21 of the Constitution of India. laws’ which are to be used to avoid and prevent people from committing such offences and not to take the life a person using the same laws. The State has no right to take the life of a person. India according to me should abolish death sentence.
Article 14 and 21 of the Indian Constitution provides for Right to equality before law and protection of life and personal liberty respectively. Article 14 states, “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India” [15] . And Article 21 states, “No person shall be deprived of his life or personal liberty except according to procedure established by law” [16] . If a procedure of law itself takes a life of a person, who is to be blamed, and who should be punished for it? Is it fair to kill a person? If not, what is the difference between a murderer and the society who takes the life of a murderer by sentencing him to death?
In a landmark case of Bachan Singh vs. State of Punjab [17] , a panel of four judges of the Supreme Court upheld the constitutional validity of death penalty but Justice Bhagwati differed in his opinion. The four judge panel led by Chief Justice Y.V. Chandrachud suggested a set of guidelines for determining the aggravating circumstances which would warrant the imposition of death penalty and other mitigating circumstances for awarding the lesser punishment of imprisonment for life. Further, the Supreme Court held that the aggravating circumstances which result in special reasons as per the Criminal Procedure Code must be considered to be sentenced to death. And finally held that death sentence should be imposed only in “Rarest of Rare” cases.
The death sentence as a punishment can also have a deterrent effect against the potential murderers. But J. Bhagwati argues that death sentence will have a greater deterrent effect as opposed to the life sentence. J. Bhagwati enriches the court with various scholars over the world who would agree with his opinion and this very opinion has favored the abolition of death penalty in their countries. He says “it is not a rational conviction but merely an unreasoned belief which is entertained by some people including a few penologists, judges, jurists and legislators that death penalty has a uniquely deterrent effect” [18] . Reference was also made to the Fifty Fourth Law Commission report [19] which also took a view that death sentence acts as a deterrent. It says that ‘every human being dreads death’ suggesting that death sentence had a greater deterrent effect than other punishments. As the punishment is more deterrent than others it becomes arbitrary and unreasonable and violates article 14 ad 21 of the Constitution.
Therefore it should be not be completely abolished. Hence, it should be executed only in rarest of rare cases.
Conclusion
“Death penalty is the harshest of punishments provided in the IPC, which involves the judicial killing or taking the life of the accused as a form of punishment” [20] . It is a mode of punishment which extinguishes the life of an accused. In India, death sentence has gone through a number of changes but still remains as the harshest punishment. It is the punishment for murdering another human being. It is true that killing someone is cruel, but it is also not reasonable for a society to kill someone. The only difference between these is that the accused in a murder case is punished by the society but there is no one to punish the society. The rule of law is set up to protect and regulate both the society as well as the people in the society.
In conclusion, I feel that death penalty should be completely abolished. Though I am also morally against death penalty this analysis has made my views even stronger. But it should be executed only in the rarest of rare case like there is nothing else left instead of capital punishment for giving justice to someone. The views suggested by philosophers also suggest the same meaning that it should be executed only in the case of murder or we can say that in the rarest of rare cases.
