Punishment is as old as human civilization. There are various theories of punishment in the
Capital punishment, death penalty or execution is the infliction of death upon a person by judicial process as a punishment for an offence. Crimes that can result in a death penalty are known as capital or heinous crimes.
Death penalty is the most controversial capital punishment throughout the world. It is controversial because many people including the human right activists condemn it as disproportionate and ineffective in minimizing the crime rate in the society. They call it brutal and a misfit to the civilized world. On the other hand the pro government activists call it a just and indispensible method of punishment to control crime in the society. The law and judicial system has its own reasons behind inflicting the punishments like this. Death is the last and sure thing that can happen to a person in his life. Most of the people excepting a very few, fear death. Life is dear to everyone and so is fearful the death. So when an act is announced as illegal and practice of that act can bring death to you is preset then the chances of occurrence of that ct get reduced. When a criminal sees death penalty being practiced, he will try his best to avoid the same – is the logic and philosophy of law behind death sentence.
India retains capital punishment for a number of serious offences. The Supreme Court of India has allowed the death penalty to be carried out in five instances since 1995, while a total of 26 executions have taken place in India since 1991.
The Supreme Court in Mithu vs State of Punjab[1] struck down Section 303 of the Indian Penal Code, which provided for a mandatory death sentence for offenders serving a life sentence. In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban death penalty.
On 31 August 2015, the Law Commission of India submitted a report to the government which recommended the abolition of capital punishment for all crimes in India, excepting the crime of waging war against the nation or for terrorism-related offences. The report cited several factors to justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven deterring effect on criminals.
The National Crime Records Bureau (NCRB) is an Indian government agency, created in 1986, responsible for collecting and analysing crime data as defined by the Indian Penal Code (IPC). The NCRB has documented death penalties and executions in India since 1995, as part of its prison statistics. According to the Asian Centre for Human Rights (ACHR), 21 people have been executed in India since 1995, which is disputed as NCRB put it at 5 executions. In the decade between 2001 and 2011, 1,455 convicts or an average of 132.27 convicts per year were given the death penalty. During the same period, sentences for 4,060 convicts were commuted from death penalty to life imprisonment.
But in-spite of the above, the records and statistics of The National Crime Bureau, India shows that there has not been any appreciable rate of decrease in the crime rate for the above period and on the contrary they are on the rise. Now the question naturally arise as to whether the rate of execution of capital punishment has been too low in India to have any effect on the criminal of the country or they are – as argued by a group of activists totally ineffective as a deterrent.
The human rights group shows the following point against the sustenance of death penalty :-
1. There is a better alternative: life without parole….. That is life in prisonment without any limitation and without any chance to meet the family members outside the prison.
2. The death penalty puts innocent lives at risk….. They argue that often higher courts have acquitted many death row convicts showing that in the eyes of law they were practically innocent.
3. Race and place determine who lives and who dies…
Those who kill whites or riches or politically and financially established people in the society are more likely to be sentenced to die than those who kill a black or poor or down trodden.
4. We pay many millions for the death penalty system….. It is actually a misbelieve that keeping a convict in prison for life attracts more public expenditure. An execution of death sentence follows years of legal battle in different courts and then consideration and re-consideration of mercy petitions. Easily it can take over 10 to 15 years or even more to implement a death sentence. During this period the death row convict is kept in high security prison with all govt. expenditure to protect him and to keep him healthy and of sound mind.
5. Poor quality defense leaves many sentenced to death……..
One of the most frequent causes of reversals in death penalty cases is ineffective assistance of counsel. A study at Columbia University found that 68% of all death penalty cases were reversed on appeal, with inadequate defense as one of the main reasons requiring reversal. In India also the case is not very different.
6. Capital punishment does not deter crime……Statistical studies have consistently failed to demonstrate that executions deter people from committing crime. Around our country, and elsewhere the rate of crime is not different in regions with capital punishment than the regions without them.
7. There is a better way to help the families of murder victims….Families of murder victims undergo severe trauma and loss which no one should minimize. However, executions do not help these people heal nor do they end their pain; the extended process prior to executions prolongs the agony of the family. Families of murder victims would benefit far more if the funds now being used for the costly process of executions were diverted to counseling and other assistance.
8. We are the “State.” When the “State” kills, we are participants…
Would you choose to be the person that pulls the switch that snuffs out a human life?
On the other hand people/group who favour death sentence as a penalty from capital crime , put forth the following arguments in favour of it :-
1. The death penalty guarantees that those executed will not commit any further crimes.
2. The death penalty deters crime.
3. The death penalty is less expensive than life imprisonment.
4. The death penalty is less cruel than life imprisonment, in light of
the brutality of some countries' prison systems.
5. The death penalty satisfies the desire for vengeance.
6. The death penalty gives prosecutors extra leverage in gaining cooperation from recalcitrant defendants and co-conspirators.
Indian judiciary has pointed out their view regarding death penalty by ruling out in Bacchan singh vs state of Punjab[2] that the death penalty must be restricted to the “rarest of rare” cases, this view of Supreme Court was very much favoring to minimize the use of capital punishment to penalize the criminals, but this view of highest court was contradicted by the legislation by increasing the number of crimes for which capital punishment is awarded.
In Santosh Kumar Bariyar vs State of Maharashtra[3], the Supreme Court got an opportunity to explain this further: “The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death penalty as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.”
Art.21 of the Constitution of India says that no one should be deprived of his life and liberty without due process of law. In several cases the judiciary of our country has discussed the phrase “due process of law”.[4]
The international covenants regarding death penalty can be summarized as follows:-
(1)The mandate of the National Human rights Commission established under the Human Rights Protection Act of 1993 provides a lens through which the situation can be better understood- “Murder is abhorrent and demonstrates a lack of respect for human life and so a policy of state killing is immoral. It epitomizes the brutality of violence rather than the reason as the solution to solve social difficult problems.”
(2)The International Convention on Civil and Political Rights, to which India is a party and which has been ratified by 144 states, encourages the abolition of Death Penalty.
(3)The 2nd Protocol to the International Convention on civil and Political Rights adopted by the United Nations General Assembly with its Resolution on 44/128 of 15th December 1989 is the world’s first pact of universal scope at ending Death penalty.
(4)Half of the countries in the World have abolished it either by law or in practice.
(5)The General Assembly of the United Nations resolved in 1971, “In order to fully guarantee the right to life provided in Article 3 of the UDHR, the number of offences for which Capital punishment may be imposed should be progressively restricted, stressing desirability of abolishing of this punishment in all countries.”
In some recent cases the Supreme Court of India has further laid down the norms regarding death sentence implementation in India. They are :-
· Keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him/her.
· It creates adverse physical conditions and psychological stresses on the convict under sentence of death.
· Indisputably, this Court, while considering the rejection of the clemency petition by the President, under Article 32 read with Article 21 of the Constitution, cannot excuse the agonizing delay caused to the convict only on the basis of the gravity of the crime.
· if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone.
· This provides guidance to the executive in relation to the exercise of the powers of pardon, and a failure to adhere to this guidance will lead to the decision-making process being subject to judicial review so as to ensure that it was not in any way arbitrary.
Whether the delay be allowed if the case involved is having high crime gravity (i.e. the case is of a heinous crime)?
· Supreme Court said that all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind.
· The legal effect of the extraordinary depravity of the offence exhausts itself when the Court sentences the person to death for that offence. Law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity involved in the offence.
· Supreme Court is of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment in all types of cases including the offences under TADA.
· This is indeed a significant part of the judgment as the brutality of the crime is often put forth as an argument for undermining the constitutionally protected rights of those sentenced to death.
CONCLUSION :- Man is deterred from committing crimes mainly owing to the existence of laws that penalize the committing of such acts. There are very few persons who believe it is immoral to commit wrongful acts. If laws preventing wrongful acts do not exist, then the human society would be equaled to a barbarous society that thrives on the principle of survival of the fittest.
But at the same time we must not be unmindful of the fact that taking away the life of a human being with the sanction of state is probably the most cold blooded murder to say the least if not crime and hence it should be used most sparingly.
If for instance we take the Delhi gang rape case or Hetal Parikh murder case or Mumbai attack cases, then it really makes sense as to why death penalty should be sustained, but again such sentences should always come as an exception and never as regularity.
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