FUTURE OF CAPITAL PUNISHMENT AS A DETERRENT FOR SERIOUS CRIMES

ABSTRACT

Capital Punishment is a debatable topic all over the world due to its extensive impact across all societies. The ongoing debate is on the context of preservation of Human Rights, the pursuit of justice, and the obligation of the society. To maintain all that is a very hard task. 

While some may argue that it acts as a deterrent and serves justice, at the same time others emphasize its potential for miscarriages of justice and the ethical concerns surrounding the taking of a Human life.

This article revolves around the comprehensive review of legal aspects of capital punishment in India as well as around the world, including its history, judicial interpretations, and the ongoing debates regarding its use.  

KEY WORDS: Punishment, Capital Punishment, Death Penalty, Death Sentence

INTRODUCTION

Punishment is a type of penalty or consequences that is imposed on an individual or a group of individuals as  result of bad actions committed by them which are against the law and are hindrance to public peace and safety. Punishments are generally given to discourage the offenders for repeating their actions that are undesirable and to uphold the societal norms and laws.

 Generally, punishments can be given in different forms which can include Flogging, Mutilation, Fine, Compensation to Victim, Proposal for Reform, Forfeiture of Property, Solitary Confinement, Imprisonment, Imprisonment for Life, or Death Penalty. Each kind holds certain pros and cons but the discretions is on the court to decide which one of these kinds will be suitable for such offense as it is dealing with.

Punishments are given in accordance with the seriousness of the offense. If the offense is less serious and does not involve any major damage, then the punishment can be given very less harshly. But if the offense is more serious and involves serious damage, then the punishment must be given accordingly which must be hard.

The consequence that a criminal serves for his/her actions is called punishment. Punishment may involve any type of sufferings, loss, pain, penalty or image tarnish. In general, punishments are given to ensure crimes are not repeated, to create fear or to prevent crime in future. Some of these punishments are not fully functional in today’s world, but whichever punishment is given it is given in accordance with the crime done.

LITERATURE REVIEW

As per  GREENHUT, it is suggested that there must be three components present “if punishment is to act as reasonable means of checking crime”- Firstly, “Speedy and inescapable detection and prosecution must convince the offender that crime does not pay.” Secondly, “After punishment, the offender must have a fair chance to a fresh start.” And Thirdly, “The State which claims the right of punishment must uphold superior values which he (Offender) can reasonably be expected to acknowledge.”

Amnesty International believes that the death penalty is against human rights and has declared “ the right to life and the right to live free from torture or cruel, inhuman, or degrading treatment or punishment.”

METHODOLOGY

Research methodology used for this article is Analytical Research Methodology. This method was chosen as the topic requires a lot of proven facts from different cases and articles and reports from different organizations as it is a serious matter and in this type of cases one requires supporting data to support its findings.

This research method assists in developing new concepts related to research subjects. Thus, analytical research adds minute details to produce effective and tenable hypotheses. There are different ways to go about this research including; trials by different organizations, meta-analysis and opinions of the public. As analytical method make use of quantitative methods also, it helps the researcher to carry out a critical and descriptive evaluation of the material in this method. 

DISCUSSION

The Death Penalty is and will always remain a controversial topic. Various people and organizations have raised their voices against it, arguing that it should be held not ethical and violative to the Mortal Rights. Such rights are preserved by the Universal Declaration of Human Rights adopted by the United Nations in 1948. In the European Union (EU), Article 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment. The United Nations General Assembly has taken up 8 non-binding resolutions from 2007 to 2020, which calls out to a  global prohibition of executions in furtherance to their eventual abolition.  

However  in India it is believed that the punishment that a criminal is fearful of is Death penalty and it can be used to deter them from committing horrible crimes. In Indian history there has been a lot of discussion about the elimination of Death penalty.

THEORIES OF PUNISHMENT

Punishment has always been a topic for debate and discussion among philosophers, political leaders, and lawyers for centuries. All that debate and discussion resulted in the formation of various Theories of Punishment, each of which attempts to justify the practices in some form and to state its proper objective. The theories can be broadly named as Retributive, Deterrent, Preventive, and Reformative.  

The Retributive Theory is also known as revenge theory. It follows the rule of natural justice where  the maxim, “an eye for an eye and a tooth for a tooth” is included. This theory originated to take revenge or vengeance from the wrong-doer. This theory states that offenders should be punished for offenses without thinking about the consequences.

The Deterrent Theory says that motive of the punishment is to refrain the criminals from committing crime further and to set a reference for others. The motivation is to restrain the criminal activities of the prospective offenders.

The Preventive Theory says that the purpose and aim of punishment is to act as preventive measures for committing crimes. The fear of punishment puts a stop to the possible lawbreaker from doing acts that are against the law. The essence of punishment is to ensure protection of the public by prevention of crime. 

The Reformative Theory is referred to as corrective or rehabilitative theory. Reformation denotes “the effort to restore a man to society as a better and wiser man and a good citizen.” This theory tries and aims to reform criminals so that he can become harmless by fulfilling his/her disability and help him to overcome the hitch which made him commit an offense. 

TYPES OF PUNISHMENT

As mentioned above there are various types of punishment such as Corporal, Transportation, Capital Punishment, Imprisonment or Monetary. The punishment is given by the court at its own discretion according to the case it is dealing with. The court can also give more than one punishment to an offender if it thinks fit.

CAPITAL PUNISHMENT

The other names of capital punishment are death penalty and death sentence. It has always been a part of human society. In India, it has been go to word since the colonial era. It has always been a disputed topic. It requires execution of persons convicted of severe crimes. The term “capital” is derived from the Latin word “capitalis”, which means concerning the heads.

Around the world, the ways by which executions are performed includes stoning, sawing, shooting by the gun, lethal injection, electrocution, etc. in India, the execution is served by hanging the accused. A new system of using nitrogen gas for execution is introduced by the US State of Alabama to execute a murderer named Kenneth Smith as the drugs used in lethal injections have become very rare to find.

HISTORY AROUND WORLD

Capital Punishment has been used in society from prehistoric times. It was used to create social order. For the first time it was used by the Babylonian King Hammurabi’s Codex, dating 18th century B.C., which elected this method for 25 different offenses. It was the first time when the death penalty rules and regulations were put on paper. Death penalty as a punishment for all crimes can be traced in the Draconian Code of Athens of 7th century B.C.

Britain by the 9th century A.D., commonly used hanging for execution. But when William the Conqueror came in power, he forbade the use of any harsh methods for execution for the following century but he gave an exception in war times. 

But the rule of Henry VIII in the 16th century ended this and executed approximately 72,000 persons. Boiling, burning at the stake, hanging, impaling, and drawing and quartering were some common methods of execution.

HISTORY IN INDIA

Death Penalty in India has been used since the colonial era in the most serious conditions. It involves both deterrent and reformative theories. Indian criminal law uses it for 2 reasons; 1st being installation of fear in criminals and 2nd being giving them a chance to change. As the Indian Constitution grants fundamental right to life to every person with some exceptions, it is proclaimed that it violates those rights. But the Constitution of India does not explicitly prohibit the death sentence.

CAPITAL PUNISHMENT IN INDIA

The Indian Constitution in Article 14 suggests that each and every person is entitled to “equality before law and equal protection of law”. It concludes that the state should ensure that there must be equality among people and no discrimination is performed. But discrimination is allowed if it is necessary to do so to ensure equality. An allusion to the concept of equality is also included in the Preamble of the Constitution.

The Indian Constitution in Article 21 provides protection of life and personal liberty to every individual which includes ‘Right to Privacy and Right to Live with Dignity.’ But it also provides an exception that all the above-mentioned Rights can be exempted if it is in granting with the procedure stated by law.

In India, the issue of death penalty has often been a point of contention. While we consider the Constitution as the epitome of inspiration, the question of death sentence v/s Fundamental Rights always remains contentious. The Supreme Court has considered death penalty valid in India stating that it does not in fact violate the rights granted to its people by the Constitution. However, the death sentence is rarely awarded by the Indian Criminal Courts. As stated by the Supreme Court in the case of Bachan Singh vs. State of Punjab, 1980 SC 898, capital punishments should be given in the “rarest of cases.”

Even the state can sometimes limit the Fundamental Rights as there are some exceptions available to them to do so for the keepsake of public law and order. In the case of Maneka Gandhi vs. Union of India, the Supreme Court laid down principle of ‘due process’ through which a state has a right to restrict a person’s right of enjoying fundamental Rights. In the case Death penalty, the process of due process can be as follows:

• The death penalty will be imposed in the ‘rarest of rare’ cases;

• The accused has “the right to be heard”;

• According to Article 136, the death penalty is approved and determined by the High Court;

• Section 379 of the Cr.P.C., grants accused, the right to appeal in the Supreme Court;

• Section 433 and 434 Cr.P.C., allows the accused to pray for commutation, forgiveness, etc. of the sentence.

CASES OF INDIAN COURTS

From time to time, through different case laws, the validity of death penalty under the Indian Constitution is always challenged. In the case of, Jagmohan Singh vs. State of U.P., the Supreme Court upheld the validity of capital punishment and made it a choice for the court to follow it as per the procedure stated by the law. The choice between capital punishment and life imprisonment depends on the situation, nature of circumstances and facts of the case.

In the case of, Rajendra Prasad vs. State of U.P., Justice Krishna Iyer had compassionately highlighted that the Death penalty is violative of Articles 14, 19 and 21. However, the court in the case of, Bachan Singh vs. State of Punjab overruled the decision of Rajendra Prasad case and gave the doctrine of ‘rarest of rare case’. Further, in the case of, Machhi Singh vs. State of Punjab,1983 AIR SC 957, the Supreme Court has laid down certain conditions for imposing death penalty. 

Similarly, in the cases of Sher Singh vs. State of Punjab and Triveniben vs. State of Gujarat, the Apex Court voted in Favour of validity of the Death penalty. But in the case of, Mithu vs. State of Punjab, the Supreme Court held that death penalty cannot be made mandatory as it is invalid and unconstitutional in nature. However, recently in the case of Channu Lal Verma vs. State of Chhattisgarh, the  three- judges bench dealt with question of constitutional validity of death penalty where they upheld the decision of Bachan Singh’s case.

 CAPITAL PUNISHMENT ALL AROUND THE WORLD

As per the Amnesty International’s 2022 survey, 55 countries impose the death penalty, of which 9 only impose it for the most serious and heinous crimes such as war crimes or mass killing, and 23 countries have not given death penalty for 10 years. 

Despite several countries putting an end to death penalty, the number of executions is rising globally.  According to Amnesty International 883 executions were carried out worldwide in 2022, which can be considered the highest number of executions since 2017. However, this is far less than the figures for 1988, 1989, or 2015, when more than 1,500 people were executed in a single year. According to the same report there are 11 countries that consistently execute people every year. These countries include China, Egypt, Iran, Saudi Arabia, the US, Vietnam and Yemen. The countries executing the highest number of Death penalties in the year of 2022 were Iran, Saudi Arabia, Egypt and the US.

According to the same report at least 2,016 death sentences were imposed in 52 countries in 2022. The report also suggests that by the end of 2022 at least 28,282 people were sentenced to death worldwide. 20 countries executed people in 2022, up from 18 in 2021. Saudi Arabia was the highest in 30 years. Five countries including Bahrain, Comoros, Laos Niger and South Korea, have not used the death Penalty for several years, and sentenced people to death in 2022. The number of executions carried out in the US has increased since 2021, although the peak remains at 1999.

CONCLUSION

The death penalty is still in force in countries like China, India, the United States, Singapore, Indonesia, Pakistan, and Bangladesh, which constitutes 605 of the world’s population.  

But it is believed that rates of crime are lower in nations who have abolished the Death Penalty than those who have not. Death penalty is widely being accepted as an inhuman, brutal and extremely degrading punishment which fails to provide safety to the public and prevent violent crimes and is dangerous as a whole. But in India, a lot of discussion has been made regarding the retention of death penalty. The Law Commission was the first to discuss on the death penalty in India in their 35th Law Commission Report, wherein they concluded that death penalty must be retained in India. Such a punishment will in fact make people obey the law and orders.

However, in the case of, Channu Lal Verma vs. State of Chhattisgarh, Justice Kurian Joseph had a different view, he said that “there is no substantial proof for the death penalty as a deterrent to crime.” Evidences from all around the world has shown that capital punishment is no unique deterrent to crime. Instead of making the society safe it put a brutal effect on it. But for the people planning to create fear in  society through large scale acts of violence, Capital Punishment is justified. The nation’s right to create laws is recognized by Amnesty International, but such laws should be formulated by keeping in mind the Human Rights.

It is believed that crime will decrease and people will become more observant if the countries will impose death penalty. This will make people believe and have faith towards law. But the countries should not use this as a general thing. It must not be used for publicity or showing oneself as superior or more powerful. It must only be used in most serious cases.

AUTHOR:

RADHA TIBREWAL

ST. ANDREWS COLLEGE, GORAKHPUR