What is Capital Punishment?

Capital punishment or the death penalty is the execution of an offender sentenced to death after conviction by a court of law for a criminal offense. Capital punishment is distinguished from extrajudicial executions carried out without due process of law. It is the highest penalty awardable to an accused. It is usually given in the most serious cases of murder, rape, treason, and so on.

Background of the Capital Punishment

The first established death penalty regulations can be found in King Hammurabi of Babylon’s Code, which legislated the death sentence for 25 separate offences in the eighteenth century B.C. The death penalty was also part of the Hittite Code in the fourteenth century B.C., as well as the Draconian Code of Athens in the seventh century B.C., which made death the only punishment for all offenses.

The Biblical text “sheddeth man’s blood, by man shall his blood be shed” has been used to justify capital punishment throughout the Christian world. During the 17th and 18th centuries, death was the penalty for a wide range of misdeeds in England, but it was never applied as far as the law allowed.

In India, for a variety of offences, including theft, Manusmriti advocated elephant death. Death was mandated as one of the punishments in colonial India by the Indian Penal Code of 1860, and it was kept after independence.

What are the arguments in favor of Capital Punishment?

There are three theories of punishment. The first is Retributive, second is Deterrence, and the third is Reformative punishment.

One of the major tenets of retribution is that people should receive what they deserve in proportion to the gravity of their crime. This argument claims that true justice necessitates people suffering for their transgression and suffering in a manner commensurate with the offense.

Each criminal should receive the punishment that their crime deserves, and in the instance of a murder, the culprit should be executed.

This argument claims that true justice necessitates people suffering for their transgression and suffering in a manner commensurate with the offense.

Each criminal should receive the punishment that their crime deserves, and in the instance of a murder, the culprit should be executed.

The notion that executing convicted murderers will dissuade would-be killers is frequently used to justify capital punishment. The death sentence is frequently suggested to bring closure for victims’ families.

There are several stories of people who have been sentenced to death using the time before their execution to repent, express remorse, and, in many cases, undergo significant spiritual rehabilitation.

According to Thomas Aquinas, embracing death as a punishment allowed the offender to atone for his evil crimes and therefore avoid punishment in the next life. It shows that the death sentence can result in some types of rehabilitation.

In many countries where capital punishment is still used, the vast majority of residents support it. Following the Delhi rape incident in December 2012, a poll indicated that over 70% of Indians supported the continuation of capital punishment.

What are the arguments against Capital Punishment?

1. Even individuals who commit murder have an innate human right to life because life is valuable.
2. Because of blunders or weaknesses in the legal system, innocent individuals are killed. There is evidence that similar errors can occur: Since 1973, 130 persons on death row in the United States have been proved innocent and released. (In 2012, 14 former judges from various High Courts and the Supreme Court of India signed a petition to the President of India, pleading with him to pardon 13 convicts who had been wrongfully convicted to death (as the Supreme Court admitted) and were awaiting execution.)
3. Failure to deter-It does not appear that the death sentence deters people from committing significant violent crimes. In India, the death sentence has little effect on preventing or combatting violent crime. Despite the decline in executions in India, according to the Home Ministry’s statistics, there has been no noticeable increase in the levels of ordinary crime and violence. “Research has failed to give scientific proof that executions have a higher deterrent effect than life imprisonment,” according to a UN survey. Increasing the chances of detection, arrest, and conviction is the key to meaningful deterrence.”
4. Many individuals believe that retribution is a sanitized version of revenge and that it is morally faulty and troublesome in idea and practice. Capital punishment legitimizes the precise behavior that the law is designed to prevent: murder. As a result, the moral message conveyed by capital punishment is counterproductive. Others say that the retribution argument is incorrect because the death sentence imposes a “double punishment”: the execution and the period of waiting before it, which is incompatible with the offense. Even the most heinous acts should not be met with the death sentence in a modern civilized society.

Criticism of the “rarest of rare” doctrine:

Capital punishment is considered as a most inhuman and cruel punishment in the world. Many countries have abolished but India being an active member of United Nations and various other commissions of Human Rights has not abolished it yet. According to our judiciary, it is only implemented in exceptional circumstances that are rarest of the rare. India is a diverse country and based on rich culture. It is not the fact that crimes are originated in modern times and therefore, such punishment should be given.

A Supreme Court judgment stipulates that capital punishment will be imposed in “the rarest of rare” cases, where the community’s “collective conscience is so shocked that it will

expect the holders of the judicial power centre to inflict the death penalty” because of the abhorrent nature of the crime, which would include “the manner of the commission of the murder,” for instance, “if it was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner,” or where the victim was “subjected to inhuman acts of torture or cruelty in order to bring about his or her death.”

The Death penalty in India

1. In India, the death sentence was the rule and life imprisonment was the exception before to the Criminal Procedure (Amendment) Act (Cr PC) of 1955.
2. Following the 1955 amendment, judges were free to sentence someone to death or life in prison.
3. Courts are compelled to provide reasons in writing for assigning the maximum sentence under Section 354 (3) of the Cr PC, 1973.
4. The situation has been reversed and a life sentence is the rule and death penalty an exception in capital offenses.
5. Allowing offenders who have committed purposeful, cold-blooded, deliberate, and horrific murders to escape with a reduced sentence, according to India, will undermine the law’s effectiveness and result in a farce of justice.
6. According to NCRB and ACHR data from 2001-2020, only 8 people among the population of over 120 crores have been sentenced to death which are Dhananjoy Chatterjee( rape), Ajmal Kasab( Mumbai Terror Attack) ,Afzal Guru (Indian Parliament Attack), Yakub Memom (1993 Bombing) and Akshay Thakur, Mukesh Singh, Pawan Gupta, Vinay Sharma (Gang Rape).

Supreme court judgements on Capital punishment

Jagmohan Singh vs. State of Uttar Pradesh,1973

In Jagmohan Singh vs. State of Uttar Pradesh, a five-judge Supreme Court bench unanimously affirmed the constitutional legitimacy of the death penalty, ruling that it did not violate Articles 14, 19, and 21 of the Constitution. The legitimacy of the death sentence was challenged in this instance on the grounds that it was in violation of Articles 19 and 21 because no procedure was provided. It was argued that the procedure outlined in the Cr. P.C. was limited to finding guilt and not to imposing a death sentence. The Supreme Court ruled that the decision to condemn someone to death is made in conformity with the legal process. It was noted that the judge decides whether to impose a death penalty or not.

Rajendra Prasad v. State of UP, 1979

The Supreme Court ruled that if a criminal’s deadly operation jeopardises social security in a persistent, planned, and risky manner, his fundamental rights might be rightfully revoked.

Bachan Singh v. the State of Punjab, 1980

The Supreme Court’s Constitution Bench promulgated the “rarest of rare instances” dicta, which states that the death sentence should only be applied in the “rarest of rare situations” when no other option is absolutely foreclosed.

Machhi Singh v. State of Punjab, 1983

The Supreme Court established five criteria for deciding whether or not a case comes into the category of the rarest of rare instances.

• Manner of Commission of murder– When the murder is committed in an extremely brutal manner so as to arouse intense and extreme indignation in the community, for instance, when the house of the victim is set a flame to roast him alive, when the body is cut to pieces or the victim is subjected to inhuman torture.
• Motive – When the murder is committed for a motive which evinces depravity and meanness eg. a hired assassin, a cold blooded murder to inherit property, or gain control over property of a ward, or a murder committed for betrayal of the motherland.
• Anti-social or socially abhorrent nature of the crime – where a scheduled caste or minority community person is murdered in circumstances which arouse: social wrath; or bride burning for dowry, or for remarriage.
• Magnitude of the Crime – Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community or locality.
• Personality of victim of murder

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