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CAPITAL PUNISHMENT Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The judicial decree that someone be punished in this manner is a death sentence, while the actual enforcement is an execution. Crimes that can result in a death penalty are known as capital crimes or capital offenses. The term capital originates from the Latin capitalis, capitalis, literally "regarding the head" (referring to execution by beheading). Death Sentence has been used as an effective weapon of retributive justice for centuries. The fear of being condemned to death is perhaps the greatest deterrent which keeps an offender away from criminality. The justification advanced is that it is lawful to forfeit the life of a person who takes away another’s life. Thus, the motive for death penalty may indeed include vengeance which is a compensatory and reparatory satisfaction for an injured party, group or society. Currently 58 nations actively practice capital punishment, 98 countries have abolished it de jure for all crimes, 7 have abolished it for ordinary crimes only (maintain it for special circumstances such as war crimes), and 35 have abolished it de facto (have not used it for at least ten years and/or are under moratorium). Amnesty International considers most countries abolitionist; overall, the organization considers 140 countries to be abolitionist in law or practice. About 90% of all executions in the world take place in Asia. Nearly all countries in the world prohibit the execution of individuals who were under the age of 18 at the time of their crimes; since 2009, only Iran, Saudi Arabia, and Sudan have carried out such executions. Executions of this kind are prohibited under international law. Capital punishment is a matter of active controversy in various countries and states, and positi ons can vary within a single political ideology or cultural region. In the European Union member states, Arti cle 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment. Under Article 21 of the Constitution of India, no person pers on can be deprived of his life except according to procedure establis hed by law. Indian Penal Code, 1860 - In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860 (IPC) and the same was retained after independence. Section under IPC Nature of crime 120B Punishment of criminal conspiracy 121 Waging, or attempting to wage war, or abetting waging of war, against the Government of India 132 Abetment of mutiny 194 If an innocent person be convicted and executed in consequence of such false evidence to procure conviction of capital offence 302, 303 Murder 305 Abetment of suicide of child or insane person 364A Kidnapping for ransom 396 Dacoity with murder If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished 376A Rape/Sexual Assault An amendment in the year 2013 provided for death penalty in case he inflicts an injury i njury upon woman during rape which causes her death or to be in persistent vegetative state. state.[8]
In addition to the Indian Penal Code, a series of le gislation enacted by the Parliament of India have provisions for the death penalty. Sati is an inhumane practice involving the burning or burying alive of any widow or woman along with the body of her deceased husband or any other relative or with any article, object or thing associated with the husband or such relative. Under the Commission of Sati (Prevention) Act , 1987 Part. II,
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Section 4(1), if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes. Under Section 3(2)(i) of the Act, bearing false witness in a capital case against a member of a scheduled caste or tribe, resulting in that person's conviction and execution, carries the death penalty. In 1989, the Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed which applied a mandatory death penalty for a second offence of "large scale narcotics trafficking". On 16 June 2011, the Bombay High Court ruled that Section 31A of the NDPS Act, which imposed the mandatory sentence, violated Article 21 (Right to Life) of the Constitution and that a second conviction need not be a death penalty, giving judge’s discretion to decide about awarding capital punishment. In recent years, the death penalty has been imposed under new anti-terroris m legislation for people convicted of terrorist activities. On 3 February 2013, in response to public outcry over a brutal gang rape in Delhi, the Indian Government passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a "persistent vegetative state". The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013. EXECUTION OF THE DEATH SENTENCE
The execution of death sentence in India is carried out by two modes, namely hanging by the neck till death and being shot to death. Hanging
Colonial era legislation, the Code of Criminal Procedure, 1898, provided for hanging by the neck until death. This has been adopted by the Code of Criminal Procedure, 1973. Section 354(5) of the above procedure reads as: "When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead." The execution is carried out in accordance with the section and Jail Manuals of the respective states. An attempt to challenge this method of execution failed in the Supreme Court, which stated in its 1983 judgment that hanging did not involve torture, barbarity, humiliation or degradation. Shooting
The Army Act and Air Force Act also provide for the execution of the death sentence. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950. Section 163 of the Act provides for the for m of the sentence of death as: - “In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death”. This provides for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death. The Army Act, 1950, and the Navy Act, 1957 also provide for the similar provisions as in The Air Force Act, 1950. Penologists in India have reacted to capital punishment differently. Some of them have supported the retention of this sentence while others have advocated its abolition on humanitarian ground. The retentionists support capital on the grounds that it has a great deterrent value and commands obedience for law in general public. The abolitionists, on the other hand, argue that enormous increase in homicide crime-rate reflects upon the futility of death sentence.
THE DEATH PENALTY DEBATE
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It helps the victims' families achieve closure.
State-sanctioned killing is wrong.
The death penalty should apply as punishment for first-degree murder; an eye for an eye.
The death penalty is a financial burden on the stat e.
The death penalty deters crime.
Wrongful convictions are irreversible.
Execution helps alleviate the overcrowding of prisons. Execution prevents the accused from committing further crimes.
The death penalty can miscarriages of justice.
produce
irreversible
The Law Commission of India in its 35th Report said on a consideration of the issues that capital punishment should be retained in the present state of the country. Supporting the view of the Law Commission, the Supreme Court in Bachan Singh V. State of Punjab, observed that notwithstanding the views of the abolitionist to the contrary, a very large segment of people still firmly believe in the worth and necessity of capital punishment for the protection of society. In this case appellant was convicted for the murder of his wife and he underwent life imprisonment. On being released from jail he came to stay with his cousin Hukam Singh. This was objected to by Hukam Si ngh’s wife and son and the appellant, therefore, developed a grievance against the family. While Hukam Singh and his wife were away in another town the appellant taking advantage of the situation killed his son and his two sisters and grievously injured a third one in an unusually brutal manner. He was awarded death sentence. High Court conformed his death sentence. With regard to the application of Art. 19 of the constit ution in cases under section 302 IPC the Supreme Court observed that section 302 prescribes death or imprisonment for life as penalty for murder. It cannot reasonably or rationally, be contended that any of the rights mentioned in Art. 19(1) of the Constitution confer the freedom to commit murder or, for the matter of that, the freedom to commit any offence whatsoever. Therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Art.19. In pith and substance, penal laws do not deal with the subject-matter of right enshrined in Art. 19(1). The Supreme Court observed that they are of the opinion that the deprivation of freedom consequent upon an order of conviction and sentence is not a direct and inevitable consequence of the penal law but is merely incidental to the order of conviction and sentence which may or may not come into play, that is to say, which may or may not be passed. In view of it, the Supreme Court was of the opinion that Sec. 302 of the Penal Code does not have to stand the test of Art. 19(1) of the Constitution. It may be inferred that neither retention nor abolition of death sentence can be justified in absolute terms. The desirability of this punishment, by and large, depends on the nature of the crime and the circumstances associated therewith. The classification of different types of homicides can be made on the basis of social environment and personality of the offender. Therefore, the efficacy of death penalty in such cases should be judged in the light of the surrounding conditions. The Report of the Convention of International Congress of Criminal Law concluded that the general consensus was clearly in favor of retention of death penalty though its use may be restricted to “rarest of rare cases”. Justice Krishna Iyer justified retention of capital punishment though to be used sparingly. Justice HIdayatullah observed that the doctrine of “rarest of rare case” evolved in the Indian jurisprudence for the use of death penalty is capable of discounting the possible errors and abuse of this sanction and, therefore, a dispassionate approach to this problem in the context of the mounting crime was most necessary. The Law Commission in its report observed that even after all the ar guments in support of abolition of capital punishment are taken into account, there does not remain a residium of cases where it is absolutely impossible to enlist any sympathy on the side of the criminal. The Commission further expressed a view that ‘ret ribution’
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involved in capital punishment does not connote th e primitive concept of ‘eye for an eye’ but is an expression of public indignation at a shocking crime, which can better be described as ‘reprobation’.” The Law Commission strongly feels that capital punishment acts as an effective, deterrent “which is the most important object and even if all objects were to be kept aside, this object would be itself furnish a rational basis for its retention.” In its concluding remarks, the Commission observed that having regard to the peculiar conditions prevalent in India and the paramount ne ed for maintaining law and order in the country, we cannot risk the experiment of abolition. This is perhaps the most appropriate approach to the problem of capital punishment so far Indian Criminal justice system is concerned. In the IPC eight provisions provides for death sentence for certain specified offences. The Supreme Court noted that IPC contained fifty-one sections which prescri be life imprisonment for various offences. The basic difference between Section 302 and the other sections was that whereas under those sections life imprisonment is the maximum penalty which can be imposed, under Section 302, it is the minimum sentence which has to be imposed. The Court, however, made it clear that the r uling in Bachan Singh V. State of Punjab upholding the constitutional validity of death sentence could not govern death penalty prescribed in the IPC. The members of the judiciary are sharply divided on the crucial issue of life or death sentence. Those who support abolition argue that death penalty is degrading the contrary to the notion of human dignity; it is irrevocable and an expression of retributive justice which has no place in modern penology. The retentionists, on the other hand, justify capital punishment as a social necessity having a unique deterrent force. After the Amendment Act 1955, the Judge had the discretion to commute the sentence of death to that of life imprisonment but in case he considered the imposition of death sentence necessary he had to state the reasons as to why a lesser penalty would not serve the ends of justice. The CrPC also contains a provision regarding death sentence. Section 354(3) of the Code provides that while awarding the sentence of death, the Court must record “special reasons” justifying the sentence and state as to why an alternative sentence would not meet the ends of justice in the particular case. Justice Krishna Iyer observed that the special reasons which the section speaks of provides reasonableness as envisaged in Article 19 as a relative connotation dependent on a variety of variables, cultural, social, economic and otherwise. The CrPC further requires that the sentence of death imposed by Sessions Judge can be executed only after it is confirmed by High Court. That apart, Section 235(2) of the Code further casts a statutory duty upon the court to hear the accused on the point of sentence. Section 302 casts a heavy duty on the Judge, of choosing between death and imprisonment for life for the person found guilty of murder, is now expected to be discharged in a highly responsible manner by complying with the provisions contained in CrPC so that the principle of natural justice and fair play holds its away in the sphere of sentencing. These provisions also help the Judge to individualize sentencing justice and make it befitting to the crime and the criminal. Besides the statutory provisions, the Constitution of India also empowers the President and the Governor of the State to grant pardon to the condemned offender in appropriate cases. A perusal of some of the Supreme Court decisions involving death penalty would reveal that sudden i mpulse or provocation uncontrollable hatred arising out of sex indulgence, family feud or land dispute, infidelity of wife or sentence of death hanging over the head of the accused for a considerable long period of time due to law’s delay, have been acce pted as extenuating circumstances justifying lesser penalty of life imprisonment instead of death sentence. Following the ruling laid down in Bachan Singh, the Supreme Court upheld the death sentence of the accused in Machi Singh V. State of Punjab, on the ground that the murder committed was of exceptionally depraved and heinous in character and the manner of its execution and its design would put it at the level of extreme atrocity and cruelty. The accused in the instant case has killed two innocent and helpless women. Their Supreme Court opined that the ‘rarest of rare’ cases doctrine was clearly attracted in this case and that the sentence of death was perfectly justified.
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While deciding this case the Apex Court realized that the ‘rarest of rare cases’ doctrine had caused ‘inner conflict’ in the minds of the Judges because it was left much to the judicial discretion to decide whether the case fell within the category of rarest or rare case or not. Hence, the Supreme Court laid down a five-point formula based on the manner in which the murder was committed and the motive, nature and magnitude of the crime and the personality of the victim. The factor which the Court was expected to take into consideration for this purpose may be briefly stated as follows: 1. The manner in which the offence of murder was committed. If it was committed with extreme brutality such as burning the victim alive or cutting body into pieces, it would be a f it case to be considered as rarest of rare case. 2. When the manner reveals depravity and meanness of murdered e.g. crime being committed for material gain. 3. When the murder is socially abhorrent such as bride burning or killing of Harijan. 4. When the magnitude of the offence is enormous as in case of multiple murders. 5. When the victim is an innocent child, a helpless woman, or a reputed figure i.e. the case of a political murder. The Court however, cautioned that these guidelines should not be applied too literally. Instead, the Judges should interpret the provisions rationally to ascertain whether ‘collective conscience of the community has been shocked and it will expect the Judge to award the death penalty. The Supreme Court decision in Kishori V. State of Delhi, consequent to the assassination of Mrs. Indira Gandhi, large scale rioting and arson took place in different parts of Delhi. The Charges against four accused persons including Kishori were framed. Having been sentenced to death by the trial court and confirmed by High Court the appellant filed SLP in the Supreme Court challenging the judgment of the High Court. During the hearing, it was stated that Kishori was allegedly involved in several incidents which gave rise to seven cases, four of which ended in his acquittal and in three cases, he was sentenced to death. The Supreme Court observed that the law is well settled by reason of the decision of this Court that capital punishment can be imposed in the rarest of rare cases and if there are aggravating circumstances. Experts in criminology often express a view that where there is mob-action, as in the instant case, there is diminished individual responsibility unless there are special circumstances indicating that a particular person had acted with any predetermined motive such as use of weapon not normally found. In the instant case, all the witnesses speak that there was a mob attack resulting in the death of three persons. Though the appellant is stated to be responsible for inflicting certain knife injuries, yet it is not clear whether those injuries themselves were sufficient to result in death of the deceased person. The acts of the mob of which the appellant was a member cannot be said to be the result of an organization of group indulging in planned violent activities formed with any purpose or scheme which can be called as an organized activity. The Supreme Court, therefore, decided that “on the totality of the circumstances, this is not a case which can be called “a rarest of rare case” which warrants imposition of maximum sentence of death. Hence while confirming the conviction of the appellant on charges framed against him, the sentence is reduced from capital punishment to that of life imprisonment and with this modification, the appeal stands dismissed. In Mohd. Chaman V. State of Delhi, the accused had committe d rape on a minor girl aged one and a half years when her parents were away from home. As a result of this brutal and ghastly act the child suffered several injuries and died. The trial Court convicted the accused and sentenced him to death which was confirmed by High Court. On appeal, the Supreme Court held that, (1) the extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offenders also. The Court held that in exercise of its discretion in the above cases the court shall take into account the following circumstances_ (i)
That the offence was committed under the influence of the extreme mental or emotional disturbance.
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(ii) (iii) (iv) (v) (vi) (vii)
The age of the accused. If the accused is young or old, he shall not be sentenced to death. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat of society. The probability that the accused can be reformed a nd rehabilitated. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. That the accused under the duress or domination of another person. That the condition of the accused showed that he was mentall y defective and that the said impaired his capacity to appreciate the criminality of his conduct.
In the instant case the crime committed is undoubtedly serious and heinous and reveals a dirty and perverted mind of a person who has no control over his carnal desires. The case is one which deserves humanist approach and therefore capital sentence imposed against appellant is commuted to imprisonment for life. In Edigma Anamma V. State of A.P., the appellant was convicted of double murder, of a woman and her tender child, because of the jealousy generated by the fact that the deceased woman had developed amorous relationship with the same man, a widower, with whom the appellant had already been carrying on an affair. The stabbing of two persons was planned and ghastly in nature and careful steps were taken to destroy the evidence by attempting to burn the body of the deceased woman. The Supreme Court observed to justify its preference for life imprisonment to capital sentence. The Court said that here the criminal’s social and personal factors are less harsh, her femininity and youth, her unbalanced sex life and expulsion from the conjugal home being the mother of a young boy-these individually inconclusive and cumulatively marginal facts and circumstances-tend towards award of life imprisonment. The proper approach to the problem, perhaps will be that capital punishment must be retained for incorrigibles and hardened criminals but its use should be limited to ‘rarest of rare cases’. In view of the present deteriorating law and order situation in India, total abolition of death sentence would mean giving a long rope of dangerous offenders to commit murder and heinous crimes with impunity. The Supreme Court in Allauddin Mian V. State of Bihar has stressed on the penal aspect of death sentence and observed that provisions of the CrPC require the sentencing Judge to state reasons for awarding death sentence and giving an opportunity to the condemned person to be heard on the point of sentence, satisfy the rule of natural justice and fair play. In this case the accused persons came with deadly weapon in the house of his target. On seeing the target they shouted to kill him. The person ran into a room to arm himself where his wife pr evented him. At that time two daughters of his daughters were playing outside the room. Having failed to get him, accused gave farsa blow on the head of the daughters and killed them. In the instant case, the Apex Court noted that the trial Judge had not attached sufficient importance to mandatory requirements of the above provisions and the High Court confirmed the death sentence without having sufficient material placed before it on record to know about the antecedents of the accused, his socioeconomic conditions, and impact of crime etc. which rendered the rat ionale of the Judgment doubtful. In Anguswamy V. State of Tamil Nadu, appellants had a quarrel with some members of a community. A constable came to inquire. He tried to catch the appellants. Both the appellants inflicted injures on different parts of the body of police constable and he died. The Trial Court awarded the death penalty which was allowed by High Court. Here the Supreme Court observed that the trial c ourt failed to take into consideration several relevant factors. AS there was no immediate need for their arrest, no report was made against the appellants and no case was registered against hem for the commission of any offence. The deceased acted over-zealously and attempted to apprehend the appellants. Since the appellants felt that they were being unjustly treated by the deceased and caused the injuries. It cannot be said that the attack was pre-planned. It was rather sudden and actuated by a desire to free themselves. It, therefore, follow that the murder cannot be said to belong to the rarest of rare category warranting the sentence of death. The death penalty is no doubt unconstitutional if imposed arbitrarily but it if administered rationally, objectively and judiciously, it will enhance people’s confidence in criminal justice system.
