• Kakoli Nath

OVERHAULING CAPITAL PUNISHMENT: Changing Dimensions, Forms and Practice


Introduction-


Capital punishment is as fundamentally wrong as a cure for crime as charity is wrong as a cure for poverty.”

-Henry Ford

Crime is a deliberate raid on the peace and order of the society in general and the people in particular. The chief aim of criminal law is to maintain an equilibrium of law and order in the society by punishing those who are found guilty and by doing justice to the victim. The object of sentencing should be to see that the crime does not go unpunished and the victim of the crime as also the society has the satisfaction that justice has been done.

Capital Punishment


Capital is a word derived from the adjective form 'Capitlis’ means Principal or Chief.It is a practice of putting someone to death by the state /government /law machinery for a crime committed by him. The act of carrying out such a punishment is known as execution. These crimes that are punishable by death are also known as capital crimes, capital felonies or capital offences depending upon the jurisdiction where the crime is committed. Also, as a matter of fact it is one of the most inhuman, brutal and barbaric punishment awarded for rarest of the rare offences like rape, murder, aircraft hijacking, terrorism etc.


Capital punishment has been accepted as an integral part of our criminal justice and reformative system although always remained a topic of great controversy. The imposition of death penalty as a brutal and barbaric form of punishment goes back to the ancient times where stories are abound in our mythology about destruction of demons who, in blatant abuse of divine powers granted by gods for their devotion and long penance became a deadly menace to the life, property and authority of mortals and the king alike.


In the later eras of the epics and medieval history, the monarch of the land was the head of the criminal justice system, who sitting in his royal court heard both civil or criminal disputes, dispensed justice and awarded punishments or other dispensation by royal decree.


Other methods like death at the stake, throwing the condemned down from a cliff, trampling by elephants, exposing to the bites of venomous snakes and so on were employed at various times for various other crimes, especially those involved in taking life of another human being.

India has retained the 1860 Indian penal Code providing capital punishment for murder. The idea of abolishing death penalty was advocated by various draftsmen and policy makers during the constituent assembly debates between 1947 and 1949, but all was fruitless.


Further, in the next two decades private member bills were floated both in the Rajya Sabha and the Lok Sabha but none were adopted or ratified. It was estimated that between 1950 and 1980, there were 3000 to 4000 executions


Awarding death sentence was an all-pervasive phenomena i.e it was prevalent everywhere and has been a part of all the primitive societies of the world. From the dawn of the civilization till the beginning of the 19th century, capital punishment was the rule even for petty offences. In India death penalty was the main punishment and that is the reason why there were fewer crimes in the society.In England also there were till the end of 18th century, about 200 offences punishable with death.


Today, 56 countries retain capital punishment, 106 countries have completely abolished it de jure for all crimes, eight have abolished it for ordinary crimes (while maintaining it for special circumstances such as war crimes), and 28 are abolitionist in practice.[1]


In the EU, Article two of the Charter of Fundamental Rights of the EU prohibits death sentences. The Council of Europe, that has forty-seven member states, has wanted to get rid of the practice of the capital punishment by its members completely, through Protocol thirteen of the EU Convention on Human Rights. However, this solely affects those member states that have signed and ratified it, and that they don't embrace Armenia, Russia, and Azerbaijan.


India, however has opposed the UN resolution calling for Moratium on death penalty as it goes against the country’s constitution and basic right to determine to determine its own legal system. A 21 of the Indian constitution postulates that “right to Life” cannot be taken except according to due procedure of law. When a court orders capital punishment, that is the “procedure of law “envisaged by law i.e. in article 21 of the constitution. According to article 354 of the code of criminal procedure,death should be by hanging by neck which is one of the modes by which death is caused in India and the only mode by which it is caused.


After independence, Nathuram Godse was the first person to be executed in India by the death penalty in the case of assassination of Mahatma Gandhi. Thereafter, the apex court has suggested the death penalty should only be imposed on the rarest of rare cases in India in Bacchan Singh v State of Punjab[2].


If we consider the emerging trends towards punishment in general as introduction of Juvenile Courts, Probation system, parole and reformation of criminals in prison and their rehabilitation after their release from the parole, it appears that the days are not far when this punishment of capital punishment will not find its place in the penal statutes.


It is reflected by the exceptional execution of death sentences now adays and by the legal aids available to the accused viz a viz the power of commutation by the President under Art 72 of the Indian Constitution as also the power of applying for mercy petitions and curative petitions by which the sole purpose of imposing capital punishment gets defeated.


Further, according to the law, black warrant proceedings ought to take place only after a prisoner has “exhausted all legal remedies”.[3]It is important to understand that criminal law is always and should be harsh as the crime is committed against the whole society not only a particular individual. Our law gives sufficient safeguards to the accused to prove his case but does not give him the freedom to misuse it and manipulate it the way he likes. Death sentence produces a strong deterrence as nothing is as dear to mankind as life and people refrain from repeating such acts in future. Punishing for heinous offences like rape not only prevents such crimes but also brings a sea change in ideology and physiology of the whole society be it the educated, rich or powerful.


A stringent mechanism should be implemented demanding strict action by the police, judicial authorities as well as people as it hampers and maligns not only the entire country’s reputation on a global level but also haunts the families and succeeding generations of both the accused and the victim.


Survey of Literature over the Years-


According to the International, “List of Abolitionist and Retentionist Countries,” Report ACT 50/01/99, April 1999 Report by Amnesty International The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code of King Hammurabi of Babylon, which codified the death penalty for 25 different crimes. The death penalty was also part of the Fourteenth Century B.C.’s Hittite Code; in the Seventh Century B.C.’s Draconian Code of Athens, which made death the only punishment for all crimes; and in the Fifth Century B.C.’s Roman Law of the Twelve Tablets. Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement.[4]


The Tenth part of Rig Veda and Eighth Part Of the Atharva Veda through shlokas has referred to the penalty of death by hanging[5], shooting[6] and thunderbolt[7] and electrocution.In the Mahabharata XII, Pitamah Bhishma once asked King Yudhishthir to say without hesitation a person acting interest of his kingdom whoever he may be. This reference indicates that, it was done for the protection of the society and maintaining peace in the kingdom. [8]Bhishma states that 'danda' is the means placed in the hands of the king for the smooth running of all human affairs on the path of Dharma.


In the book of Pringle Kennedy, History of Great Mughals (vol II) Pg 77-The primary source of the Mohammedan criminal law was the Quran. Afterwards followed the traditions as to the precepts and usages of the prophet,consensus of Jurists and analogical deductions. Jadunath Sarkar, Mughal administration (1952), p 100 ibid, p. 21 quotes that Indian Quazis and theologians compiled a digest of Islamic law namely fatwa-I -Alamgiri under the orders of Aurangzeb.[9] During Aurungzeb’s reign death penalty was unknown, he never used to pass orders of death penalty even though he was very angry.[10]. Even in cases of Murder, a compromise could be made between the parties and some money was paid to the victim which was called the” Price of Blood”.


The Law Commission of India, Thirty fifth Report, Report on Death Penalty ,Vol-I, (1967)-The Law Commission in its Report presented to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death penalty should be retained and that the executive (President) should continue to possess powers of mercy.[11]


Thus, whether there appears to be a gradual shift not only for the reasons for awarding death penalty as well as the modus operandi for awarding such punishment. From, that day we have retained it as a punishment till date but was it sufficient in the modern socio-economic set up?

Mohd. Shamim, Capital Punishment, 1989 (May), 95 Cr.LJ., pp. 52-53-The chief aim of the punishment is to open the eyes of criminals who plan to indulge themselves in criminal, activities. The infliction of the punishment also serves as an cream on the wounded feelings of the society because whenever, a crime is committed, it is not only the victim who suffers on that score, but the conscience of the entire society and the nation at large is shaken to its very foundation It is at the Stage that the state applies a relaxing balm on the wounds of the society by punishing the offender.[12]


D.C. Pande, Criminal Law and Procedure, (Annual Survey of India, 1973) has justified the Capital punishment and has said that it has been justified from the earliest times, with reference to retributive and deterrent concepts - "An eye for an eye, and a tooth for a tooth", a sort of vengeance which has been attributed to man from the early days when society had not developed into a body of responsible citizens. Capital punishment for murder and other serious offences is said to have come into existence with the emergence of modem State and its growing recognition of the obligation to maintain peace and order at any cost. It is to protect the humanity and punish those who act against the rudimentary principle of Live and Let Live.[13]


S.K. Kumbhaj, Death Penalty: Indian Penological Retrospect, 311 (Deep and Deep Publication, Delhi , 2005) quotes The theory of retribution emphasis retention of death penalty for heinous crimes on three counts viz. (I) vengeance (ii) punitive and (iii) reprobation.[14] R.P. Updhaya, Death Penalty in India, CIL Q(J), 1992, p. 48 quotes some opinions of various legal experts regarding the deterrent effect of capital punishment:[15]


The British Royal Commission after making an exhaustive study of issue of capital punishment & its deterrent value in its report (1949-53) has concluded that 'Prima facie the penalty of death is likely to have a stringent affect as deterrent to normal human beings than any other form of punishment.


Majumder, Sanjoy. "India and the death penalty." BBC News 4 August 2005.quotes that Capital punishment is legally valid in India. It has been carried out in five instances since 1995, while a total of twenty-six executions have taken place in India since 1991, the most recent of which was in 2015[16].


VENKATESAN, V. , (7 September 2012). "A case against the death penalty". Frontline -The Supreme Court in Mithu vs. State of Punjab struck down Section 303 of the Indian Penal Code, which provided for a mandatory death sentence for offenders who committed murder whilst serving a life sentence[17]


"Centre sends final opinion to President on 27 mercy petitions". The Times of India by Vishwa Mohan on May 5 , 2009- the author quotes About 26 mercy petitions are pending before the president, some of them from 1992. These include those of Khalistan Liberation Force terrorist Devinder Pal Singh Bhullar, the cases of slain forest bandit Veerappan's four associates—killing 21 policemen in 1993; and Praveen Kumar for killing four members of his family in Mangalore in 1994.[18]


President Pratibha Patil gives life to dead man". The Times of India. 23 June 2012-In June 2012 it became known that Indian president Pratibha Patil, commuted the death sentence of as many as 35 convicts to life imprisonment, including four on the same day (2 June), which created a storm of protest. This caused further embarrassment to the government when it came to light that one of these convicts, Bandu Baburao Tidke—convicted for the rape and murder of a 16-year-old girl—had died five years previously from HIV.[19]


Thus, the laws ensures sufficient safeguards for balancing human rights of even the accused but the accused misuse them to their own favor which defeats the very purpose for which they are granted i.e. speedy trials and justice itself. Further the offences are committed with great brutality so punishment should also be grave.


Thus, the courts in India have assumed a pro active role and issued numerous guidelines and list of aggravating and mitigating circumstances where death penalty should be granted. Every case is slightly different from the rest. So, a straight jacket formula cannot be laid down in every case. A balanced should be adopted by the courts in India and be alive to the mode and manner of committing the crime, the personal relationships of the parties, the trauma caused and pain suffered by the victim are all relevant factors to be considered while awarding a death sentence. Though the scope and application of death sentence has been considerably reduced in India post-Independence, yet it still rightly manages to find a place in the Penal statutes of this country.


SUGGESTIONS-


1. New laws and guidelines should be framed for the new barbaric crimes and also be implemented fully in letter and spirit.


2. Granting of paroles, probation system, commutation of sentences and granting of curative and mercy petitions should not be used as a dilatory tactic and therefore trials should be held speedily so that justice should be fully served as “Justice delayed is justice denied.”

CONCLUSION-


The changing eras of history certainly point out the need for retaining this punishment and there has also been a drastic change in the mode, methodology and mannerisms of awarding this punishment. At the same time, the nature of grounds and reasons for awarding the same has also undergone a sea change.


Considering the modes and current practices which are adopted for executing the death sentences; are they sufficient in the light of changing socio-economic nature of crimes and psychopathic aptitude of the brutal and hardened killers?


The rationality and pedagogy of awarding death sentence is futile if the society uses morality and social ethics to shield the perpetrators of crime. Further, the human rights act as a weapon not as a shield on the criminal law system and protects the criminal not the innocent. Thus, to end-

Fiat justitia ruat caelum

"Let justice be done though the heavens fall." 

-SUBMITTED BY-

Shivani Johri

Amity Law School, Delhi

[1]"117 countries vote for a global moratorium on executions". World Coalition against the Death Penalty. Archived from the original on 2 April 2015. [2]AIR 1980 SC 898 [3]DEBAYAN ROY, Black warrant hearing in 16 December gangrape-murder case today. This is what the law says; 7 January, 2020 12:27 pm IST [4]International, ​“List of Abolitionist and Retentionist Countries,” Report ACT 50/​01/​99, April 1999 [5]Rigveda 7/104/9; Atharva veda 8/4/9 [6]Atharveda 1/16/4 [7]Atharveda 1/7/7 [8]Mahabharata XII, 57/5-7 [9]Jadunath Sarkar, Mughal administration (1952), p100 ibid, p21 [10]Pringle Kennedy, History of Great Mughals (vol II) Pg 77 [11]Law Commission of India, Thirty fifth Report, Report on Death Penalty ,Vol-I, (1967)

[12]Mohd. Shamim, Capital Punishment, 1989 (May), 95 Cr.LJ., pp. 52-53 [13]D.C. Pande, Criminal Law and Procedure, (Annual Survey of India, 1973) [14]S.K. Kumbhaj, Death Penalty: Indian Penological Retrospect, 311(Deep and Deep Publication, Delhi ,2005) [15]R.P. Updhaya, Death Penalty in India, CIL Q(J), 1992, p. 48 [16]Majumder, Sanjoy. "India and the death penalty." BBC News 4 August 2005. [17]VENKATESAN, V. (7 September 2012). "A case against the death penalty". Frontline. Retrieved 30 July 2013 [18]"Centre sends final opinion to President on 27 mercy petitions". The Times of India by Vishwa Mohan on May 5,2009 [19]"President Pratibha Patil gives life to dead man". The Times of India. 23 June 2012

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