Legal

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This Blog is written by Harsh Sonbhadra from Vivekananda Institute of Professional Studies (VIPS), Delhi. Edited by Lisa Coutinho.

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INTRODUCTION

India, being a democratic nation, is yet a developing country. At the same time, the crime rates in India are increasing at a higher pace. There are lots of legislation in India to stop and control crimes, but the crime rates are increasing as the prescribed punishments are just not sufficient. The punishment ought to be extreme to reduce the crime rate. All punishments are based on the same motive that a wrongdoer must pay for his wrongdoing. There are different kinds of punishment in India, such as capital punishment, life imprisonment, imprisonment for a definite term, etc.

The death penalty is known as the most extreme type of punishment. This article clarifies two significant theories identified with capital punishment, namely reformative theory, and preventive theory. This article also explains the rarest of rare cases, and mentions about abolitionist and retentionist countries, also capital punishment in ancient India. This article has a detailed view of capital punishment in India, and also the methods of its execution in India.

All punishments depend on a similar recommendation, for example, there must be a penalty for wrongdoing. There are two principal purposes behind inflicting the punishment. One is the conviction that it is both right and just that an individual who has fouled up should suffer for it; the other is the conviction that dispensing punishment on wrongdoers debilitates others from fouling up. The death penalty additionally lays on a similar suggestion as to other punishments.

Punishment is the coercion used to authorize the law of land which goes about as one of the mainstays of present-day civilization. The State must rebuff the lawbreakers to keep up lawfulness in the general public. Before there wasn’t a particular law or request for such violations, and the quantum and degree of discipline was to a great extent subject to the King. With time present-day speculations of discipline were created, and wilful accommodation of our privileges and capacity to keep up lawfulness was given to the state.

The most brutal or the highest punishment awarded in the present time is Capital Punishment. The death penalty is the punishment that involves the legitimate killing of an individual who has carried out a specific crime prohibited by the law [1]. Capital punishment is also called the Death Penalty, which is sanctioned by the government wherein an individual is killed by the state as a punishment for the crime he committed.

ANCIENT & MEDIEVAL LEGAL HISTORY OF INFLICTING CAPITAL PUNISHMENT

The history of States enacting capital punishment goes back thousands of years to the Babylonian Empire in 1800 BCE.[2] Throughout history, capital punishment has been inflicted in various forms, including but not limited to beheading, flaying, burning, throwing down steep rocky cliffs, crushing the head by an elephant, etc.
The Hammurabi Code of the Babylonian Empire in 1800 BCE prescribed capital punishment for about 20 different crimes, including theft and perjury. Ancient Greece employed Draco’s law of death penalty for all crimes, thus also giving literature the word “Draconian” meaning extremely harsh. During the Medieval period, public execution was considered as an accepted form of punishment in Europe, with beheading being the most common and replaced by hanging in the 10th Century AD. [3]

MODERN LEGAL HISTORY OF INFLICTING CAPITAL PUNISHMENT

The modern legal history of death penalty laws can be traced back to Britain. England, in 1668, had around 50 offenses for which the punishment was death. By the beginning of the eighteenth century, this number rose to 222 wrongdoings, and included critagemes like making counterfeit stamps, felling of trees, stealing, robbing, and so forth. [4]

From the Eighteenth Century, be that as it may, the pattern in England was to keep away from capital punishment, and juries wanted to grant transportation to American provinces. This was helped by the Transportation Act, 1717 which regulated the system of transporting criminals to work in American colonies with a term of indentured servitude.

The Judgment of Death Act, 1823 followed this trend of avoiding awarding capital punishment and made it discretionary for all the crimes save for murder and treason. By 1861, the number of crimes punishable with death was brought down to just 5, and included treason, espionage, murder, piracy, and arson in the royal dockyard. Later, in 1868, public executions came to be banned.

Throughout the 18th and 19th Centuries, various European nations started abolishing capital punishment for various offenses. In Britain, it wasn’t until 1965 when the Murder (Abolition of Death Penalty) Act, 1965 was passed that the death penalty for the crime of murder came to be replaced with a sentence of life imprisonment. By 1998, the death penalty was completely abolished in the United Kingdom.

THE LEGISLATIONS OF CAPITAL PUNISHMENT IN INDIA

India has, since ancient times, provisions for capital punishment. One of the wildest forms of capital punishment, in the past time, included being crushed by an elephant, and was called gungarao. [5] The Manusmriti prescribed the death penalty for murders to abstain people from committing the act, and to prevent a state of anarchy. During the Mughal period, offenders were dressed in buffalo skin and made to stand in the sun; the shrinking hide eventually led to the death of the offender who died in great agony.

Every one of these practices was halted under the British legal administration, with hanging being the main type of incurring the death penalty. [6] The Indian penal code (IPC) of 1860 prescribed death as the punishment for various crimes during the colonial era. It wasn’t until 1931 that the issue of the death penalty was brought up in the Legislative Assembly. This was done by Shri Gaya Prasad Singh, who wished to abolish the death penalty for offenses under the IPC. However, his motion was never passed.
The Constituent Assembly Debates dealt with the question of capital punishment by questioning its judge-centric nature, the effect of the punishment among the families of the poor, the possibilities of error, and its arbitrariness.
Pandit Thakur Das Bhargava commented during the debates on capital punishment about the possibility of an error where he stated that a person doesn’t usually get justice in the courts and gave examples of cases of riots where it is often difficult to hold specific people liable. According to him, all persons sentenced to death should get to be able to appeal the sentence as a matter of right.

Dr. B.R. Ambedkar, the chairman of the Draft Committee of the Constituent Assembly, favored abolishing capital punishment. He said that to end this controversy it’s important to abolish death sentence and also stated about the principle of non-violence which has been followed by the nation for so long. [7]
After independence, capital punishment was sustained for various crimes under the Code of Criminal Procedure (CrPC) of 1898. Courts were required to state reasons in their judgments if they provided a punishment other than capital punishment for offenses where capital punishment was an option under Section 367(5). The said section was repealed by the Parliament in 1955. [8]

The re-enacted CrPC, 1973 brought another reform in the death penalty laws. Under the amended Section 354(3), the courts now had to state special reasons for awarding a sentence of death. [9] There has, thus, been a change in the attitude towards inflicting the death penalty. The judgments of the courts of India give us an insight into the direction which India is taking regarding its death penalty laws.

WHAT GAVE SANCTION TO THE DEATH PENALTY

If we take a closer look at history, we can see that what enabled capital punishment to become popular as a means of punishing the offender are the various theories of punishment. These theories directly reflect the thought processes behind supporting a punishment as harsh as the death penalty. These are:

1) Deterrence Theory: This theory aimed to deter or prevent a person from doing a crime or repeating it in the future. To enable this deterrence, harsh punishments are imposed by law so that a lesson or message can be sent to the other members of the society regarding the consequences of committing the same crime.

The deterrence theory has two components: (a) punishment is awarded to the offender to prevent him/her from repeating the offense, and (b) presuming that the other people would not commit the same crime due to the fear of the punishment that would be awarded.

The deterrence theory kept a check on the numerous crimes in the ancient and the medieval period, and is still popular today. Deterrence has been taken as one of the most common rationales expressed for capital punishment. Specific deterrence is a kind of deterrence that aims to stop convicted offenders from committing a crime again. Invoking a death penalty serves as specific deterrence as the executed offender will not be able to harm society again. [10]

Be that as it may, the most widely recognized explanation behind the hypothesis to win is the presumption of the individuals’ dread of death more than the dread of being detained. For this theory to work, it is to believe that nothing can be more sacred to a person than that person’s life. It believes that while a person would be willing to accept a lesser form of penalty for a crime, he would not be willing to lose a life as a penalty for the crime committed. [11]

2) Retributive Theory: The basis of this theory is the principle of “Lex talionis” which is a Latin term suggesting “an eye for an eye”. Retribution means inflicting punishment on the person as a means of vengeance for committing a wrongful act. Thus, the objective of this theory is to take revenge and not reform the criminal.

The idea behind this theory dates back to the earliest civilizations of human history with the Hammurabi Code of the Babylonian Empire stating that if a man breaks the bone of another, his bones shall also be broken.

Under this theory, there is a sense of moral responsibility. Thus, for example, if a person steals, he or she is morally responsible for stealing and because of this moral responsibility, he or she deserves punishment. Retributivists believe that the punishment must be proportional to the offense.

However, applying this theory strictly leads to counter-intuitive complications. For example, it leads to the judgment that robbers should be robbed, arsonists must have their houses burned down and rapists should be raped.

3) Preventive Theory: The theory aims to prevent the crime itself. It does this by keeping the criminal away from society to prevent future crimes. The death penalty and life imprisonment are justified under this theory since they intend to keep the offender from entering the society again.

Prevention has consistently been the rule point of punishment. Even if punishment intends to inflict pain or loss on the offender, it would almost always aim to send a message to society about not repeating the same offense. With the death penalty, the criminal is permanently disabled from committing any other crime. There is an assurance that the offender will not be able to harm society again.

THE INDIAN COURTS’ CHANGING ATTITUDE ON DEATH PENALTY

The case of Jagmohan Singh v. State of U.P. [12] was the first in several to challenge the death penalty laws in India. It was argued that the death penalty violated Article 14, 19 and 21 of the Constitution of India. It was also argued that the courts had unguided discretion in awarding the death penalty. An interesting fact about this case is that a decision of the US Supreme Court, i.e. Furman v. Georgia [13] was also cited by the Petitioners.
The Furman’s case was a 1972 case in the US Supreme Court wherein the Court struck down all the schemes imposing capital punishment by holding that the death penalty was the constitution of cruel punishment and violated the Constitution. However, this was merely a moratorium which lasted until 1976 when another judgment of the US Supreme Court, i.e. Gregg v. Georgia [14] reversed the earlier decision of the court and held that the imposition of the death penalty does not automatically violate the Eighth and the Fourteenth Amendment of the US Constitution, as was previously held in the Furman’s case.

The question of what are “special reasons” for the passing of sentence of death under Section 354(3) of the CrPC, 1973 arose in the case of Rajendra Prasad v. State of Uttar Pradesh [15]. The Court held that the special reasons under Section 354(3) identify with the criminal, and not to the wrongdoing itself. It also held that the retributive theory is no longer valid and that deterrence makes deprivation of life practicable. The case of Dalbir Singh v. State of Punjab [16] relied on Rajendra Prasad’s decision to confirm a death penalty to two people who brutally shot and murdered three people.

Be that as it may, around the same time in 1979, another bench of the SC noticed the Rajendra Prasad case to be in opposition to the Jagmohan case in Bachan Singh v. State of Punjab [17]. In this case, the death penalty was challenged as being inhuman, cruel, and degrading. It was argued that the main objective of giving punishment is reformation and rehabilitation, and not retribution. It was also argued that the purpose for which the death penalty was enforced, that of deterrence, had not been proven to be effective. Out of the five judges in the case, four held the death penalty to be constitutional. The court said that the reasons for implicating a criminal to the death sentence should include both the circumstances of the crime and the criminal, thus overruling the Rajendra Prasad case and affirming the Jagmohan case.

This case has been considered as a landmark judgment as the Court for the first time clarified and laid down the principle that the death sentence should only be awarded in the “rarest of rare” cases. It is quoted as saying: “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

Before 1983, mandatory death sentences were awarded for certain crimes. The case of Mithu v. State of Punjab [18] held that the mandatory death sentence is unconstitutional since it does not take into account the various circumstances of each case. By making the sentence mandatory for a class of persons, the Court said, the law effectively deprives the said class of their opportunity to be heard and neither is the court then obligated to perform its duty under Section 354(3) to record special reasons before executing a sentence of death.

In the case of Deena v. Union of India [19], the constitutionality of the death penalty was challenged, but the court instead of delving into this question went into the question of whether execution by hanging was constitutionally valid. Holding that hanging does not involve humiliation, barbarity, or torture, the court rejected the constitutional challenge to the method of hanging.

In T.V. Vatheeswaran v. State of Tamil Nadu [20], it was held by the Supreme Court that delaying the sentence of death by more than two years results in the violation of Article 21. However, the court also held in Sher Singh v. State of Punjab [21], that a delay in enforcing the sentence of death was not entitled or convicted to quash the sentence of death.

The 35th Report of the Law Commission in 1967 recommended that capital punishment should be retained as it said that India could not risk experimenting with abolishing the death penalty. This report was cited in Bachan Singh and the case of Shashi Nayar v. Union of India [22] sought to challenge Bachan Singh for placing reliance on the report from 1967, arguing for the abolishment of the death penalty. However, the SC at the time refused to hear further on the issue due to the unstable law and order situation within the nation in 1991.

The case of Vikram Singh v. Union of India [23] was faced with the question that Section 364A is unconstitutional, since Section 364A awards death penalty for a non-homicidal crime which shouldn’t warrant such an extreme punishment. The Supreme Court, however, denied the Petitioner’s arguments and, while upholding Section 364A, said that the death penalty is only awarded in the rarest of rare cases.

THE NECESSITY OF CAPITAL PUNISHMENT

The death penalty has been in practice for several years, and many of the societies around the world adopted it to create a deterrent effect in the minds of people. The sole purpose of the death penalty was to create fear in the minds of people, and at the same time to eliminate the crime.

In the modern reformative era, the retributive principle of “tit for tat” does not serve any purpose, in fact, it somehow promotes people to take revenge, which leads to crime happening on the daily basis. For example, the property belongs to the father, but after his death, two brothers fight for it due to the unequal distribution of property. Therefore, retribution can only cause more harm rather than serving good for society. [24]

The Convention against Torture and Cruel, Inhuman, or Degrading Treatment or Punishment does not consider imposing the death penalty as a form of cruelty. India has ratified the International Covenant on Civil and Political Rights (ICCPR) and is a signatory to the Torture Convention but has not ratified it. The death penalty has been enforced in India even before independence and continued even after India was free on the colonial rule.

SUGGESTIONS AND CONCLUSIONS

Several judges, both from India and outside, have condemned the death penalty and termed it as a failed experiment. Justice Bhagwati and Justice Krishna Iyer have time and again rose against the death penalty in their judgment while the ex-Chief Justice of India, Y.V. Chandrachud, who formed a part of the majority bench in Bachan Singh’s case, altered his views on the death penalty after his retirement and remarked that it both fails to deter criminals and insert fear into the minds of the criminals from committing a crime punished with death. [25]
Further, the theory behind the idea of punishment isn’t just to provide justice to the aggrieved, but besides this to keep up security and wellbeing in the society. To punish a criminal isn’t only to torture or humiliate him, but there is a higher target to be accomplished, and that is to build a peaceful society. The idea of Punishment under present-day jurisprudence is usually associated with the law of crimes.

We all can learn from the European Union (EU) in the way it deals with nations still retaining the death penalty as a way of reminding them that the death penalty is a practice that has reached its time to go. The EU has a restriction on exchanging merchandise which can be utilized for the execution of people or even their torment. It has constantly voiced its reservations concerning the death penalty in international forums such as the United Nations. [26] In an irreversible and violent act of punishment, we have seen why capital punishment is irrational. Spilling the blood of another man no way justifies how the state only leads to the creation of more victims of legally sanctioned murder. We should all remember that killing the criminal doesn’t kill the crime.

REFERENCES

[1] Roger Hood, Capital Punishment, Encyclopaedia Britannica, https://www.britannica.com/topic/capital-punishment

[2] History of Death Penalty Laws, Findlaw, Thomson Reuters, https://criminal.findlaw.com/criminal-procedure/history-of-death-penalty-laws.html

[3] Execution in the middle Ages, History, https://www.history.co.uk/shows/britains-bloodiest-dynasty/articles/execution-in-the-middle-ages

[4] Michael H. Reggio, History of the Death Penalty, PBS Frontline, https://www.pbs.org/wgbh/frontline/article/history-of-the-death-panelty/

[5] David Goran, Execution by Elephant: A strange method in Ancient India, The Vintage News, https://www.thevintagenews.com/2016/08/14/execution-by-elephant-a-strange-method-of-capital-punishment-in-ancient-india/

[6] N.V. Paranjape, Criminology and Penology 353, (Central Law Publication, 12thed.2011)

[7] Law Commission of India, July 1968, Report on the Punishment of Imprisonment for Life under the Indian Penal Code, Thirty-Ninth Report, Government of India

[8] Code of Criminal Procedure (Amendment) Act, 1955

[9] Code of Criminal Procedure, 1973, Section 354(3)

[10] Ivneet Kaur Walia, Reference of Deterrent Theory in Capital Punishment, Social Science Research Network (Dec. 18, 2009), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1525415

[11] Raymond T. Bye, Capital Punishment in the United States 31-40(George Banta Co., Menasha, West Indies 1919)

[12] Jagmohan Singh v. State of U.P., (1973) 1 SCC 20

[13] Furman v. Georgia, 408 U.S. 238 (1972)

[14] Greg v. Georgia, 428 U.S. 153 (1976)

[15] Rajendra Prasad v. State of Uttar Pradesh, (1973) 3 SCC 646

[16] Dalbir Singh v. State of Punjab, (1979) 3 SCC 745

[17] Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[18] Mithu v. State of Punjab, (1983) 2 SCC 277

[19] Deena v. Union of India, (1983) 4 SCC 645

[20] T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68

[21] Sher Singh v. State of Punjab, (1983) 2 SCC 344

[22] Shashi Nayar v. Union of India, (1992) 1 SCC 96

[23] Vikram Singh v. Union of India, (2013) 16 SCC 450

[24] Atkin I., Death Penalty, 1 British Medical Journal, (1956), http://ndl.iitkgp.ac.in/document/SGhmbVpJeXkyWlA4OFBMVHBtUjMxQlRzM0ZIdlUwWkZxKy9FZHRJLy9Waz0

[25] Lethal Lottery: The Death Penalty in India, Amnesty International India and People’s Union for Civil Liberties (Tamil Nadu & Pondicherry), Amnesty International (May 2008)

[26] Death Penalty: Key Facts about the situation in Europe and the rest of the world, European Parliament, https://www.europarl.europa.eu/news/en/headlines/world/20190212STO25910/death-penalty-in-europe-and-the-rest-of-the-world-key-facts