Capital punishment and its validity

THIS ARTICLE WAS WRITTEN BY AYUSHMAN PATNAIK, A STUDENT OF MAHARAJA AGRASEN INSTITUTE OF MANAGEMENT STUDIES, GGSIPU

“It is the deed that teaches, not the name we give it. Murder and capital punishment are not opposites that cancel one another, but similars that breed their kind”. – GEORGE BERNARD SHAW, Maxims for Revolutionists

What is capital punishment? Can capital punishment be awarded for every crime executed? The answer to this is, punishment is the infliction of a type of penalty on an individual who has performed an offence. However, capital punishment is a type of punishment in which a person is given a death sentence by the state for heinous, grievous crimes as the offender may be considered as a grave danger to society. Capital punishment is also sometimes referred to as the death penalty, these two terms are considered synonyms of each other and they are not different. The meaning or definition of the crimes for which capital punishment is awarded is different in different countries but still, a death sentence is an implication for capital punishment all over the world.

Historical Background

Throughout history, most of the societies have been using capital punishment as a penalty for offenders, either for religious or political rebels. Historically the implementation of the death penalty was regarded as torture, and most of the executions were done in public. Capital punishment has been present since the Vedic period. During the period of Hindu society, capital punishment was understood as torturing of the individual to such extent in order to induce a deterrent effect in the society. Also, during the time of Ramayana and Mahabharata, the king was obliged to protect the kingdom from the wrong-doer and this could only be done by the killing of the wrong-doer. In the Mughal era, the great Akbar had the view that the death penalty must be given at the end after presenting all the possible solutions. Also, the death penalty must be given only by the order of king emperor and no other authority had the right to do so. Similarly, in the British era, the motive of the act mattered the most rather than how the crime was performed. There were various amendments made with regard to capital punishment during the British rule. The Britishers were also in favour of capital punishment and they regarded capital punishment as ethical during that era.

At present six countries are still implementing capital punishment, 103 countries have absolutely repealed capital punishment for all crimes, six have scrapped death penalty for ordinary offences only, and 50 have abolished it. Roughly every country in the world forbids the execution of persons who were under 18 at the time of their crimes; As of 2009, such executions have only been carried out by Iran, Saudi Arabia and Sudan. Under international law, these executions are not allowed.

Debate over Legality

Capital punishment is a controversial topic and it has been a topic for debate since its introduction to society. Some eminent jurist thinks that it is the best punishment for a serious offender but some jurist believes that this violates the basic human right i.e. Right to life that every individual has since he/she is born. The argument regarding the question of violation of the right to life is somewhat correct as no person should have the right to kill another person. However, if the circumstances are clearly examined then the person to whom the capital punishment is given, that person has also performed a serious and a heinous crime like murder, mass killing (few cases in which capital punishment is awarded) then that person can also be not left for just imprisonment. In simple terms, the validity of capital punishment is a big question mark for every country which is still practising it.

India has retained capital punishment on the basis that it will only be issued in the “rare cases” and “special reasons” only. Although the legislature or the Apex Court did not address what defines a rarest of rare cases or special reasons. In India, some of the offences in which capital punishment is given are- criminal conspiracy, murder, waging or attempting to wage war against the Government of India, abetment of mutiny, dacoity with murder and others.

Till now India has not witnessed any specific movements regarding abolishment of capital punishment. Although there have been some attempts made regarding abolishment of the death penalty but only a few were able to gain attention and only a few steps have been taken towards it. There have been various amendments made about the interpretation of the death penalty. But none were successful for the abolition of it.

Relevant case laws

The question of the validity of capital punishment has been discussed in various cases:

• Jagmohan Singh vs State of U.P[1], Supreme Court by supporting the constitutionality of death penalty held it does not only prevent the crime but also it prevents the society. The honourable court also held that India could not take a risk by experimenting with the abolition of death penalty but court clear a standard that death penalty will be going to be an exception and not the rule in a sentence. The circumstances of a case will decide the awarding of capital punishment which is only to protect state security, public order and interest.
• Rajendra Prasad vs State of U.P[2], Justice Krishna Iyer stated that death penalty is violative of articles 14, 19 and 21, But year a later in the landmark case of Bachan Singh vs State of Punjab[3], the court held that capital punishment should be given in brutal murder case or in most heinous crimes i.e. in rarest of rare cases. Also, it was stated that death penalty, as a punishment for murder is not unreasonable and hence violative of Articles 14,19, and 21, of the Constitution of India, because the “public order” defined by clauses (2) to (4) of Article 19 is different from “law and order”.

• Mithun vs State of Punjab[4], the Supreme Court held that capital punishment is actually unconstitutional. While. While the subsequent law on narcotics and violent offences prescribes a mandatory death sentence, the Supreme Court did not explicitly find the death penalty unconstitutional. Also, for these offences, courts in India did not, in fact, impose the mandatory death penalty.

International Status of Capital Punishment

The status of capital punishment at international level in ICCPR is that it does not abolish the practice of the death penalty, however, in recent years many treaties and agreements are being enforced in favour of repealing capital punishment. Article 6 of ICCPR [5]clearly states the limitations on the imposition of death penalty and must be sentenced only in the cases of serious crimes only. It also provides that “nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any state party to the present covenant.

The death penalty exists at least de jure in the Caribbean countries, with the exception of the Dominican Republic and Haiti which scrapped it in 1969 and 1987. The last Caribbean execution, and the last out of the United States of America, was in Saint Kitts and Nevis in 2008.[6]

There are a number of countries in Africa which still uses capital punishment. Examples of countries which execute prisoners are Botswana, Egypt, Equatorial Guinea, Libya, Somalia, South Sudan, Sudan and Nigeria. Burkina Faso abolished capital punishment for ordinary crimes in 2018, and a moratorium was declared by the Gambia as a first step towards abolition.[7]

In all European nations with the exception of Belarus and Russia, the death penalty has been absolutely abolished, the latter holding a moratorium and has not carried out an execution since 1999. The absolute prohibition of the capital punishment is recognised in both the European Union Charter of Fundamental Rights (EU) and two commonly accepted principles of the Council of Europe’s European Convention on Human Rights and is therefore considered a fundamental principle.[8]

Conclusion

Thus the above discussion shows that the concept of capital punishment is still mixed up and the validity is not clearly depicted by any statue, treaty etc. the question still lies upon the countries which are still practising capital punishment that if it still violates Right to life and Right to equality. Capital punishment is given in rare cases or due to special reasons only, although proper meaning or interpretation of the terms rare cases and special reasons is not properly mentioned in any statue. Capital punishment is extremely useful to society and would increase the trust of civilians who might otherwise fear to leave their homes. Hence, for the majority, capital punishment is beneficial and more people are satisfied. Capital Punishment also alerts and discourages potential offenders from committing capital offences and it has also played an important role in improved public safety. So, the question regarding the validity of capital punishment still lies before the world.

[1] AIR 1973 SC 947

[2] AIR 1979 SC 916

[3] AIR 1980 SC 653

[4] 1983 (2) SCC 277

[5] https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf

[6] https://theappeal.org/capital-punishment-in-the-united-states-explained-aa01ef6ef1bb/

[7] https://www.africanews.com/2018/02/19/gambia-suspends-death-penalty-en-route-to-abolition/

[8] http://www.worldcoalition.org/International-law-abolition-protocols-ratified-last-month.html