By Deepti Purwar, Law College Dehradun.
Capital punishment is a legal process where a person is put to death by the state as a punishment for a crime. The capital punishment is in the form of death. The basic purpose of criminal laws of any nation is reformation and not retribution. It is the duty of State to protect the interests of society and capital punishment may be one of the means to achieve it.
The first established death penalty laws date as far back as the 18th 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 14th Century B.C.’s Hittite Code; in the 7th Century B.C.’s Draconian Code of Athens, which made death the only punishment for all crimes; and in the 5th 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. Laws regarding the death penalty varied from colony to colony.
In India, the legal framework for use of Capital punishment is laid down in the Indian Penal Code which permits use of capital punishment for murder in the ‘rarest of rare cases’. Section 302 of the Indian Penal Code says that ‘a person committing murder shall be punished with death, or imprisonment for life and shall also be liable to fine’ and Section 303 of the Indian Penal Code reads ‘Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death’.
Capital punishment is awarded by lower as well as appellate courts, but it is not carried out frequently. According to official statistics, only 1 sentence, that of Dhananjoy Chatterji in 2004 was carried out since the execution of ‘Auto’ Shankar in 1995. Death sentences have recently been given to Mohammad Afzal Guru who was convicted for his role in the December 2001 terrorist attack on the India Parliament, rapist Umesh, where the Supreme Court confirmed the death penalty given by the Karnataka High Court and in the case of Surinder Koli, the serial killer who committed the heinous act of strangulating young girls and raping their dead bodies. Such cases challenge the laws of basic humanity and the death sentence is seen as a welcome punishment by many. Further to this, Ajmal Kasab, the lone surviving terrorist of the Mumbai attacks in 2008 was confirmed death sentence from the Bombay High Court. However, where warranted the state has to take suitable measures to carry out the sentence of the courts since implementation of the same is necessary to achieve the result so intended. The Bombay high court awarded two Kolhapur women, Renuka Shinde and her sister, Seema Gavit, death penalty for kidnapping 13 children and killing nine of them in the 1990s.
Some crimes punishable by death: Murder is punishable by death under Article 302 of the Penal Code and in Bachan Singh v. State of Punjab, India’s Supreme Court held that the death penalty was constitutional only when applied as an exceptional penalty in “the rarest of the rare” cases.
Other offenses resulting in death: according to the Penal Code, if any member of a group commits murder in the course of committing an armed robbery, all members of the group can be sentenced to death , kidnapping for ransom in which the victim is killed is punishable by the death penalty , being a member of an association or promoting an association while committing any act using unlicensed firearms or explosives that results in death, is punishable by death , committing, or assisting another person in committing sati – the burning or burying alive of widows or women – is also punishable by the death penalty , under the Prevention of Atrocities 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 , assisting individuals who are under the age of 18, mentally ill, mentally disabled, or intoxicated in committing suicide is punishable by the death penalty, Terrorism related offenses resulting in death, waging or attempting to wage war against the government and assisting officers, soldiers, or members of the Navy, Army, or Air Forces in committing mutiny are punishable by the death penalty.
Almost half a century after it said the time was not right to abolish the death penalty, the Law Commission of India has started to take a relook at the issue. The Law Commission has issued a public consultation paper on capital punishment with a detailed questionnaire open to the public to send in their views on the issue.
Besides inviting the views of the public, the commission said it was also planning to collect data related to the death penalty from various trial courts, high courts and the apex court. It will also engage law schools to conduct research on the issue. “People have begun to speculate about the end goal of keeping a penalty such as death sentence on the statute book,” said the commission, adding, “In recent years, the Supreme Court has admitted that the question of death penalty is not free from the subjective element and is sometimes unduly influenced by public opinion. In this context it is imperative that a deeper study be conducted to highlight whether the process of awarding capital sentence is fraught with subjectivity and caprice.”
Following the Nirbhaya case, Parliament changed the law to make a second charge of rape punishable with the death penalty. The Criminal Procedure Code requires special reasons to be given for awarding capital punishment and in 1980 the apex court had set the “rarest of rare” criteria in such cases. Each legal challenge to abolish the death penalty has failed, with the SC quoting the 1967 report of the Law Commission which had said:
“Having regard, however, to the conditions in India, to the variety of social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.” India has been hesitant in abolishing capital punishment and had even voted against a United Nations General Assembly resolution in 2007 calling for delay on the death penalty. This action is justified and even people’s consensus is in favor of retaining the same with over 70% of the public voting for continuing the usage of death penalty as a means of punishment. Death penalty is encouraged for heinous crimes. It is a cost effective method for preventing crimes, a lesson to the society that none will be spared for committing crimes.
Although nothing is more inhuman than taking away the human life, for almost eight years between 2004 and 2012, no executions were carried out till the delay was broken with the hangings of 26/11 terrorist Ajmal Kazab and Parliament attack accused Afzal Guru. The motive behind capital punishment is not vengeance for the victims or family of victims. But capital punishment was looked as a means for vengeance.
Critics of the death penalty have pointed to the falling crime rates during this period to tackle the argument that capital punishment acts as a deterrent. The National Crime Records Bureau’s report reveals that between 2001 and 2011, averages of 132 death sentences were handed down each year by trial courts across the country. The Supreme Court during the same period, however, confirmed only 3-4 death sentences each year.
According to critics the death penalty lacks the deterrent effect. It was recently stated by the General Assembly of the United Nations, “there is no conclusive evidence of the deterrent value of the death penalty” (UNGA Resolution 65/206). It is noteworthy that in many retention states, the effectiveness of the death penalty in order to prevent crime is being seriously questioned by a continuously increasing number of law enforcement professionals. The death penalty violates the right to life which is the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity which is inherent to every human being.
There are two divergent opinions regarding death penalty. One view favors death penalty as a means to punish a criminal in rarest of the rare cases. On the other hand, the second view is completely in favor of banning death penalty because resorting to a means similar to crime, will not deliver fruitful results. As Gandhi says, “An eye for an eye makes whole world blind”. So it’s not good to take life for a justice. Instead of killing the culprit some other punishment which will make him a better person must be adopted to reform the criminal and society as well. An approach towards reformation of a criminal must be adopted. Reform centers, rehabilitation homes, children homes, etc. must be increased to change the society from head to toe towards a better society.
Lately, in BBC documentary on Nirbhaya Rape Case, convict Mukesh Singh awaiting result of mercy petition, blamed women for her rape as “She should just be silent”. Death penalty is the only remedy left for such hardened criminals.