Capital punishment

  
ABSTRACT: -
“Capital Punishment” or “Death Penalty” is the topmost level of punishment
present in any society and democracy to maintain law and order. Capital
punishment which is confer for the most heinous, grievous and detestable
crimes against humanity. Sentencing a capital punishment on “rarest of rare”
cases cover a large number of controversies in India or all over the world. India
also follows the same rarity but as per the Indian constitution of Article 21 its
stated that violation of the provisions of right to live and human dignity
provided, but still, it is constitutionally valid.

United Nation (UN) opposed the concept of death penalty and stated that
“Life is precious, and death is irrevocable”. Therefore, instead of hanging
someone to death, we must relate with two different theories i.e., the
reformative and preventive theories, hence one could enhance himself and can
existence placid thereafter.
INTRODUCTION

As Stated in Oxford Dictionary, Capital Punishment is a lawfully sanction to

death as penalty for a crime (Kindersley, 2011).

Capital Punishment or Death sentence present for offences like

crimes involving planned and numerous murders, replicate crimes and rape etc were in the
criminal providing such person as a flagrant peril to the existing of the society and provide
death penalty. Capital Punishment is a legal action where a person is put to a death by the
state as a penalty for a crime.

Capital punishment should be prominent from extrajudicial implementation

carried out without due procedure of law. The term death penalty is occasionally
used exchangeable with capital punishment, nevertheless forcing of the
penalty is not always abided by accomplishment because of the possibility
to life imprisonment.

While the definition and level of such crimes differ from country to country,
state to state, age to age and the inference of capital punishment has always
been the death penalty. By usual use in jurisprudence, criminology and
penology, Capital punishment means a sentence of death.

HISTORICAL BACKGROUND
Capital punishment is an ancient deterrent. There are almost no countries in the
World, wherever a death punishment has not one subsist. History of human civilization
disclose that throughout no interval of time death penalty has been dispose of as
a method of punishment. Capital punishment for murder, rape treason and arson were
broadly employed in ancient Greece, undergoing a law based on Draco (7 th century BC).
However, Plato stated that it ought-to be worn only as long as incurable. The Romans also
worn it for a broad range of offenses, even so citizens were spared for a short time during
the republic.

This finds to assist in the examination made by Sir Henry Maine who stated
that "Roman Republic did not abolish death sentence though its non-use was
essentially conduct by the procedure of punishment and a course of
questions.

Capital punishment was stint to be oldest tendency to punish for a crime arrived
from ancient period, the only distinction is in modern stage, death penalty uses to be
given on rarest of rare cases and in ancient time it uses to be given on petty
offences.

Primitive Period:
Law at the time of an earliest people was verbal, there were no correspond codes. The
punishment at that time was grant in random method by king. Death penalty was normally
existed in primitive time for murder, trespass, misuse of valuable things and theft. Death
Punishment was also established in 14th century B.C. in Draconian Code of Athens, they
compel crime sole to be penalize through death penalty.

Ancient Period:
The origin of death punishment, laws was discovered as for back in Babylon law. Hammurabi
who was introductory metropolis, the king of Babylon provides a place of law to his people
called Hammurabi Code. Babylon civilization started in XIX Century B.C. till VI Century B.C.
Hammurabi was an earliest correspond code. Hammurabi Code dispense severe level by
which Babylon could sequence their lives and tend to one another. In Hammurabi
irregularity has been rub out due to correspond law but the liable of death was normal in
crimes like murder, trespass etc.

Ancient Egyptians:
North African people who were now inhabited in Egypt come under ancient Egyptians. Their
civilization stipulates in IV Century B.C. and ended in IV A.D. Death penalty in Egyptians
grand to those who break universal law. The universal law in Egypt include crime such as
theft, misuse of things and spying. The law appeal to all, absence of arbitrariness through
king (Death Penalty when generates death legally, 2006).

Pre-Columbian People:
These people arise from Central America. Now they operate to derive in Mexico, Belize, and
Salvador. They ruled for XVI Century B.C. till XVII A.C. and defeated by Spanish. Adultery and
murder, with death in pre-Columbian period. Husband in adultery use to kill by means of
fling big stone on his head (Death penalty when life generate death legally).

Modern era:
In Mughal period power of mercy use to be accord to accused. In proper cases it utilizes as
an act of humanity and grace. In early year of East India, the leniency petition use to be
granted by British king emperor. Power of leniency concede to governor general in council
of fort William general and the governor in council of Bombay and Madras presidencies.
(Jain, 2005).
After formation of Sardar Nizamat Adalat the governor general in council gets the power to
pardon (Jain, 2005). Further in 1860 v 1861 the mercy power to provide in IPC and Cr. PC
(Bhattacharya, 2013).
Many unsuccessful endeavours were made by India to stop Capital Punishment Bill which
was introduced in Lok Sabha in 1956 for get rid of death penalty but it was refuses by house.
In 1958 and 1962 many attempts to made in Rajya Sabha which was unsuccessful. Under
chairmanship of Justice J.L Kapur law commission of India under its 35th report, 1967 hold
up to sustained of capital punishment for grievous offence’s (Agrawal A., 2000).

Types of Death Penalty in Ancient Civilisation:

The execution of death penalty punishment was differing from one civilisation to another.
And these executions are:
·Death by boiling
· Crucifying
· Flaying
· Disembowelment
· Breaking Wheel
· Crushing
· Slow Slicing

STATUTES AND SCENARIO OF CAPITAL PUNISHMENT

International statue:
1. ECOSOC, 1996 in its 15th determination of uplift the countries who are their members to
stop Capital Punishment also endorse that they give immediate and fair trials to defendants.
2. UDHR, 1947 in its Article 5 says “No one shall be treated as torture and cruel inhuman
and degrading treatment and punishment.
3.UNECOSOC, 1948 says that:
- The member countries that may impose it only on most heinous crimes.
- Death Penalty should not give to pregnant women or insane.
- Minor below 16 years of age should not give Death penalty.
- According to Article 14 of ICCPR capital punishment only build after equitable procedure.

4. International Covenant on Civil and Political Rights (‘ICCPR’), a key document discussing
the imposing of capital punishment in international human rights law.

INTERNATIONAL SCENARIO
The international scenery concerning the death penalty - both in international law and state
operation - has evolved in the past decades. Internationally, countries are restricted on their
capital punishment position, on the bases of following categories:
• Abolition for crimes
• Abolition for usual crimes
• Abolitionist de facto
• Retention

And 98 countries were abolition for crimes, 7 countries were abolition for usual crimes only,
and 35 countries were abolition in exercise, making 140 countries in the world abolition in
law or implementation, in 2014. Just a minority of countries are retained and use the death
penalty; this list includes some of the most populous nations in the world, including India,
China, Indonesia and the United States, making a majority of population in the world
potentially subject to this punishment.

Indian Statute:
(I) Supreme Court on Capital Punishment in India: -

Indian Constitution guarantee that Fundamental Rights, Article 21, Right to live
and personal liberty for all persons. No person shall be underprivileged of his live
and personal liberty excluding according to course of established by law. This has
been legally built to mean if there is an action, which is fair and valid, then the
state by formulate a law can dispossess a person live and liberty. While the
central government has frequently continued it would keep the capital
punishment in act as a deterrent, and for those who are a threat to a society, the
Supreme Court, give the constitutional reasonableness of capital punishment in
“rarest of rare” cases.

(II) EXERCISE OF MERCY POWERS: -

Supreme Court of India in Shatrughan Chauhan case has recorded that the Home
Ministry considers the following factors while deciding mercy petitions:

a) Disposition of an accused or conditions of the case;

b) Cases in which the appeals Court convey uncertainty as to the dependability of
evidence but has still decided on conviction;
c) Cases in which it is claimed that evidence is available basically is required view
to see whether enquiry is justified;
d) extended delays in a trial and investigation etc.
 (III) LAW COMMISSION OF INDIA'S REPORT: -

Law Commission of India, in its 262nd Report (August 2015) recommended that
death penalty be abolished for all crimes other than waging war and terrorism
associated offences. Complete recommendations of the Report are as follows:

The Commission endorse that estimate witness protection scheme, policy

reforms and victim compensation scheme should be taken up prompt by the
government.

INDIAN SCENARIO:
(I) LEGISLATION: -

Indian Penal Code, 1860 (IPC) is a Public Law and Criminal Law that defines
crimes and their prescribe punishments. In IPC, Section 53 provides for death
penalty and imprisonment for a life as an alternative punishment. In Mithu v.
State of Punjab, apex court stated that section 303 is unconstitutional since it is
not adjusted with article 14 and article 21 of the Indian Constitution. Non-
governmental organizations, in India as well as common people are opposed
against inhuman, cruel punishment and degrading and protection for their
human rights. Nevertheless, death penalty still remained in force.

(II) CONSTITUTIONAL LAW:

Indian constitution guarantees right to live and personal liberty to all which
includes right to live with human dignity, in Article 21. No person should be
underprivileged of his right excluding, according to the course of action by law.
Therefore, our constitutional principle is in tune with procedural requirements of
Natural Law which constitute the inner morality of Law which may be stated as
follows:

(a)Death penalty is use in very economically at most in particular cases.

(b)Death sentence is attended as a punishment to be urge with special reasons.
(c)There should be individualization of sentence considering individual
circumstances.
(d) Death Penalty must be established by a High Court with bona fide or proper
application of intellect.
 (III) JUDICIAL APPROACH

In Bachan Singh v. State of Punjab, a Supreme Court of India by the 4:1 majority
has overruled their earlier Judgment marked in Rajendra Prasad case and
pronounced that death penalty under section 302 IPC does not contravene
article 21. International Covenant on Civil and Political Rights (‘ICCPR’), in which
India has become a party in the year 1979, does not get rid of inflicting of death
penalty completely. But it ought to be considerately inflicting and not arbitrary; it
should be inflicting in most heinous crimes. In this case, a Court held that “Judges
should not be Greedy of Bloods”. An actual and enduring concern for a dignity of
human life importance, hostility to taking a life through law effectually. That not
ought to be too done aside in the “Rarest of Rare” cases when the different
option and formula is unquestionably fore closed.

In Madhu Mehta v. union of India, the mercy petition of the accused was pending
before the President of India for about nine years. This matter was brought to
the notice of the court by the petitioner. The court conducted that to commute
death penalty to imprisonment for a life because there were no grounds to
extend or delay the duration of trial and speedy trial was utter to be covered in
article 21 of the Indian Constitution. There was 9 year’s delay in accomplishment
of death penalty.

State-Wise Distribution of Death Sentences Imposed

 By Sessions Courts, 2020

No. Of Death Sentences

Uttar Pradesh 13

West Bengal 9

Telangana, Tamil Nadu 6

Madhya Pradesh,Karnataka, Jharkhand 5

Rajasthan, Maharasthra 4

Bihar, Assam 3

Gujarat, Andhara Pradesh 3

Tripura 2

Punjab, Haryana 2

Delhi, Manipur 1
0 2 4 6 8 10 12 14

No. Of Death Sentences

Number of Death Sentence World Wide, 2020

No. of Death Sentence Worldwide

1200

1000

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600

400

200

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No. of Death Senrence Worldwide

DOCTRINE OF “RAREST TO RARE”

The Death penalty is legally valid in India and is given in only “Rarest of Rare” cases or other
special cases. Here comes the controversy, the term “Rarest of Rare” case is not defined by
the legislation or the Supreme court.
In 1983, The phrase "rarest of rare case" first appeared in the Supreme Court’s decision,
Machhi Singh v. State of Punjab. The meaning of the phrase “Rarest of the Rare” case, a
court constituted and conclusive the case in a criminal trial, to see the essence and identity
of the crime to give the pertinent punishment.
In Section 302 of IPC, death penalty or life imprisonment are stated as a punishment for the
offences of murder. It is impossible to hold the view that a death penalty can be used as a
substitute punishment for murder as it is unreasonable and contrary to the public interest.
The order of conviction of the accused is the procedure of the penal law and to give
sentence or imprisonment is purely related to the order of conviction. Therefore, S. 302 of
IPC doesn’t come under the test of A. 19(1) of the constitution.
In Machhi Singh case, the court stated, some principles for judging the facts of a case when
a crime comes under the category of “Rarest of Rare” formula and some guidelines to be
adopted to identify the “rarest of rare” cases.
In Sabiana v. State of Karnataka, the accused was already awarded life imprisonment for a
crime. when he was on parole, subsequently, killed his wife and daughter. The Supreme
Court convicted him to death penalty and constituted that the death punishment is
mandatory for offenders who are previously get a life imprisonment sentence.
However, the Supreme Court had in Mithu v. State of Punjab already abrogate, Section 303
of the IPC, which stated the provision for mandatory punishment of death for offenders who
get a life sentence. The reason behind this view is that if the death sentence is mandatory,
then there is no point of hearing the offender’s side on continuously a question of sentence,
and it becomes supplementary to give the reasons for awarding the sentence of death .
Rarest of rare doctrine has to be determined according to following factors: -
(a) Method of Commission of murder
(b) If reason for the Commission of Murder shows vice and meanness.
(c) Anti-socially or social detestable identity of the Crime.
(d) Magnitude of the Crime.
CONCLUSION

Capital punishment which is perceive as a cruel and inhuman in some jurisdictions is a

constitutional in India and the right to live and human dignity is provided by the Indian
Constitution does not avert an offender from being carry out if found guilty of certain crimes
by a Court of contempt Jurisdiction. In India the issue of death sentence is heated debated
and has captivated the attention of general public as well as government organisations and
non-governmental organisations. According to our judiciary it must be foist in exceptional
cases i.e., in rarest of rare cases.
In India, death penalty has been practiced since ancient times. Many countries abolished
capital punishment. When we look at our national crime statistics death penalty has not
demonstrated to be disincentive for doing offence, the crimes rates are increasing only. Our
laws should improve and the punishment should be so diligent and it should be an example
for people around him, about his unlawful acts.
Death penalty in rarest of rare case does not influence the human rights principles. As per
the guidelines condition in ICCPR for those countries which does not want to rid it says that
one may award capital punishment but have to follow certain conditions.
In Machhi Singh case, a court constituted some principles for judging the facts of a case
when a crime comes under the category of “Rarest of rare” formula and some guidelines to
be adopted to identify the “rarest of rare” cases.
In Sabiana v. State of Karnataka, the accused was already awarded life imprisonment for a
crime. when he was on parole, subsequently, killed his wife and daughter. The Supreme
Court convicted him to death penalty and declare that the capital punishment is mandatory
for offenders who are previously get a life imprisonment sentence.