Plainly speaking, and dispensing with all paraphrases, punishment is nothing but a means of society to defend itself against the infraction of its vital conditions, whatever may be their character.
In the present time, Capital Punishment is one of the most criticized and debated punishment. Jurists are of the view that the death penalty serves an immoral purpose which is “cruel and unusual” punishment.
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The deliberate and conscious action of the state in taking of human life is decadent to human personality. The capital punishment has been practiced over centuries across the globe, we can notice few developments from the late 20th century towards abolition of the death penalty.
However, the major developed countries are still retentionists. In India, after the Bachan Singh case, setting the standard of “rarest of rare case”, making it more just and precise.
The Supreme Court in the Bachan Singh case, had noted that life imprisonment is a rule and death penalty is an exception, which must be awarded only after following certain guidelines considering the fact of cases and the graveness of the culpability and collective conscience of the community.
What question lies here is the constitutionality of the Death Penalty and the effect it has on the society at large and prospective criminals.
For this we need to understand the reason for existence of Death Penalty. Jurists have propounded theories that death penalty acts as a major deterrence to prospective criminals, based on the fear of punishment. In the nature of punishments awarded, death penalty can be stated as the strongest deterrent, because the fear of losing their own life in the minds of potential offenders, deters them to perform such actions. Not only the potential offenders, but also the criminals that are being awarded the Death Penalty, are being deterred by the virtue of incapacitation to perform such acts again.
Also, with death penalty one could save the lives of the prospective victims. Executing one murderer, with a view of protecting the rights of the prospective victims seems to be much reasonable than protecting the life of the murderer by awarding life imprisonment.
As a matter of fact, Capital punishment is not unknown to us. Capital punishment was a method of severe deterrence in the society back then. Though we know that death penalty existed in oral forms in primitive time period used to punish crimes of murder, theft, arbitrarily used by the king, the death penalty was first written down in the eighteenth century B.C. in the Code of King Hammurabi of Babylon.
In the later years, European settlers introduced Death Penalty in America. The 1st execution was by Captain Kendall in the Jamestown colony of Virginia in 1608. In United States, first state to abolish the Death Penalty was Michigan except treason in 1846. Later on, Rhode Island and Wisconsin abolished death penalty for all crimes. By the end of 18th century Venezuela, Portugal, Netherland, Costa, Rica, Brazil follows for abolition of death penalty.
Looking at the history of death penalty in India, the Indian Constitution has taken various features and principles from various other constitutions. The pre-constitution history and the constituent assembly debates have an imminent impact on the outlook towards the capital punishment. It can be said that the Assembly debates had taken into consideration the impact of capital punishment on poverty, discrimination and the possibility of error.
When the British Government had executed Bhagat Singh, Sukhdev and Rajguru, the Congress had moved a resolution in Karachi session for abolition of death penalty. With adoption of Code of Criminal Procedure, 1898 and Indian Penal Code, 1860, the IPC prescribed six punishments that could be imposed under the law, inclusive of death penalty. However, the position of death penalty significantly changed in 1955 equalizing the status of death penalty and life imprisonment in capital crimes.
The 35th law commission report recommended that, Having regard, however, to the conditions in India, to the variety of the 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. With advent of time, the judicial system of India encountered various cases and instances which are now looked upon as precedent for deciding crucial matters, in context to death penalty as a punishment.
The apex court has observed and set down certain principles, which need to be followed while awarding a death sentence. However, abolitionists are of the view that with implementation of the death penalty, it violates the essence of human living and the basic fundamental right to live guaranteed by Article 21 . The same was discussed in the case of Jagmohan Singh v. State of Uttar Pradesh . The parties to the case discussed the reasonability of the death penalty in regard to the judicial verdict and circumstances of the case. The pleader for the convict argued the constitutional validity of the death penalty. With discussions of morality and death penalty, the court had come to the conclusion that the Section 302 and 303 of Indian Penal Code are constitutionally valid. However, in the case of Ediga Anamma v. State of Andhra Pradesh , the judges held that:
“A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”
Justice V.R. Krishna Iyer in the above case recognized the need to abolish the death penalty and sought the view of India being progressive and the need to value the human life and dignity.
Subsequently, in the landmark case of Bachan Singh v State of Punjab , once again the validity of death penalty was challenged on the grounds that it is violative of Article 19.
However, the judges had noticed that the fundamental rights are not absolute rights and the absoluteness must not be imposed upon the penal law. They also stated out that life imprisonment was a rule and death penalty was and exception, only to be awarded in the ‘rarest of rare case’ considering the aggravating and mitigating factors leading to the crime.
In the landmark case of Mithu v. State of Punjab , where the Section 303, IPC was struck down as unconstitutional, on the grounds that it did not provide for any alternative punishment for murder except than the death penalty. The judgement considerably discussed the differences between Section 302 and 303 of IPC and how the principle laid down in the Bachan Singh case becomes meaningless if the death penalty is imposed regardless of the circumstances. They found the classification between a person committing murder already under sentence and a person committing murder not under any sentence baseless and irrational. Thus, they did not find any merits and justification for prescribing a mandatory sentence of death, and struck Section 303 of IPC as unconstitutional.
The perspective towards the Death Penalty has evolved over past decades. Many countries have come forward and actively abolished or minimized the use of Death penalty from law or practice. Even those who retain it have set certain standards, reducing the use of the death penalty.
According to Amnesty International statistics, at the end of 2014, 98 countries were abolitionist for all crimes, seven countries were abolitionist for ordinary crimes only, and 35 were abolitionist in practice, making 140 countries in the world abolitionist in law or practice. The list of 140 countries includes three that formally abolished the death penalty in 2015, i.e., Suriname, Madagascar and Fiji. 58 countries are regarded as retentionist, who still have the death penalty on their statute book, and have used it in the recent past. Though the number of 58 seems to be minority, it includes the populous countries like India, China, United States of America, exposing a large population to the punishment.
With regard to capital punishment, International Covenant on Civil and Political Rights (ICCPR), is one of the important documents discussing the status of Capital punishment and international human rights law. The Article 6 of the ICCPR does not rule out the use of Capital punishment in its totality, but guarantees right to life, which in parts contradicts the use of death penalty. It was found that certain practices of implementing capital punishment were inhumane, cruel and violative of the basic human right to live with a dignified life. UN Resolution A/RES/69/186 and UN Resolution A/HRC/36/L.6 have focused on minimizing the use of the death penalty and ensuring safeguards for different sects of the society. For instances, in UN Resolution A/HRC/36/L.6 operative clause 3 discourages the use of arbitrariness and discriminatory application of law in use of death penalty.
The resolutions specifically discuss about how the death penalty must not be used against mentally or intellectually challenged persons, people below the age of 18, pregnant women and not as a tool for dissuading specific forms of conduct such as apostasy, blasphemy, adultery and consensual same-sex relations. As an extension to ICCPR, the Second Optional Protocol aiming at abolition of death penalty is the only direct treaty towards this action. India ratified the ICCPR and the Second Optional Protocol, following the ‘rarest of rare case’ situations and setting high parameters to be fulfilled for awarding death penalty. In India, domestic legislation is required to make international treaties enforceable in Indian law. The Protection of Human Rights Act, 1994, incorporates the ICCPR into India law through section 2(d) and 2(f).
The threshold of “most serious and heinous crimes” set by the International treaties and conventions have certainly limited the scope. Evidently, 140 countries have already abolished the penalty of death indicating a strong front for the movement against this inhumane practice. India, setting the principle of “rarest of rare case” has taken a step towards ceasing the misuse of the death penalty. However, we can deduce from the movement towards abolition that there exists no direct link between insurgency or terrorism. Countries like Nepal, who abolished Death penalty in 1990, retained its stance even when it underwent a civil war. The political will of a country is not directly linked with its socio-economic condition. The morality shapes the ideology and the decision to abolish or retain.
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