Human Rights Law

Justification For and the Abolition of Capital Punishment under Human Rights Law

  • Introduction:

Capital punishment is acting as a deterent factor, which reminds and thereby prevents humans from committing heinous crimes by the fear of law and punishment. It arouses sense of fear of death amongst the other people thinking about or contemplating crime. However, with the social evolution, consensus started forming amongst people as well as nations that certain practices like Death Penalty, Slavery, physical torture, etc. can no longer be tolerated. People feel that such practices may continue, but should be aberrations. Majority of the Countries in the world have abandoned Death Penalty. However no full consensus has developed against its’ use. One can observe that number of countries employing death penalty is declining year after year and it is possible that over a period worldwide opinion and pressure will influence all the countries to abandon it.

  • History:

Death penalty or Capital Punishment has been practised world over since 16th Century. During those days, it was being awarded for petty crimes, which are now, more or less, punishable with imprisonments for much lesser period of time. In India, during Mughal Regime, no fixed norms were there for punishing any crime. However under British Rule in India, they used to follow judicial procedure, whether acceptable to Indians or not, for convicting an individual and if found guilty, award Capital Punishment. Good number of Freedom Movement Leaders were hanged to death by Britishers. In India, Britishers enacted a Law in the name of Indian Penal Code in the year 1860 and made provisions for penalizing crimes. In that IPC,1860, they provided a list of crimes liable for Capital Punishment. IPC,1860 has been in force in India even today with minor modifications here or there. Also, Article 21 of the Constitution of India provides that no person can be deprived of his life except according to the procedure established by Law. Besides IPC,1860, number of legislations enacted by the Parliament in India provide for the death penalty, latest being new anti-terrorism legislation for people convicted for terrorist activities and persons convicted for Brutal gang rape.

  • Procedure followed before execution of Capital Punishment :

After the accused is convicted and awarded death sentence by a Trial (Sessions’) court, the sentence has got to be confirmed by the respective High Court,to make it final. Once the sentence is confirmed, the condemned convict has option of appealing to the Supreme Court of India. If the SCI turns down or refuses to hear the appeal or if the convict wishes so without appealing to SCI, he can submit a ‘mercy petition’ to the President of India and the Governer of the respective state. The President (including Governors’) has the power to grant pardons, reprives , respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.

  • Execution of Death Sentence:

In India, execution of death sentence is carried out by two methods, namely hanging by neck till death and being executed by firing squad. In other countries, death sentence is carried out by electric shocks, lethal injections, etc. For & Against Capital Punishment: It is said that the basic purpose of Criminal Laws of any nation is the reformation of offenders and not retributiontherefore, the Capital Punishment may be a means to this end. Capital Punishment has been prevalent world over since time immemorial. Now a days, it has been abolished by more than 50% countries of the world. Countries like India, Pakistan, China, Latin America and some Caribbean countries, North America, etc have still death punishment in their statute books. The reasons for retaining Capital Punishment are: deference, safety to the society and reduction in costs of maintaining such criminals in the prisons. Capital Punishment is seen as an appropriate penalty for many offenders who are perpetrators of the inhuman act of killing people with the utmost impunity and disregard for human life. It is also viewed as a means of vengeance for the victims of such barbaric acts. In India, the legal frame work for use of Capital Punishment is laid down in the IPC. It permits the use of Capital Punishment for Murder in the ‘rarest of rare cases’. Section 302 of IPC says that a person committing murder shall be punished with death, or imprisonment for life and also shall be liable for fine. Further, Section 303 of IPC provides that whosoever, being under sentence of imprisonments for life commits murder, shall be punished with death. That means a person even after leniency from the judiciary does not improve himself then he deserves the severest penalty i.e. death penalty. The sparing use of this sentence in the country is in conformity of obligation of judicious use of this penalty as a party to the International Covenant for Civil & Political Rights. The judiciary uses this punishment upon an unequivocal establishment of the culpability of the offender in a case before it which truly falls within the definition of the ‘rarest of rare case’. Advantages of Capital Punishment: Though Capital Punishment doesn’t prevent the criminal operations, it acts as deterent and thereby reduces the criminal operations and violent crimes. It helps the Government to reduce the number of detainees in the prison. And thus prison maintenance expenses will be reduced. It is also claimed that Capital Punishment would significantly increase welfare of the society- because its increased implementation would bring many economic and psychological benefits to the people. Its deterent effect would reduce or control the ever- increasing cost of law enforcement. It inhibits potential criminals from committing violent and socially damaging crimes. If habitual economic offenders are identified and executed, it would dramatically decrease the economic offences. It is argued that the enforcement of Capital Punishment should be swift and timely, preferably immediately after it is sentenced and not appealed. It is also argued that prison sentence beyond 25 years is absolutely pointless.

  • Disadvantages of Capital Punishment and the impact of Human Rights Cry:

A person cannot make any amends for the crime committed by him after being dead. Therefore, if somebody is killed in error, any apology by the offender would not change anything after enforcement of Capital Punishment. The Capital Punishment has disadvantages and one of them is its violation of Human Rights. Human Rights advocates are very vocal on their campaign and argue that one cannot be hundred percent sure about carrying out serious investigation as provided under the Law system that would conclude the true events of crime. It is said that one should not punish or execute a person who is not involved in the crime. Some people say that the death penalty should have no place in the general penal system of advance and civilized societies. A person cannot be deprived of his life. It amounts to flagrant violation of the right of life and dignity, which are the most important of all human rights. In 1997, the U.N.High Commission for Human Rights approval a resolution stating that the ‘abolition of death penalty contributes to the enhancement of human dignity and to the progressive development of Human Rights.’ This resolution got further support by one more resolution calling for restriction of offences for which death penalty can be imposed and for a moratorium on all executions, leading eventually to abolition. Present Status in India: The Supreme Court of India has restricted the scope of death penalty in the country. It has shown willingness to commute the Capital Punishment of even murder convicts on the ground of inordinate delay in deciding their mercy pleas. That means, it has moved a step closer towards abolition of Capital Punishment. Section 354(3) of CPC requires a judge to give special reasons for awarding death sentence. The SCI pronounced the ‘rarest of rare’ doctrine in the year 1980 and since then, the life sentence has been the rule and the death sentence an exception. Despite the ‘rarest of rare’ doctrine of SCI, a large number of convicts are awarded death penalty. However, actual executions are rare. One Dhananjoy Chatterjee was hanged in August,2004. Thereafter, 26/11 convict Ajmal Kasab and the Parliament attack convict Afzal Guru were executed in 2012 & 2013. Upon SCI commuting the death sentence of 19 convicts after their mercy pleas were rejected in 2014, the Law Commission has decided to relook at the issue. It has issued a public consultation paper on Capital Punishment. The SCI has also observed that the Law Commission should examine whether the death penalty is deterent punishment or is retributive justice or serves an incapitative goals. In recent years, the SCI has admitted that the question of death penalty is not free from the subjective element and is sometimes unduly influenced by public opinion. Therefore, it is imperative that a deeper study be conducted to highlight whether the process of awarding Capital Punishment is correctly and objectively pursued or not. Following Nirbhaya Gang Rape case, the Parliament has changed the law suitably to make a second change of rape punishable with death penalty.

  • Conclusion:

The Law Commission in its 1967 Report has observed that India cannot risk the experiment of abolition of Capital Punishment. Even in 2015, situation in the Country has not changed more positively and, therefore, despite the force in argument of Human Right, at the moment, India should carry over with the present system of awarding Capital Punishment.

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