Authored By: A.R.Muhammed Raquib
SRM Institute of Science And Technology, SRM School of law
ABSTRACT:-
Capital punishment, also known as the death penalty, is the highest form of punishment awarded for criminal offenses apart from other types of punishment. When a competent court orders the death penalty, the convicted individual is executed. However, there are ongoing debates both for and against the imposition of the death penalty. Historically, there are four primary theories of punishment: deterrent, retributive, preventive, and reformative. Some thinkers and jurists argue that the death penalty is based on the retributive theory, which follows the principle of “an eye for an eye” and “tit for tat,” meaning that the offender who committed the crime should suffer the same pain as the victim. Accordingly, the punishment should be proportionate to the crime committed. On the other hand, some jurists argue against the use of capital punishment, stating that the primary goal of the judiciary is to provide justice to the victim through lawful means, not by executing the offender. This perspective suggests that seeking revenge by taking the offender’s life could lead society toward anarchy and rebellion. According to a report by the Death Penalty Information Center, since 1976, more than 85 countries have abolished the death penalty for nearly all crimes. This is not the case in India, which is prevailing the concept of death penalty. The leading case law for the death penalty points it’s stripes from the Bacchan Singh vs State of Punjab (1980). This essay examines the arguments both for and against the death penalty and discusses its position in India with few landmark case laws.
KEY WORDS:- Capital punishment, death penalty, For and against, India, Bacchan Singh case.
INTRODUCTION:-
“Capital punishment is our society’s recognition of the sanctity of the human life1.” Capital punishment also called as the death penalty is the highest form of punishment which is been awarded to the offenders. Death penalty is been given to the offenders who have committed the crimes of murder, treason, drug trafficking, terrorism etc. Historically in India and outside the world there were several types of punishment which is been ordered by the king. Under the kings rule, he is considered to be the messenger of the God, the king is above and equal to the law where his decisions are binding across the people and everyone have to follow his commands properly, if not they will be convicted according to his directions and the wide scope of his powers. As there happened a great shift in the power and the introduction of the magna carta 2, the level of the punishment was also been decreased and taken away considering the need for the dignity and protection of the humans rights, but in India, capital punishment remains as it is and it is been awarded in the rarest of the rarer cases and not in all the types of the offences, the offences which involves so heinous and society at the large is been detrimental in those circumstances the view of death penalty comes into the picture which deciding about the pattern of the case structure as a decision or the judgement which is to be made.
TYPES OF PUNISHMENT EXISTED IN HISTORICALLY:-
There are various types of punishment which have been existed historically.
They are:
1) Capital punishment – It includes the punishments such as stoning, throwing the offender under the leg of the elephant, pillaring. These methods were given so much painful to the person and were very barbaric.
2) Corporeal punishment – It is a form of the punishment where some kind of pain or injury was been inflicted to the person and it includes the punishments such as mutilation, branding, bibos, flogging etc.
3) Social punishment- It is a form of punishment in which a person is been kept and thrown away from the country he was been residing before, no sort of help is been given. This punishment affects the psychological character of the person and not the pain or injury is been done.
4) Financial punishment- It is a kind of punishment which is been given for the minor offences especially for not obeying the traffic rules, petty offences, revenue laws, not been followed strictly, but a part of money is told to be paid by the offender as an imposition which us called as the compensation of the fine amount 3.
THE THEORIES OF PUNISHMENT:-
1) Deterrent theory:-
This theory highlights about the punishments stands as the warning signal board for the offenders for doing the crime. Punishments will create fear in the minds and hearts of the people, so punishments to be aggressive and to be openly done before the public. The punishments should stand as a severe one and it also prevents the offender of the recidivist also.
2) Retributive theory:-
Retributive in the simple sense means that the ‘tit for tat’ or ‘eye for eye’,. This theory talks about the revenge to be taken against the offender. The basic assumption made under this theory is that the evil spirit to be returned to wrong doer and he should suffer the pain.
3) Preventive theory:-
This theory suggests that about the disablement, where the offenders are been punished with death, imprisonment of life, etc. In this theory, capital punishment and the exile served as the punishment to the offender of whatever may be the crime which was been constituted4.
4) Reformative theory:-
Reformative theory or the theory of reformation suggests that the criminals to be reformed rather than awarding them with the high punishments which would injure them and would give them pain and they will suffer from it. It envisages about the focus to be shown on the rehabilitation centres and the wellness programmes which would support and uplift the personality of the offended, making their mental stability to boost and make them more conscious of what is correct and what is wrong. Proper training, health care facilities inside the prison, awareness camos which would results in the good condition of the offender making them a better citizen to walk out after there period of the prison in the society. The reformists view on this theory is that criminals are not born and their behaviour can be moulded easily and differently by the way of the rehabilitation and its centres5.
ARGUMENTS FOR THE ABOLITION OF THE DEATH PENALTY:-
Such as Nelson Mandela 6, Noam Chomsky 7, Justice V. R. Krishna Iyer 8, Justice P. N. Bhagwati9, Justice Leila Seth10 etc were of the opinion about the abolition of the death penalty as an offence.
The arguments begin with the following:-
- Considering about the life, right to life 11, which is been explicitly mentioned under Article 21 of Indian Constitution12. Each and every human have the fundamental right to right to live which includes, shelter, food, air and right to natural resources etc. The concept of life of human being cannot be taken away and be disabled. Life of a person matters and stresses on each and every condition. The court should consider while giving the death penalty about the life of a person. Life is important once it is been taken out, it cannot be given back as a magical mantra. Once when the judgement is given out regarding the death penalty, in the death row all the people will not be executed there are some exceptions which is the pregnant women, innocent man and the minor and the young children.
- Execution methods in the death penalty will be painful and degrading. In India, the method of hang to death us been followed, in other countries stone to death, is been followed as part of the capital punishment. The execution of the death penalty is been considered to be cruel and inhumane and hence it should be abolished.
- Innocent person have been convicted falsely by the wrongful conviction. The guilty offender will be taken in this case and the innocent with the wrong investigations will be convicted as falsfuly the life of an innocent human beings life is been taken away. The judicial system is been modernized in the recent and the latest era but it lacks and there happens a miscarriage of the justice system, how for the judicial system is been developed but there is a lacunae in the justice delivery system.
- The system of awarding death penalty is against the human and moral values. It takes away the ethical values of the human beings. It is been against the concept of humanity. By giving a severe and painful punishment, humanity as a whole chain of the character of the human is been ignored. For a human being, the basic tendency is the humanity and it should not be taken away at the overall level.
- By giving the death penalty, as the highest form of the punishment the offenders family, friends, neighbours, close relatives will miss him / her so much and this would in return becomes the collective punishment for everyone. The collective punishment would also lead to the mental stress, depression, anxiety and other mental disorders as it would collectively affect everyone who ever closely connected with the offender.
ARGUMENTS AGAINST THE ABOLITION OF THE DEATH PENALTY :-
The jurist and the authors also have contended about their views against the abolition of the death penalty. Jurists such as Garafalo13 and Sir J. F. Stephen 14 are of the view about against the abolition of the death penalty.
The arguments begins with the following :-
- The death penalty once given it prevents the future crimes. As death penalty is considered to be the highest form of punishment and if it is been given, other offenders and crime committing person will become fear of doing the crime again and again. It also restricts the recidivist, recidivist are called as the repeated offenders. It prevents future crimes by a blockage and other occurrences of types of crimes may be stopped leading to a reduction in the rate of the offences which us been committed.
- Gives a proper justice system to those who have been affected by the crime. The rights of the victims will be protected. It also ensures that proper amount of justice is to be rendered to the victims. Death penalty as the punishment protects the victims, their rights and duties have been governed and give the victims to taste their feelings. By this way victims family and the society is been protected and it is been preserved.
- When the capital punishment as the highest form of the punishment is been taken away, there will be frequent occurrences of committing the crimes in the large scale. So to avoid this issue the capital punishment should be retained and to be upheld in the cases and to be applied by the judges in the circumstances and to be used in the interpretations of the cases.
LEADING CASE LAWS ON THE CAPITAL PUNISHMENT:-
- Ediga Anamma vs State of Andhra Pradesh (1974)15 :-
The Supreme Court laid down the rule that for the crime of murder life imprisonment is considered to be the punishment rather than awarding the capital punishment or the death penalty. Right to life of a person is considered to be important factor. There should be special reason which should be given for imposing the death penalty.
- Bachan Singh vs State of Punjab ( 1980) 16:-
The Supreme Court held that Section 30217 of the Indian Penal Code, 1860 (IPC) is constitutionally valid and the concept of the death penalty won’t amount to murder. Only in the rarest of the rarer cases the punishment of the death penalty should be imposed and to be imposed only in the brutal situations and as well as of the heinous offences. The lesser kind of punishment should be awarded in the situations.
SUGGESTIONS FOR THE DEATH PENALTY:-
➢ The punishment meted out should be proportionate to the offense committed, and a strict line of distinction must be maintained between different types of offenses. This ensures that the severity of the punishment aligns with the gravity of the crime, promoting a fair and just legal system.
➢ While the Supreme Court has established various guidelines regarding the imposition of the death penalty through numerous precedents, some ambiguity remains in its application. To address this issue, the court should take proactive steps to provide clear and comprehensive guidelines for issuing death penalties. This clarity will help in maintaining consistency in judicial decisions and in reinforcing public confidence in the legal process.
➢ Additionally, the court should consider both aggravating and mitigating circumstances when determining sentences. Factors such as the age of the offender, their criminal history, and other relevant aspects of their background should be taken into account. This holistic approach not only respects the humanity of the offender but also acknowledges the complexities surrounding each case, ultimately contributing to a more equitable justice system.
CONCLUSION:-
In conclusion, India continues to retain the death penalty, even as many countries around the world have abolished it for all crimes. This retention does not indicate that India is a dictatorial state; rather, it reflects the country’s commitment to a reformative theory of punishment. This theory aims to rehabilitate offenders so they can reintegrate into society, thereby preventing future crimes by like-minded individuals. However, there remains a compelling need to retain the death penalty, particularly as society and criminal methodologies evolve. Many offenders now leverage advanced technology to commit crimes while leaving little to no evidence behind. If this trend continues, it may diminish any fear of repercussions among criminals, leading to an increase in both petty and heinous offenses. The perception that offenders may escape severe punishment could embolden them to act without regard for the law, which is a concerning prospect for a democratic nation like India.
Therefore, it is crucial to maintain the death penalty as a deterrent. Concurrently, clear and unambiguous guidelines for its imposition must be established. As the saying goes, “A thousand convicts can be released, but not a single innocent should be punished.” This principle underscores the importance of reserving the death penalty for the “rarest of rare” cases. While it should not be completely eradicated, its application must be approached with caution and responsibility to ensure justice is served fairly and effectively.
REFERENCES:-
JOURNALS:
1) Muniyappa T and Dr Anu Prasannan, “Kinds of punishment in India: A historical perspective “, ijcrt, vol 11 issue 12(2023).
2) Ranjana Tiwari and Dr Rakesh Kumar, “Theories of punishment with special reference to the capital punishment”, jetir, vol 7 issue 10 (2020).
3) Shikha Mishra, “Theories of punishment – a philosophical aspect”, ijir, vol 2 issue 8 (2016).
CASE LAWS:
1) Ediga Anamma vs. State of Andhra Pradesh AIR 799 (1974).
2) Bachan Singh vs. State of Punjab SCC (1980).
1 Orrin Hatch was an American Attorney and a politician, born in the year March 22, 1934.
2 Magna Carta is a document which was introduced in the year 1215; it states that king and his ministers are below the law.
3 Muniyappa T and Dr Anu Prasannan, “Kinds of punishment in India: A historical perspective “, ijcrt, vol 11 issue 12(2023).
4 Ranjana Tiwari and Dr Rakesh Kumar, “Theories of punishment with special reference to the capital punishment”, jetir, vol 7 issue 10 (2020).
5 Shikha Mishra, “Theories of punishment – a philosophical aspect”, ijir, vol 2 issue 8 (2016).
6 Former South African President and Lawyer.
7 Linguist and human rights advocate.
8 Former Supreme Court judge.
9 Former Supreme Court judge.
10 Former Himachal Pradesh high court chief justice.
11 Article 21 of Indian Constitution, protection of right to life and personal liberty.
12 No person shall be deprived of his life or personal liberty except according to procedure established by law.
13 Italian criminologist and jurist.
14 English lawyer, judge, writer and philosopher.
15 Ediga Anamma vs State of Andhra Pradesh AIR 799 (1974).
16 Bachan Singh vs State of Punjab SCC (1980).
17 Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.
