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Capital Punishment: Contemporary Perceptions and Comparative Analysis

Capital Punishment is the severest punishment of all the other punishments awarded to maintain law and order in the society. It has a long history; it has been a mode of punishment from the ancient period of the world. Each country has its own method to impose the capital punishment such as electrocution, beheading, stoning, shooting and hanging. The arguments against the imposition of death penalty have not changed much over the years.

They have their own valid points to prove capital punishment harmful for the society. People who are against the imposition of death penalty argue that it is against the morality and follows the revenge factor. Most of the countries have abolished capital punishment wholly but some have abolished it for specific crimes while maintaining for special situations such as war crimes.

ICJ and UNGA are also against the imposition of death penalty. Although most of the countries have abolished capital punishment but still 60% of the world's population live in countries where death penalty is retained such as India, China, US and Pakistan. In India, the capital punishment is given in 'rarest of rare' cases, when the crime which is committed by the offender is so inhumane in nature that it shocks the conscience of the society.

This paper discusses about the status of capital punishment in all over the world. It also explains the laws, amendments related to the capital punishment made in India. In this paper rarest of rare case has also explained with the landmark judgments. Comparative analysis of different countries has done for the clear view with respect in execution of capital punishment. Opinion of ICJ and arguments of people who are in favour and against the imposition of capital punishment have mentioned. This article is a detailed view about contemporary perceptions of capital punishment.

When any person does any wrong, there is a provision of punishment to make the person realize that he has done something, that he should not do. Even a small child who doesn't have any intention to do any wrong act gets a punishment from his mother. So, he can get to know about the difference between a good act and a bad act, consequences of both is far differing from each other.

All punishments possess the same motive i.e. there must be a severe consequence for the offence. There are two main reasons for inflicting the punishment: One is the belief which says that offender should suffer, it is right and just to punish that person; the other is the belief that imposing punishment on wrongdoers discourages others from doing that wrongful act. Capital punishment also possesses the same motive.

The term capital came from the Latin word capitalis which means head. Hence, in a capital crime accused had been punished by beheading. The capital punishment debate is the most relevant debate in our society. As the human rights movements are increasing in the countries, the existence of capital punishment has been questioned as immoral. However, it is an odd argument by keeping one person alive at the cost of the lives of numerous members of the society and in fact, which is morally wrong.

This could be seen ever since the society has established, there have been existence of troublemakers also. To prevent such activities, it was necessary to punish them so that it could pass a lesson to the society to not create such nuisance in the society in future and among the punishments death sentence was the most popular one. Use of death sentence can be dated as far as the 18th century B.C.E. where in the Code of King Hammurabi of Babylon, which codified capital punishment for 25 different crimes.

The death penalty was also in the Hittite Code which was in 14th century B.C.E., 17th century B.C.E.'s Draconian Code of Athens, in which all crime was punishable by death. Until 19th century as there was no developed prison system the criminals were put for execution more frequently to ensure no overcrowding of the limited cells available and to ensure not much money is spending on the criminals.

In Pre-modern era the executions were conducted using various torturous and painful methods like the breaking wheel, sawing, hanging, drawing, and quartering, burning at the stake, flaying, slow slicing, impalement, boiling alive and blowing from a gun. Even at the times when human lived together as a tribe the death sentence was the part of their justice system.

In India before the invasion of British the punishments were given by the king of the area by giving them what they called danda. It was given to the people for the violation of Dharma that he or she may have committed. During that time, the punishment was given depended on what caste the person belonged as when caste is high then their wealth would be higher and their status also.

So their chances of getting capital punishment is much lower as they were capable of giving a huge amount of fine whereas the lower caste people had less money and so they had higher chances of getting death penalty for the same crime. Later on for murder, family member of the victim has the option of blood money or he can kill the murderer same way as he killed the victim. Later on when the East India Company invaded India they started bringing their own court system in India and slowly and steadily they created many laws and the IPC (Indian Penal Code) was one of them acts which specified the crimes that are eligible for the capital punishment.

Capital Punishment: Notion and Types
Capital punishment or death penalty is legally killing a person as a punishment because he has committed a grievous offence. The order passed by the court that sentence someone with the death penalty is known as a death sentence, and carrying out this sentence is known as an execution.

A prisoner who is waiting for his turn to come for his execution is said to be on death row. Crimes those are codified for the punishment of death penalty are known as capital offences or capital crimes, and it depends on the jurisdiction, but commonly include grave and heinous crimes against the person such as murder, child rape, child sexual abuse, war crimes, terrorism, genocide along with crimes against the state like attempting to overthrow government, espionage, treason, piracy and sedition. There are many methods to carry out executions such as hanging, lethal injections, shooting, stoning, electrocution and gassing.

There are 55 countries those have retained capital punishment, 109 countries have completely abolished it de jure for all crimes, and seven have abolished it for some particular ordinary crimes (while maintaining it for special situations such as war crimes). Although large number of nations have abolished capital punishment but over 60% of the world's population live in countries where the death penalty is retained, such as India, China, USA, Pakistan, Indonesia, Bangladesh, Egypt, Iran, Nigeria, Saudi Arabia as well as in Japan.

Types of capital punishment
There are many methods of giving capital punishment to the criminals on death row:
  • Stoning � In this method, the criminal is beaten through stones till death. It seems to be the most painful method of execution as offender dies slowly bearing with lots of continuous pain.
  • Shooting � In this method, the criminal is either shot in his/her head or in his/her chest.
  • Hanging � In this method, culprit is simply hanged till death.
  • Electrocution � In this method, the criminal is tied to a chair and a high voltage current that can have a capacity to kill a man is passed through the body. This leads to the organ failure especially heart.
  • Tranquilization � In this method, toxin injections are injected into culprit's body that takes and he dies within several hours. This gives criminal slow but painless death.
  • Beheading � In this method, they used to cut the criminal's head apart from body.

Capital Punishment in India
India comes second in the matter of large number of population and this population is consists of large number of criminals who commits grievous and heinous crimes such as murder, rape, dacoity and human trafficking. In India all the punishments are decided on the basis of the intensity of the crime committed, increment in the imprisonment means the offence committed by the wrongdoer is more heinous. If the punishment reached to the Capital Punishment than crime must be of an inhumane nature.

Capital Punishment is one of the important parts of the Indian criminal judicial system. According to the data on death penalty, more than 752 prisoners have been executed in India since the independence. First executions of independent India was of Nathuram Godse and Narain D Apte who were the assassins of Mahatma Gandhi and they were hanged till death in Ambala Central Jail in Haryana on November 15, 1949. The last execution was of the four convicts of the Nirbhaya Gang rape case who were Pawan, Mukesh Kumar Singh, Akshay Kumar Singh and Vinay Sharma on March 20, 2020 at 5:30 a.m.

Not a single objection was raised up in the British India's Legislative Assembly about the capital punishment until 1931, when one member of the assembly from Bihar, Shri Gaya Prasad Singh introduced a bill to completely abolish the capital sentence for the offences under the Indian Penal Code, 1860. However, the then Home Minister, Sir John Thorne replied to the motion and clearly stated twice in the debates of the legislative assembly in 1946 that The Government does not think that it is wise to abolish capital punishment for any type of crime for which that death punishment is now provided.

At the time of the independence, India retained most of its laws from the British colonial government, which included the Code of Criminal Procedure, 1898 (Cr.P.C.1898) and the Indian Penal Code, 1860 (IPC 1860). Section 53 of IPC, 1860 deals with the kinds of the punishments for the offender includes death penalty.

Section 367(5) of the CrPC. 1898 states that court shall in its judgment state the reason and have to keep record of the reasons since why the court decided not to impose the death sentence if the accused is convicted of an offence punishable with death. In 1955, the Parliament nullifies Section 367(5), CrPC, 1898, by altering the position of the capital punishment. Now, courts did not need to record any special reasons to explain why they were not imposing the death penalty in cases where it was a prescribed punishment.

In 1973, the Code of Criminal Procedure, 1898 (Cr.P.C.1898) was re-enacted and the numbers of changes were made, notably to Section 354(3): When the conviction is for crime which is punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall give the reasons for the imprisonment or sentence awarded.

This was a sensible modification from the situation following the 1955 amendment and a reversal of the position under the 1898 law. Now, judges have to provide special reasons for why they imposed the death penalty. These amendments also introduced the possibility of hearing the accused on sentence after the conviction, including the capital sentence, Section 235(2), states that if the accused is convicted then the Judge shall, unless he proceeds in accordance with the provisions of section 360, first hear the accused on the question of sentence, and then award sentence on him according to law.

Supreme Court on validity of Capital Punishment in India
Article 21 of the Indian Constitution states that No person shall be deprived of his life or personal liberty except according to procedures established by law. According to the definition of Right to life in Article 21 itself it has been legally construed to mean if there is a procedure, which is fair, valid and unbiased, then the state by constructing a law can deprive a person of his life.

While the central government has consistently maintained the capital punishment in the statute books to act as a warning for those people who are a threat to the society, even the Supreme Court too has upheld the constitutional validity of death penalty in rarest of rare cases through its judgments.

First in Jagmohan Singh vs. State of Uttar Pradesh, 1973, then in Rajendra Prasad vs. State of Uttar Pradesh, 1979, and finally in Bachan Singh vs.State of Punjab, 1980, the Supreme has announced the constitutional validity of the capital punishment. It said that if death penalty is passed on the offender for the offence which he has committed and the procedure is a fair, just and reasonable one, then the death penalty can be awarded to a convict. However, this will only be held in the rarest of rare cases.

Brief explanation on the criteria for rarest of rare
The principles have been laid down by the top Court in the landmark judgment in Bachan Singh vs. State of Punjab (1980) to deter what wouldcome in the rarest of rare criteria. Supreme Court has laid down certain broad guidelines and said that capital punishment should be given only when the option of awarding the sentence of life imprisonment is unquestionably foreclosed. It was left totally upon the court's discretion to reach this conclusion.

Facts of the case:
The Appellant Bachan Singh was convicted and sentenced for life imprisonment for his wife's murder. When he got released from the jail after the completion of his imprisonment, he was living with his cousin Hukam Singh. Once Vidya Bai wife of Hukam Singh awakened midnight and saw that the Bachan Singh has inflicting axe blow on her sister's face. On the attempt to stop him she also got blown on her face and ear with axe leading injuries on her face and ear make her unconscious.

Hukam Singh with Gulab Singh followed him but he ran away. The Supreme Court by a majority of 4:1 held that the provision of death penalty as an alternative punishment for murder under section 302 insofar it is neither unreasonable nor against the public interest. This case comes in the rarest of rare case as Appellant was dangerous to the society, after his release he has committed another 2 murders which shows possibility of committing another heinous crime by him.

To understand the criteria of rarest of rare, we will discuss some more cases of death penalty execution in India:
In the case of Dhananjoy Chaterjee vs. State of West Bengal, accused raped a 14-year-old girland murdered her. He was a security guard of a same apartment where the victim girl was living. According to the final official verdict, it was proved that he raped her and then choked her to death.

The trial court awarded him death penalty as a punishment which was confirmed by the High Court for the offence under section 302 of IPC for the murder of a victim. Supreme Court dismissed the appeal and said that this rape is most ruthless and comes under the parameter of the rarest of rareas condition of a body of the deceased was horrible which shows the brutality of the crime. On his 39th birthday, he was finally hanged till death in Alipore Central Jail in Kolkata.

In the case of Mohammed Ajmal Amir Kasab vs. State of Maharashtra, kasab was on one of the ten terrorists who involved in the infamous 26/11 attack in Mumbai. He was responsible for the deaths of thousands of people; it harmed the dignity of individual's right to life.

Supreme Court bench upheld the death penalty on August 29, 2012. Kasab had filed mercy petition which was rejected by the President Pranab Mukherjee on November 5, 2012. He was hanged at Yerwada jail in Pune on November 21, 2012 at 7:30 a.m.

In the case of Nirbhaya Gang Rape, six men brutally raped a 23-year-old girl in a bus in Delhi. It was the most heinous crime, whole nation was shocked and in a terror after the news; and asking for the death sentence for all the accused to provide justice to the victim.

For the period of two weeks, she had been treated by the doctors of a Singapore hospital for her serious injuries to her body and brain but after two weeks she died. Soon after the attack police arrested all the six suspects. The oldest accused, Ram Singh who was 34-year-old, he was never convicted as he has committed suicide in prison just after the trial began. The youngest one was only 17-year-old at the time of incidence he got sentence for three years in a juvenile correctional facility.

The other four accused were Ram Singh's younger brother Mukesh Singh, cleaner Akshay Thakur, fruit seller Pawan Singh and part time gym instructor Vinay Sharma. All the four accused were hanged till death on March 20, 2020.

Comparative study of different countries
  1. China
    Capital punishment or death penalty is legal death penalty in the People's Republic of China. It is mostly given to the offender for the commission of murder or drug traffickingand executions are carried out by lethal injection or gun shot. Section 5, Chapter III, Part One of Criminal Law of The People's Republic of China defines death penalty in China.

    By both confirmed and estimated data available, the number of deaths from capital punishment in China is far higher than any other country, while it is comparable to Vietnam and Singapore, and lower than several other countries, including Saudi Arabia, Iran and Iraq. The number of executions has dropped steadily in the 2000s, and significantly since 2007, when the Supreme People's Court regained the power to review all death sentences; for instance, the Dui Hua Foundation estimates that China has executed 12,000 people in 2002, 6,500 people in 2007, and roughly 2,400 in 2013 and 2014.

    The exact numbers of people executed in China is classified as a state secret, occasionally death penalty cases are posted publicly by the judiciary like in the certain high-profile cases that happen there. Other media, such as Internet message boards, have become outlets for confirming death penalty cases usually after a sentence has been carried out. Because of the inaccessibility to official statistics of the number of executions that occur within the death penalty system, academic researchers must use data compiled by NGOs such as Amnesty International, which is the most cited source of reports regarding rates of execution statistics.

    In 2009, Amnesty International counted 1718 executions as having taken place during 2008, based on all information available. Amnesty International believed that the total figure was most likely to be much higher.
  2. United Kingdom
    In United Kingdom, capital punishment was used as a punishment from ancient times until the second half of the 20th century. In 1964, Peter Anthony Allen and Gwynne Owen Evans were the last people executed in Britain who were hanged on the same day. In 1965, capital punishment was suspended for murder and finally it got abolished for murder in 1969. In 1965 the suspension of public execution was a public experiment to see what will happen in such situation and later it was permanently abolished on 1969.

    The capital punishment remained a legally defined punishment for certain offences such as treason until it was completely abolished in 1998. In 2004, 13th protocol to the European Convention on Human Rights was passed and since UK is a party to the convention so it became binding on it. Protocol was prohibiting the restoration of the death penalty for as long as the UK is a member to the convention. The Murder (Abolition of the Death Penalty) Act 1965 is the law under which capital punishment is abolished currently.
  3. India
    In India, death penalty is a legal punishment and permissible for some crimes under the country's main substantive penal legislation, the Indian Penal Code, 1860, as well as other laws. The most recent executions in India took place in March 2020, four men who committed gang rape and murder of Nirbhaya in bus hanged in Tihar Prison Complex in Delhi.

    There are two modes for the execution of capital sentence which are hanging by neck till death and shot to death though it is given in only in rarest of rare cases. Capital Punishment is given as a mode of punishment in many provisions of the Indian Penal Code 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic Substances Act 1985, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act 1987, The Air Force Act 1950, The Army Act 1950 and The Navy Act 1957.

Position of ICJ on Capital Punishment
The ICJ has always stands for the abolition of the death penalty everywhere and supports all actions to achieve this goal. The ICJ considers imposition of death penalty against the rule of law and humanity. It is an extreme form of cruel and inhumane treatment and violation of most basic Right to life which is specified in the Universal Declaration of Human Rights and Article (6) of the International Covenant on Civil and Political Rights.

Reaction of ICJ on Nirbhaya Case judgment
After the decision has been taken i.e. death penalty to the four convicts in the Nirbhaya Gang Rape case of 2012, The International Commission of Jurists condemned the execution of the four convicts and urged Indian government to abolish death penalty. In a press release, the organisation also said that it is the duty of the government to introduce systematic changes in the legal system which would deter violence against women and improve access to justice for women.

The ICJ's Asia � Pacific Director Frederick Rawski said that State � sanctioned executions are little more than public theatre that risk celebrating and perpetuating violence at the expense of the rule of law, and also said that the imposition of death penalty did nothing to improve the lives of women. ICJ opposed capital punishment in all cases without exception as a violation of the right to life and right to get freedom from cruel, inhumane or degrading punishment.

Stating the ICJ's opposition to capital punishment, the organisation called on the Indian government to take immediate steps to abolish capital punishment from the legal system, as prescribed by repeated UN General Assembly Resolutions. The Law Commission had recommended abolishing it for all crimes other than terrorism related crimes and waging war.

The ICJ further added that under the right to life under the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee has made it clear that crimes not resulting directly in death can never be taken as the basis for the imposition of the death penalty and India is also a part of ICCPR. The ICJ is an active campaigner against the capital punishment all over the world. It has been routinely talked about this issue through various conferences, meetings and addressed this issue in various countries like Botswana, India, Liberia and Pakistan and through interventions in various UN and regional fora.

Pros and cons of Capital Punishment
County, Indiana, prosecuting attorney writes:
'There are some defendants who have earned the ultimate punishment; our society has to offer by committing murder with aggravating circumstances present. I believe life sacred. It cheapens the life of an innocent murder victim to say that society has no right to keep the murderer from ever killing again. In my view, society has not only the right, but the duty to act in self-defense to protect the innocent.'
  1. Strong deterrent against violent crimes:
    'Capital Punishment is more likely to deter more than other punishments because people fear death more than anything.' said Ernest van den Hang, Professor of Jurisprudence at Fordham University. The goal of law is to provide deterrence against the violent crimes so they can set an example in the society of proper justice system.

    The best method to stop the person from committing a crime is to show him the fear of consequences of his actions. Like there is a saying that if people will do any immoral act in the present life then they will go into the hell after the death, so it prevents people from doing the immoral act as they have a fear of going into hell. In the same way fear of capital punishment can prevent a person from committing a violent crime as a losing of one's life is a greatest fear of an individual. It also acts as a moral to the rest of the society.
  2. Retribution:
    The criminal should be punished with the same intensity of punishment so he would be able to realize how much loss he has created to the victim, no matter, even if it is a capital punishment. If the criminal has snatched the peace, liberty or life of any individual then the justice says that he should also be deprived of all these facilities so he can realize his offence and victim can be provided with the justice.
  3. A sentence of life in prison is disproportionate to the capital crime:
    If a convict of a capital crime provides a life imprisonment in a prison, then it would not a justice provided to the victim and disproportionate outcome of the action. If the crime committed by him is rigorous then he should also get the rigorous punishment.

Amnesty International believes:
'The death penalty is the ultimate denial of human rights. It is the pre-meditated and cold-blooded killing of a human being by the state in the name of justice. I t violates the right to life�It is the ultimate cruel, inhuman and degrading punishment. There can never be any justification for torture or for cruel treatment. Both rights are protected under the Universal declaration of Human Rights, adopted by the UN in 1948'
  1. Capital Punishment failed to deter violent crimes in many states:
    Capital punishment many times does not show its effect on the rates of violent crimes. Ironically, it has been seen that states with most executions have the higher murder rates. As capital punishment was created to deter the violent crimes, law makers felt that people will fear of losing his/her life so it will prevent from committing violent crimes. But it seems ineffective for the motive it was created.
  2. It creates a revenge factor which may not best serve justice:
    The theory which demands eye for an eye is the strongest argument of the capital punishment. How can it be justified if the state would do the same thing which murderer does, to provide justice? Life is a precious gift of God; no one has a right to devalue it and it offers the tragic illusion that we can teach that killing is wrong by killing. Retribution is a positive term of revenge, actually it is a revenge which is morally wrong and when something is morally wrong, it cannot be legal.
  3. The death penalty can execute someone who is possible innocent:
    No one can be perfect, everyone makes mistakes. This implies on the judiciary as well. Their decisions may go wrong at times which lead to the wrongful execution of innocent people. In this case an innocent person's life is lost which cannot be reversed back. There have been cases when justice system has introduced false evidence against the defendants and he got executed. Accused can be coerced to admit his guilt or witness can be manipulated. Sometimes there is a biased decision in which all accused of the same crime are not punished equally.

In our opinion, after analyzing pros and cons of capital punishment and looking at the situation of crime in different countries we can only say that having capital punishment is right. As even if there is no capital punishment then there will be no improvement in crime rate but there can be an explosive rise in crime rate as there will be no fear of death anymore among criminals. Even if the crime rate is increasing under the fear of capital punishment we cannot imagine the consequences of removal of capital punishment in such country.

Capital punishment can also provide a form of relief to the families of the victim and help in removal of pests known as criminals who have already done something so inhuman which cannot be forgiven and such people cannot be allowed to move around freely as it will do more harm than good. Also the argument of it being cruel is invalid as there is no torture involved and in modern time capital punishment is given in the most humane manner possible.

Moreover, even if we decided to not let the criminal be released there is a small chance that he might escape from there and moreover if we give them life time sentence it also means that we are feeding him and giving him a place to sleep for life time for the crime he has done which is not fair to the victim or his family. Moreover, in India the capital punishment is given on rarest of rare cases as it tries to keep the rights and morality of the society intact and it cannot be questioned as to save one person the whole society cannot be endangered.

  6. India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp. 17-18
  8. Op.cit. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
  9. Jagmohan Singh v. State of U. P. (1973) 1 SCC 20
  10. Bachan Singh v. State of Punjab (1980) 2 SCC 684
  11. DhananjoyChatterjee v. State of West Bengal and Ors. (2004) 9 SCC 751
  12. Mukesh v. State (NCT of Delhi) [(2017) 6 SCC 1]
  13. Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1
  17. Eng3.pdf
Written By:
  1. Ayush Pandita (B.A.LL.B/ Sem. 4th/ Lloyd Law College, Greater Noida)
  2. Radhika Yadav (B.A.LL.B/ Sem. 4th/ Lloyd Law College, Greater Noida)

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