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Capital Punishment: A Contentious Issue

The death penalty, often known as capital punishment, is the execution of a person condemned to death after being convicted of a criminal offence by a court of law. The terms death penalty and capital punishment are frequently used interchangeably, despite the imposition of the sentence does not necessarily result in execution due to the possibility of commutation to life imprisonment.

Capital punishment is considered the gravest type of punishment, and it is provided to those who have committed the type of crime that is grievous, against humanity, and for which there need to be set an example in society. The definition, extent, and implication of the term 'capital punishment are different among countries worldwide, but the one common thing is that it means a sentence of death.[1]

This is an effort to understand the concept of capital punishment, its historical background, why it is under a deterrent theory of punishment and should be imposed or not.

Historical Background
No country around the globe exists where incidents of capital punishment cannot be traced. The history of human civilization reveals that capital punishment has been awarded as a mode of punishment during no time period.[2] Historically, the death penalty was given to pacify the Gods or set an example on the society that what particular types of crimes are considered anti-social and cannot be entertained in any form.

A criminal was considered a person who refused to think what was right and who had willfully chosen to do wrong and outrage his social groups and the Gods. This was a revenge theory. A person's life deserved to be forfeited who willfully chose to do wrong and outrage his social groups or brought profound loss to anyone.[3] Another purpose that could be seen as the reason for capital punishment is that the death penalty is considered a far more powerful and effective deterrent than life imprisonment because man fears death more than imprisonment.

Deterrent theory
Deterrent is a word that meaning to dissuade, and it aims to dissuade bad minds from taking the wrong and illegal path. Among the five theories of criminal jurists, deterrent, retributive, preventive, reformative, and expiatory, this particular theory establishes the dreadful consequences, i.e., punitive actions against the wrongdoer, in order to curb the threats of would-be evildoers, and it also deters criminals from committing the crime again.

The fear of being caught is considerably more terrifying than the severe punishment, according to deterrent theory; when the legal system successfully punishes a criminal, it has demonstrated its power in capturing the criminal. A criminal's behavior is likely affected by seeing a uniformed policeman with handcuffs and a pistol rather than the strict penal provisions on paper.

Over the years, the death penalty has not been very effective in deterring the most heinous crimes in society had it been so there had been only one death sentence to date for a similar type of offense, drawing the point to the number of increasing rape cases in the last decades it is very disheartening that a complete dead stop to this offense has not been achieved.

India is one of the largest countries in the world, which also has numerous crimes and culprits, and to manage with them, we have veritably strong laws in India. Though in India, it is given only in the rarest of rare cases. Capital punishment is described in the Indian Penal Code and the code of criminal procedure. Capital punishment has been there in India since the very beginning, and as times passed, its use has been limited.

In India, deciding the case for the death penalty is based on the doctrine of "rarest of the rare test," which was started in the case of Bachan Singh v/s State of Punjab. This means that the death penalty will only be awarded in the rarest of rare cases. Further, in the case of Macchi Singh & Others v/s State of Punjab - the Three-Judge Bench followed the decision of Bachan Singh.

It stated that only in rarest of rare cases when the collective conscience of the community is in such a way that it will expect the holders of the judicial powers to inflict the death penalty, then it can be awarded if the murder is committed in an extremely brutal, revolting or dastardly manner to arouse intense and extreme indignation of the community, a murder of a member of a Scheduled caste is committed which arouse social wrath, in case of Bride Burning or Dowry Death, when the crime is enormous in proportion when the victim of murder is an innocent child, a vulnerable Women or a person rendered unaided by mature epoch or illness.

In the case of the death penalty, when the punishment of death is awarded, it also limits the scope of introducing new facts or laws in the case. Once a penalty has been carried out, it cannot be reversed.

Arguments regarding Capital punishment
The morality of capital punishment and its impact on criminal conduct have long been a source of heated discussion. People who murder with the intention of taking another's life, according to supporters of the death penalty, have forfeited their own right to life. They feel that capital punishment is a reasonable form of revenge that expresses and reinforces the moral outrage of not only the victim's family, but all law-abiding individuals.

Abolitionists further argue that capital punishment is intrinsically inhumane and demeaning, as it violates the convicted person's right to life. Few argue that research has shown that the capital punishment is not a more effective deterrence than the alternatives of life in prison or long-term incarceration.

While some proponents of capital punishment argue that it has a particular deterrent impact on potentially violent offenders for whom the prospect of jail is insufficient, others argue that it is ineffective. Those who favour capital punishment think that rules and procedures may be designed to ensure that only those who deserve to die are given death penalty.

Legal Regime
In India's legal system, the death penalty is enshrined in the Indian penal code, enabling it to be used only in the most extreme circumstances. The Supreme Court declared that the death sentence should be reserved for the rarest of rare situations. However, it is unclear what constitutes rarest of rare. According to Section 302 of the Indian penal code, anybody who commits murder faces the death penalty or life imprisonment and a monetary penalty.

Further, according to Section 303 of the Indian penal code, if a person serving a life sentence commits murder, he would be sentenced to death. The constitutionality of the capital penalty was questioned under the careful eye of the Supreme Court in the case of Jagmohan Singh v State of Uttar Pradesh. Articles 14, 19, and 21 of the Constitution were violated by Section 302 of the IPC.

The Court upheld the death penalty as constitutional, holding that the right to life is the cornerstone of the opportunity established under Article 19 and that no legislation may be sanctioned that takes away a person's life unless it is reasonable and out in the open publicly.

In India, Protection of life and personal liberty is Article 21 of the Indian Constitution. "No person should be deprived of his life or personal liberty unless in accordance with the method prescribed by law," the article states.. According to this article, every citizen in India is guaranteed the right to life. In India, the Indian Penal Code (IPC) punishes many offenses with the death penalty, including criminal conspiracy, murder, waging war against the government, abetting mutiny, dacoity with murder, and anti-terrorism.

The Indian Constitution allows the President to commute the death penalty. Further, Article 134 provides for: In any instance where the capital sentence was inflicted on an accused in the reversal of an acquittal judgment, an accused has the right to appeal the high court ruling to the Supreme Court.

The death sentence is frequently considered a measure of retaliation against the victims or their families for any horrific crimes or inhumane conduct. However, it is not always possible to use this sentence in every situation when the general public believes it is the most appropriate penalty. In this sense, it is difficult to argue that the death sentence was irrational or unnecessary in a public setting.

If the whole method for a criminal preliminary under the CrPC for arriving at a death sentence is valid, then the inconvenience of capital punishment as enacted by law cannot be considered illegitimate. It was decided that, unlike Article 21, Article 19 does not deal with the right to life and individual liberty, and hence is ineffective for determining the legality of Section 302 IPC's arrangements.

In regard to Article 21, it was determined that the founding fathers saw the right of the state to deprive an individual of his life or individual freedom as a just, reasonable, sensible, and fair technique established by law. There are a few signs in the Constitution that show that the Constitution's authors were completely aware of the presence of capital punishment, such as Entries 1 and 2 in List II, article 72(1)(c), and Article 73(1)(c).

The doctrine of Rarest of the Rare Cases.
Bachan Singh v. the State of Punjab[4] was the first case to establish the doctrine of the Rarest of Rare. In this decision, the Supreme Court sought to establish a theory specifically for offenses punishable by death to clear up an ambiguity for courts about whether to use the worst punishment available.

The year 2008 is remembered for the case of Prajeet Kumar Singh v. the State of Bihar[5], in which the Court defined what a "rarest of rare instances" is. Only "where a murder is performed in a highly violent, deformed, wicked, vile, or despicable style to elevate acute and great anguish of the community" can a death sentence be issued, according to the Court.

The rarest of rare dicta merely acts as a guideline in executing the provisions listed in Section 354(3) of CrPC and entrenches the principle that life imprisonment is the rule and death sentence is the exception.

The Supreme Court said in Santosh Kumar Bariyar V. State of Maharashtra. According to Article 21 of the Indian Constitution, no one's 'Right to Life' may be taken away unless it is done legally.

It has also been suggested that the decisions made in accordance with this law are made subjectively. For example, when a man hacked off his better half's head and executed her for the sake of loyalty, the Supreme Court had no hesitation in ordering it as a rarest of rare instance and mandating death. The decision in Amruta v. State of Maharashtra[6] is relevant here as an example of a circumstance where the Court would not grant death in any case, even though comparable realities were there, as in the case previously described. The Court found that a cold-blooded, cruel, and brutal killing of a young woman of exceedingly young age after committing assault on her deserved to be classified as the rarest of rare.

The SC upheld the constitutionality of capital penalty by a majority of 4:1, and a rule was established that capital punishment must be justified explicitly in the rarest of rare situations. The scope of this manifestation, however, remains unknown. The Bachan Singh case's Ratio Decidendi is that death punishment is holy if it is accepted as an option for homicide and if the typical sentence suggested by law for homicide is detention for life. This means that death penalty must be imposed in the rarest of circumstances, if there is no other option.

India's Stand On Capital Punishment
India retained the 1861 Penal Code, which included the death penalty for murder, until it attained independence in 1947. During the creation of the Indian Constitution between 1947 and 1949, some members of the Constituent Assembly supported abolishing the death penalty, but no such provision was included in the text. Throughout the next two decades, private member legislation to abolish the death penalty was introduced in both the Lok Sabha and the Rajya Sabha, but none of them was enacted.

India voted against a UN General Assembly resolution asking for the death penalty to be abolished.[7] In November 2012, India reaffirmed its opposition to capital punishment by voting against a UN General Assembly draft proposal calling for the death penalty to be abolished.[8]

Bachan Singh v. the State of Punjab[9], a landmark decision from 1980, ruled only in the most exceptional circumstances. The Court was unable to abolish capital punishment in Indian law. According to Articles 21 and 19 of the Indian Constitution, the right to life is a basic fundamental right that all people have. Justice Krishna Iyer declared in Rajendra Prasad v. State of Uttar Pradesh [10] in 1979 that capital punishment violates Articles 14, 19, and 21. The Supreme Court reversed Justice Krishna Iyer's decision in Bachan Singh v. State of Punjab in 1980.

Conclusion
When the death penalty is awarded to the accused, it is more than merely a punishment; we end or kill a person in the name of justice and law. Opposing the death penalty does not mean that someone is supporting the criminal. We are no one to decide who gets to live and who gets to die on the basis of rules and regulations which we made ourselves. The death sentence is founded on deterrent theory, which in general sets an example by instilling dread in the minds of others, although there are undoubtedly other methods to establish a leading example, such as in reformative theory.

As a civilization, we need to eliminate the offense, not the illegal. A chance of improvement can change the life of an individual and can offer him a chance to get back into society, and hence reformative theory has its advantage over deterrent theory.

End-Notes:
  1. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p.1.
  2. Op. cit. Capital Punishment by Dr. Subhash C. Gupta 2000, p.1.
  3. Barnes & Teeters, "New Horizons in Criminology" (3rd ed. ) pp. 314-315.
  4. ibid
  5. [2008] INSC 563
  6. AIR 1983 SC 629
  7. General Assembly GA/10678 Sixty-second General Assembly Plenary 76th & 77th Meetings". Annex VI. Retrieved 30 July 2013
  8. General Assembly GA/11331 , Sixty-seventh General Assembly Plenary 60th Meeting". 20 December 2012. Annex XIII. Retrieved 30 July 2013
  9. AIR 1980 SC 898
  10. 1979 AIR 916, 1979 SCR (3) 78

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