WHAT IS CAPITAL PUNISHMENT AND ITS HISTORY?
Capital punishment or death penalty is a legal death sentence given to the accused by the state for a crime or wrongdoing that has been committed by them. The practise of carrying out this penalty is called execution. It can be only ordered by state. The most distinctive thing about this punishment is that is irreversible. Indian Penal Code, 1860 gives a complete description of the crimes and it also states which are the crimes against which the capital punishment is given. The Indian Penal Code of 1973 from its Section 53 gives the meaning of punishment and it bifurcates the capital punishment into two categories- IPC, 1860 and special or local legislations.
Capital punishment is not a new concept it has been prevalent here since a long time. And it has not only been a part of Indian culture but other parts of the globe as well.
Capital Punishment in India is not a new concept, it has been prevailing in the country even before the time of independence. It has been witnessed in India in nine cases and a total of thirty executions has taken place till date. Death penalty in India has been since the time, when it was under the monarchy even during the time when Indian subcontinent was a part of the Mughal empire incidents of death penalty were witnessed. Though they were considered as a last resort and only when something absolutely unforgiven was done death penalty or capital punishment as now called, was executed in a very painful and furious ways. Though these methods were replaced in the New British system of criminal justice. British Designed the systematic penal code for criminal trials and therefore they can be held partially accountable for its abolition though through amendments systemized way to give death penalty has been seen. Though there has been an abolition, the Indian Penal Code has the provisions of capital punishment and it is still practised.
Through Article 21 of the constitution of India it has been ensured that every citizen of the nation has fundamental right to life and liberty and many would argue that capital punishment is violating of this fundamental right but the Hon’ble Supreme Court has made it very clear that such a punishment would be granted in the “rarest of the rare” cases and the reasons for sentencing a person to such a punishment will have to be special. The criterion for deciding the “rarest of the rare” is that it should be given when the circumstances are without any argument foreclosed. Though measuring the circumstances depends on the apex court and they have to check whether justice cannot be delivered without the capital punishment. Also, questions have be asked. Firstly, that is the crime committed is uncommon which makes death penalty necessary and life imprisonment not sufficient. Secondly, it questions whether is there no way other than capital punishment for the offender even if the maximum weightage of circumstances if favouring the offenders.
CRIMES FOR WHICH CAPITAL PUNISHMENT IS GIVEN
- Section 120 of Indian Penal Code- when the person is party to criminal conspiracy
- Section 121 of Indian Penal Code- when there is a crime of waging war against India
- Section 132 of IPC– Abetting mutiny in the armed forces
- Sections 302 and 303 of IPC- Murder is a capital crime
- Section 305 of IPC- Encouraging or abetting a minor to commit suicide
- Section 194 of IPC- Fabricating false evidence with the intention of procuring a conviction of a capital offence
- Section 31A of narcotic drugs and psychotropic substances act, 1985- Crimes against humanity, terrorism, crime against state, drug trafficking
- Section 376AB of IPC, Section 42 of POSCO Act 2012 and Criminal Law Amendment Act, 2013- Rape and gang rape of a girl under the age of 12
- Section 396 of IPC- Dacoity with murder where all the members even though one has committed the murder will be liable for death penalty- 396 of IPC
- Section 376 of IPC- Rape and if the perpetrator inflicts injuries leading to death of the victim or incapacitation in a continuous vegetative state or has repeatedly committed the offence
METHODS OF EXECUTING THE OFFENDER OF CAPITAL CRIME
Execution by hanging was called for by the code of criminal procedure, 1898 as a method of execution and the same was adopted in Code of criminal procedure 1973 and it has been a long drop. So far 8 people have been hanged in the current century
The army, navy and air force acts also provides for execution of the death sentence by the way of court martial. Court martial can be done either by hanging or shooting to death.
RIGHTS OF THE OFFENDER
The accused can ask for a mercy plea from the president of the country or in case of a state is concerned the governor has the pardoning power. President and governor have the power to grant mercy under articles 72 and 161 of the constitution of India. If the Hon’ble Supreme Court refuses or turns down the mercy appeal of the offender regarding the capital punishment the accused can submit a mercy petition with president of the country or governor of the state. These powers are not personal to the office holders and are to be exercised by the aid of the council of ministers under articles 74 and 163 respectively.
These powers are granted to so as to avoid judicial errors and miscarriage of justice. It is to ensure that the fundamental as well as human rights of the person are not infringed upon. It lays down heavy responsibility on the power holders and requires full applicability of mind. A fair and speedy trial should also take place given justice delayed is justice denied and life of a person is in question. The origin of these powers is the government of India act, 1935 though they differ a bit from that of the governor general of India.
CAPITAL PUNISHMENT- A DILEMMA
It is argued between supporters and those against the capital punishment whether it is just or not. It has been a long going debate which still is not completely resolved. The supporters put forth the argument that the criminals who commits the crimes which are heinous and can shake the humanity to the core should be dealt with harshly and punishment should be in proportion with the crime. It is also said that some people cannot be reformed and granting mercy may lead to the repetition of crime by the one granted mercy. The ones against the capital punishment put forward that it is the worst way of violation of the human rights of a person as it basically violates the right of life which every human being has and also it violates one the fundamental rights- Article 21 “right to life”. Also, sometimes due to the decision taken it may lead to judicial error as the capital punishment stands irreversible. One cannot bring a person back and if the wrong person is executed it is miscarriage of justice. The argument till date has not found an end. Whether capital punishment is right or wrong still stands unclear.
Capital punishment has had a long history and it still is prevalent in our country since ages back. Capital punishment not only has legal side but a moral side as well. For capital punishment is a very big step that needs critical examinations before being sentenced to, to protect law. Capital punishment has not only been a part of Indian system but all around the world. A handful of countries still continue the practise of death penalties. The system has provided a way to grant justice to the one who had been wronged at heinous level but at the same time made sure that the one accused do not fall prey to such harsh punishment without any right.
Author: Lavanya Goel,
Symbiosis Law School, Noida