Authors – Suryapratap Singh Jodha,
(1st year Rajiv Gandhi National University Of Law, Punjab)
In today’s era, capital punishment has often become common in our criminal justice system. The apex court of our judicial system, Supreme Court, often recognizes the capital punishment as something which is constitutionally valid, and also a majority of citizens favor its use. Yet capital punishment remains controversial in our justice system. It is so because punishment of death to an offender is an irreversible punishment and so courts have adopted a definite and fixed procedure to ensure right imposition of capital sentence. Multi–layered appeals before the court of law has led to years of delay between sentencing and execution. This delay in justice reduces public confidence in the criminal justice system. So now the main question which comes in mind is whether capital punishment is necessary or not in our present society. Historically, there has been a perpetual and intense debate over the imposition of Capital Punishment but at present the controversial ideas about this subject has been hurled to its peak and were the real question of law.
The Opposing Views:
With the overall development of humanity the perceptions of people regarding the critical and sophisticated matters like the Capital Punishment have changed drastically. Historically around the world there had been a provision of death sentence in the varying range of offences ranging from murder, rape to illegal drug trafficking. But with passing time the common consensus developed among people against the Capital Punishment. It gradually began to be condemned and abominated around the world because of several reasons like:
Unfair and prejudiced use of the provisions of Capital Punishment laws: One of the serious concerns in the mind of every rational law framer and jurist is the potential of unfair and prejudiced usage of Capital Punishment against those who are lagging behind in their social, economic and political backgrounds especially in the backward and third world countries where there is still a great prevalence of mala-fide acts like the excessive corruption and legal manipulation and the countries that doesn’t have a well established judicial and legal aid systems like in the oppressive authoritarian governments like North Korea, Venezuela[as per rating by the ‘Economist Intelligent Unit in 2019] etc. In such cases the powerful and privileged people were often found to be on the safer side and the poor and oppressed person end up ultimately in the clutches of death penalty and at the end of the day, these laws turn out to be the harassment of poor and creation of unnecessary fear in the mind of such people.
Revengeful thought behind Capital Punishment: The proponents of Death penalty often found to be struck into the adage of ‘tit for tit’ or in other way they feel that the person who kills or harms any other person must be met with the same fate as they done with others. But the most simple handy argument raised against such myopic ideology is that the act of culprit can’t be undone and the motive of punishment is just to discourage the crime and not to take revenge of victim and that the such brain-set or such deal of matters doesn’t actually serve the purpose. It can also be said that such ideology is morally and ethically wrong at the very first hand. Renowned reformers like the Cesare Beccaria and Mahatma Gandhi strongly opposed the idea of death sentence and believed that the motive in punishing people must be to end crime and not the person.
The Permanent and un-restorable loss to life: As far as the Capital Punishment is concerned, it is in clear and distinct dichotomy with other kinds of punishments in the way that the consequences of it are permanent and is irreversible i.e. the accused given death penalty has no chance of improving or rectifying himself as his life ends with death penalty. Hence it is often condemned on these bases.
It doesn’t necessarily curb crime: It was often known that the Capital Punishment is not more effective in curtailing crime in comparison to other punishments like the Life imprisonment or large period imprisonments. Obviously the data of benefits of abolishing death penalty is not known but the comparative insignificance of it is commonly known as also claimed by ‘The Royal Commission on Capital Punishment’. This raises a question that why should the Capital Punishment provisions be continued even if it evidently doesn’t have any corrective outputs in comparison to other similar level punishments.
Violation of human rights: Since the enlightenment period when the revolutionary ideas of philosophers like the Hobbes, Locke and Marx emerged and impacted the minds of millions of people, the human life begin to be understood as the central and most significant factor in all the aspects of social, political and economic sectors. Due to such revolutionary changes the concept of ‘Human Rights’ emerged and recognized at international level. In our constitution also the article 21 provides for the life and liberty of every human. Similarly, in 1972 the Supreme Court of USA recognized it as directly opposing to the 8th amendment of the US constitution. So now, the Capital Punishment is considered as the direct blow to the human right of a person and hence it is condemned worldwide.
The supporting views:
India is a large country which is composed of large number of criminals and the crimes that they commit. The main motive behind the punishment to the wrongdoer is to set an example before the society that a person who commits a crime will be severely punished and so in a way it tries to discourage others from doing that wrong. Another motive being that a person committing the wrong should suffer so that he realizes his mistakes. We can understand this more clearly through Nirbhaya gang rape case in which the offenders brutally raped Nirbhaya and even tortured her so immensely that she was hospitalized in an emergency ward but died. Even one of the offenders behind the crime was of view that he doesn’t feel himself to be guilty for what all he did to her. So if such type of offenders will not be getting punished with capital punishment then it will not effectively solve such type of brutalities in the society leading to increasing of crime rate. Thus, it is very much necessary that such type of crimes should definitely be punished with capital punishment so that it creates a fear among the people before even thinking of committing such type of brutality.
Human rights activists argue that a person at any condition should not be punished with the capital punishment because it is violation of their fundamental right of right to life guaranteed under article 21 of the constitution. Even United Nations supports this claim and so they have urged various countries across the globe to not adopt capital punishments. Majority of the countries do not practice the crime of capital punishment in their countries. But the countries like USA, India and China which nearly constitutes to the half of the population of the world still continues the practice of capital punishments in their territories. Specifically, in India capital punishment is awarded for most heinous and grievous offences and a study shows that less than a score have been awarded with capital punishment in the last 10 years.
Now let us focus on the various arguments which were put forward by the human right activists against capital punishment. First argument which human right activists bring about is that every human life is precious and so every human should have right to life which shouldn’t be violated. There is no doubt that human life is precious but like every right to freedom is subjected to some reasonable restrictions and so is the right to life of a person. Although right to life is fundamental of all but this only means if it has to be taken away then it can only be in case where there is a solid proof against the person who is charged off with heinous crime. The criminals were also given the ample number of opportunities to prove his innocence before the court of law. Also if we will not be having the crime of capital punishment then there won’t be a difference between the person committing an offence of kidnapping and coercing the person for ransom and the person committing the act of terrorism which is even more heinous crime to that of kidnapping. Another argument which can be presented in favor of capital punishment is that the alternative to death penalty is generally a life sentence. Is living and spending your whole life in a dingy cell more humane than sending that person to a hangman for a death penalty? It doesn’t seem to be and what about the suicide bombers who voluntarily kill themselves with an objective to kill more and more people. So these types of people who don’t recognize the right to life of others should just be punished with a life sentence which doesn’t seem to justify with the normal view.
There is also harm in sentencing the terrorist to a life sentence instead of capital punishment. This is because if we keep these terrorists in jails then they could be demanded back by their terrorist organization by means of adopting any possible way. For instance, when the terrorist Maulana Masood Azhar was kept in a jail then as a consequence Kandahar Indian Airlines was being hijacked by his terrorist organization so that their main mastermind can be demanded back at the cost of life of the passengers. So it becomes very clear that keeping of these terrorists leads to more killings and subsequently more danger to the human life.
Let’s analyze the next argument made by the human rights activist against the capital punishment which is that if a person gets a death sentence, and later on the facts prove him to be innocent then it will cause an irreparable damage to our justice system. In our country everyone who his charged with a particular crime gets a fair opportunity to prove his innocence before the court of law. For instance, Yakub Menon got approximately 21 years to prove his innocence. Similarly in the Nirbhaya gang rape case the persons charged with the crime of gang rape got enough opportunities to prove their innocence. So here the main matter is whether the person charged with a particular offense got enough opportunities to prove his innocence or not which is very much guaranteed in our justice system ranging from review petitions to the Supreme Court to the mercy petition before the President and a lot more to name and also a well-established procedure is being followed which punishes with death penalty on rarest of rare crimes like in case of drug trafficking in cases of repeat offenses, waging of war against the government, and in extreme cases of murder and rape. Hence, merely a person getting hanged mistakenly does not abolish the capital punishment in cases of severe heinous and grievous offences.
Because of these intensely opposing ideas, we can conclude that at one hand the provision of Capital Punishment seems to be the direct and obvious threat to human right to life and needed to be struck down immediately as done by the tens of countries of the world like the Japan, South Korea, Taiwan etc. But on the other hand in case of severe heinous crimes, the death penalty seems to be the most appropriate solution. Perhaps because of this reason the provision is Capital Punishment seems to be restricted to the ‘rarest of rare cases’ in India.
o Dr. Chandrika Prasad Sharma, “Death Sentence: Repeal or Retention Riddle”, Eastern Book Company
o Robert Hoag, “Capital Punishment”, Internet Encyclopedia of Philosophy, vol.55, No.222, pp. 759-786.
o Roger Head, “Capital Punishment”, Encyclopedia Britannica, inc., April 06, 2020.
o Sinha, S.B. ,“To Kill Or Not To Kill: The Unending Conundrum.”National Law School of India Review, vol. 24, 24, no. 1, 2012, pp. 1-29.
o Manmeet Singh, “Is Capital Punishment Ethical”, Legal Service India.com.