CAPITAL PUNISHMENT IN INDIAN CONTEXT

ABSTRACT

This paper mainly focuses on execution of capital punishment in india criminal laws and also
some international laws on capital punishment .Capital punishment or we may say death
penalty in the rarest of rare case can be imposed on the rarest of rare case can be imposed on
the convicted person . various legal provisions has been give under criminal law of india, i.e.,
IPC and other criminal penal code according to Article 21 of Constitution Of India , “no
person shall be deprived of his life and personal liberty except according to procedure
established by law in so many cases death penalty confined by Supreme Court of india. In
21st century 140 countries has abolish capital punishment recently the law commission of
india in report no 262 submitted that death penalty gradually may abolish .in this paper, we
also included the positive and negative aspects of capital punishment .

We also tried to explain the changing nature of capital punishment.

INTRODUCTION

All punishments are based on the same proposition i.e. there must be a penalty for
wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that
it is both right and just that a person who has done wrong should suffer for it; the other is the
belief that inflicting punishment on wrongdoers discourages other from doing wrong. The
capital punishment also rests on the same proposition as other punishments.

The capital punishment debate is the most generally relevant debate, keeping in mind the
situation that has been brought about by today. Capital punishment is an integral part of the
Indian criminal justice system. Increasing strength of the human rights movement in India,
the existence of capital punishment is questioned as immoral. However this is an odd
argument as keeping one person alive at the cost of the lives of numerous members or
potential victims in the society is unbelievable and in fact, that is morally wrong.

CAPITAL PUNISHMENT : MEANING

Capital punishment, also known as death penalty refers to execution of an offender

sentenced to death after conviction by a court of justice for a criminal offence. It shall be
differed from extrajudicial executions carried out without the process of law. Capital
Punishment is awarded for the most heinous and grievous crimes against humanity and is
considered to be the gravest of all punishments. The implication of capital punishment has
always been the death sentence whereas the definition and extent of such crimes vary from
country to country, state to state. Capital sentence means death sentence by common usage in
jurisprudence. Capital Punishment deters criminals from committing more serious offenses.
HISTORY OF CAPITAL PUNISHMENT

Capital punishment is in usage since ancient times. Capital Punishment in primitive time was
awarded for murder, theft, robbery in the arbitrary manner by the King. Draconian Code of
Athens made crime punished only by the Death penalty in the Fourteenth Century B.C. Also
in the Ancient legal system, death penalty was considered as the highest penalty which was
awarded for certain offences such as subverting the State , killing , adultery , murder, theft,
etc. There were many ways for inflicting capital punishment in ancient times.

The Mahabharata and Ramayana, the Indian epics also gives references regarding the
amputation of criminals to death. In colonial India, death was prescribed as one of the
punishments in IPC, 1860 which listed a number of capital crimes. Also during the Medieval
Period, capital punishment was in its crudest form.

In the British system of Criminal Justice during the nineteenth century death penalty was the
only way of inflicting such punishment.

INDIAN SCENARIO

Since time immemorial Capital Punishment is usage in India. It is as old as the Indian
Society. The administration of criminal justice as an integral part of the sovereign function of
the State did not seem to have emerged in India till the Smriti period. The credit goes to
smritis, mainly Manu, secondly to the Artha Shastra of Kautilya in making administration of
criminal justice as part of the sovereign function of the State. So, it lacks a coherent
schematisation. In the Buddhist texts also, references to death penalty were found. Capital
Punishment was in vogue for the offences of moral turpitude. Muslim period marks the
beginning of a new era in the legal history of India. The social system of the Muslims was
based on their religion. Muslims after conquering India imposed their criminal law on Hindus
whom they conquered. The sources of Muslim Law were Quran, Sunni and Sunna. The
traditional Muslim Criminal Law broadly classified crimes under three heads: (i) Crimes
against God (ii) Crimes against the sovereign and (iii) crimes against private individuals and
prescribed Capital Punishment for certain offences.

The British began to intervene with the Muslim Penal Law , only such modifications were
made as were required to remove defects. The vital role in the capital offences was the
motive for the commission of that offence than the manner of committing the offence. The
trial of Nand Kumar was considered as a landmark example for the miscarriage of justice in
the British India .The Law Commission under the Chairmanship of Lord Macaulay prepared
the Indian Penal Code for the first time in 1860 which was adopted on 6th October, 1860.
The Indian Penal Code, 1860 gives provisions regarding the substantive offences and
prescribes punishments for such offences. And the Indian Penal Code is still in existence.

In India, one of the members from Bihar introduced a Bill to abolish the capital punishment
for criminal offences under IPC until then in 1931 there was no such issue raised about
capital punishment. And the bill in motion was rejected by the then Home Minister.
In the debates of the Legislative Assembly ,the then Home Minister Sir John Thorne stated in
1946 the Government's policy on capital punishment in British India prior to Independence.
Laws laid down by the British colonial government, which included the Code of Criminal
Procedure, 1898 and the Indian Penal Code, 1860 were retained by after Independence. There
were six punishments that could be imposed under the law including death as provided under
the Indian Penal Code.

The Supreme Court ruled that the judgement shall state the reasons for the sentence awarded
with imprisonment for life, or for term of years or death sentence in case of conviction for an
offence.

Now, the special reasons for why the death sentence has been imposed has to be provided by
the judges as the significant modification from the situation following the 1955 amendment.

INTERNATIONAL SCENARIO

In the past decades the international scenario has evolved both in terms international law and
state practice regarding capital punishment.

The classification can be made on basis of capital punishment status, internationally on

following basis i.e., abolitionist for all crimes, abolitionist for ordinary crimes and abolitionist
de facto.

Some of the most populous nations in the world including India, China and US are potentially
subject to this punishment whereas only minority of countries retain and have usage of capital
punishment.

CAPITAL PUNISHMENT IN INTERNATIONAL HUMAN RIGHTS TREATIES

 The International Covenant on Civil and Political Rights (‘ICCPR’) lays down provisions
regarding the imposition of death penalty in international human rights law. It does not
abolish the death penalty, but gives provisions regarding the right to life, and contains
important safeguards to be followed by countries who retain the death penalty.

 In the year 1991, the Second Optional Protocol to the ICCPR came with the objective of
abolition of the capital punishment which is the only treaty directly concerned with
abolishing the capital punishment, which is open to signatories from all countries in the
world.

 On July 2015,around 195 countries had ractified the Convention on Child Rights which
prohibits the use of capital punishment against the persons under t18 years of age.

 The International criminal courts excludes the capital punishment as the punishment
which were established during the World War 2 in the Nuremberg and Tokyo during its
evolution.

India has ratified the ICCPR and the CRC, and is signatory to the Torture Convention but
has not ratified it. Under international law, treaty obligations are binding on states once they
have ratified the treaty. Even where a treaty has been signed but not ratified, the state is
bound to “refrain from acts which would defeat the object and purpose of a treaty”.

CAPITAL PUNISHMENT : THE RECENT POSITION

This has been legally construed to mean if there is a procedure, which is fair and valid, then
the state by framing a law can deprive a person of his life. While the central government has
consistently maintained it would keep the death penalty in the statute books to act as a
deterrent, and for those who are a threat to society, the Supreme Court too has upheld the
constitutional validity of capital punishment in “rarest of rare” cases. 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 Court affirmed the
constitutional validity of the death penalty. It said that if capital punishment is provided in the
law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to
a convict. This will, however, only be in the “rarest of rare” cases, and the courts should
render “special reasons” while sending a person to the gallows.

Methods of execution of Capital Punishment :

1. Hanging- One of the most common methods of execution, still in use in many countries,
usually with a calculated drop to cause neck fracture and instant loss of consciousness.
Notably used by India, Japan, and Singapore.

2. Shooting- Also a very common method. Can be applied: By a single shot (such as the
neck shot, as in China, and by various means in Russia); By firing squad (as in Indonesia).

3. Lethal injection -First used in the United States in 1982, has been used by five other
countries since then, including China.

4. Electrocution -Only the United States and the Philippines have ever used this
method. Now legal in some U.S. states only to replace injection at the request of the prisoner
or if injection is impractical.

5. Gas inhalation - Only the United States and Lithuania have ever used this as a capital
punishment method. Now legal in some U.S. states only to replace injection at the request of
the prisoner or if injection is impractical. Also used in Nazi Germany during World War 2 as
a weapon for mass murder. It has been recently proposed to use nitrogen hypoxia to replace
injection.

6 .Beheading - Has been used at various points in history in many countries. One of
the most famous forms is execution by guillotine. Now used only in Saudi Arabia with a
sword.
Advantages and Disadvantages of Capital punishment

One of the serious punishments is the Capital Punishment. Every person has its own view
point regarding this punishment.

Let us highlight some of the advantages as well as disadvantages of Capital Punishment.

Here are some Drawbacks of Capital Punishment.

1. Violation of Human Rights :

Basic rights of an individual are the Human Rights. Whether the person is a criminal
or not, he has a right to live with dignity. Also, no law has given such powers to any
human to take the life of any other person.
2. Biased Procedure :
It is usually believed that this punishment is biased and is generally more often used
against people who belong to lower strata of the society rather than those who come
from a rich background or we can say a privileged one. Therefore, the poor people are
more prone to this kind of punishment.
3. When the execution goes wrong :
Capital punishment should be banned as sometimes innocent people also face execution.
If this continues, a day will come when the citizens will lose faith in law and justice.
4. Less serious is the Capital Punishment :
Those criminals who commit serious crimes like rape, murder, terrorism should deserve
more punishment. Through this their life comes to an end in a second but they should be
kept in prisons and tortured for their deeds. This will also strengthen the trust of the
people in judiciary.

“A life spent in prison is a worse punishment than an execution”

As there are two sides of a coin, there are some advantages also of capital punishment.

These are as follows –

1. The method is quick, painless and humane :

Death penalty is not at all cruel and unusual as the method of execution has
become more humane now.
2. Stoppage of criminals from committing heinous crimes :
Losing one’s life is the biggest fear known. So, the fear of death penalty acts as a
stoppage when it comes to discourage people from carrying out those crimes.
3. Maximization of the Justice is the sole purpose of our legal system :
Wrongdoers are given opportunities to challenge the court’s decision. Only
because mistake can be made by the judiciary doesn’t mean that this penalty is
wrong.
4. Some hard core criminals will continue doing crimes if there will be no death
penalty :
This stops those prisoners who are imprisoned for life from committing more
heinous crimes.
 5. Retribution doesn’t mean revenge: Justice is necessary and without it the
society will feel that it hasn’t been served properly.

Capital Offences in IPC

1. Section 121 - Treason, for waging war against the Government of India

2. Section 132 - Abetment of mutiny actually committed

3. Section 194 - Perjury resulting in the conviction and death of an innocent person

4. Section 195A - Threatening or inducing any person to give false evidence resulting in the
conviction and death of an innocent person

5. Section 302 - Murder

6. Section 305 - Abetment of a suicide by a minor, insane person or intoxicated person

7. Section 307 (2) - Attempted murder by a serving life convict

8. Section 364A - Kidnapping for ransom

9. Section 376A - Rape and injury which causes death or leaves the woman in a persistent
vegetative state

10. Section 376E - Certain repeat offenders in the context of rape

11. Section 396 - Dacoity with murder

Capital Offences in other laws

1. Sections 34, 37, and 38(1) - The Air Force Act, 1950

2. Section 3(1)(i) - The Andhra Pradesh Control of Organised Crime Act, 2001

3. Section 27(3) - The Arms Act, 1959 (repealed)

4. Sections 34, 37, and 38(1) - The Army Act, 1950

5. Sections 21, 24, 25(1)(a), and 55 - The Assam Rifles Act, 2006

6. Section 65A(2) - The Bombay Prohibition (Gujarat Amendment) Act, 2009

7. Sections 14, 17, 18(1)(a), and 46 - The Border Security Force Act, 1968

8. Sections 17 and 49 - The Coast Guard Act, 1978

9. Section 4(1) - The Commission of Sati (Prevention) Act, 1987

10. Section 5 - The Defence of India Act, 1971

11. Section 3 - The Geneva Conventions Act, 1960

12. Section 3 (b) - The Explosive Substances Act, 1908

13. Sections 16, 19, 20(1)(a), and 49 - The Indo-Tibetan Border Police Force Act, 1992

14. Section 3(1)(i)- The Karnataka Control of Organised Crime Act, 2000

15. Section 3(1)(i) - The Maharashtra Control of Organised Crime Act, 1999

16. Section 31A(1) - The Narcotics Drugs and Psychotropic Substances Act, 1985

17. Sections 34, 35, 36, 37, 38, 39, 43, 44, 49(2)(a), 56(2), and 59 - The Navy Act, 1957

18. Section 15(4) - The Petroleum and Minerals Pipelines (Acquisition of rights of user in
land) Act, 1962

19. Sections 16, 19, 20(1)(a), and 49 - The Sashastra Seema Bal Act, 2007

20. Section 3(2)(i) - The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989

21. Section 3(1)(i) - The Suppression of Unlawful Acts against Safety of Maritime
Navigation and Fixed Platforms on Continental Shelf Act, 2002;

22. Sections 10(b)(i) and Section 16(1)(a) - The Unlawful Activities Prevention Act, 1967

CONCLUSION:

Capital Punishment is as old as that of man-kind. It existed all over the world since times
immemorial, though in various forms. The method of execution may be different- but the
punishment is the same - taking away the human life by the State. Many reformations took
place in other areas of criminology and penology. But, as far as this cruel punishment is
concerned no change had taken place. Though it is proved time and again that execution only
brutalises the persons involved in the process, but does not reform either the accused or the
potential offender- most of the countries are suffering from the notion that execution is the
only answer either for oppression of political rivalry or for prevention of crime in the society.
No researcher till date could prove any special power of Capital Punishment as a deterrent.
Over the past decade many countries abolished Capital Punishment - thus expressing their
respect for human dignity and life. According to the Report of Amnesty International the
Capital Punishment is the premeditated and cold-blooded killing by the State. A time has
come to abolish Capital Punishment from our Penal Statutes.