DEATH PENALTY: BOON OR BANE
Category: ARTICLE
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Despite global calls for abolition, India retains the death penalty under stringent conditions, reflecting its cultural and legal evolution. Historical perspectives from ancient codes to modern statutes highlight the death penalty's enduring presence. The article reviews international and Indian legal frameworks, including pivotal statutes and landmark judgments shaping death penalty jurisprudence in India. Retentionists' penological justifications—deterrence, retribution, and incapacitation—are discussed in the context of the 35th Report of the Law Commission.
Keywords: Death penalty, theories of punishment
INTRODUCTION
The death penalty is a highly debated and divisive matter globally, especially for democratic countries such as India which provide the right to life with liberty. In the path-breaking judgment in Bachan Singh v. State of PunjabIt was held that the death penalty should only be provided for dealing with "rarest of rare" cases where life imprisonment cannot serve primarily on account of brutal murder or heinous crime at its background. Nevertheless, the practice is still controversial because human rights advocates say it violates basic principles of humanity.
The United Nations has called for the elimination of capital punishment around the world, stressing that trials in which defendants face possible execution should provide their fair share according to just procedure. Cruel, inhuman or degrading treatment is prohibited under the Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights. However, India among 72 other countries still retains the death penalty subject to various conditions.
Capital punishment, throughout history has been used across cultures and followed very different methods of justice from more primitive to completely developed legal frameworks. People in India now debate whether the death penalty prevents crime, or is a violation of fundamental human rights.
HISTORICAL BACKGROUND
The death sentence is an ancient penalty that has undergone substantial change over thousands of years and within varying cultures. As such, During the primitive era laws were not books and death penalties had been pronounced at random over murders; there was no stealing; if you steal you die Same for Trespass.
One of the earliest forerunners to modern death penalty laws is the Code of Hammurabi, in Babylon (current day Iraq) circa 18th century B.C. which prescribed several crimes punishable by death. Likewise, the 14th century Draconian Code of Athens required death be imposed for every offense. The 5th century B.C. Roman law of the Twelve Tables also made death penalty for conviction as a thief, and prescribing several severe forms of corporal punishment even if no deprivation under point (third) was imposed.
Condemning the law based on those of people in ancient egyptian civilizations from the 400 B.C. to the curate century would not have been tolerated by society and for which, they had a penalty for crimes such as sending per order, plundering among others. In Central America, pre-Columbian societies like the Mayans and Aztecs executed people for crimes such as adultery (considered extremely harsh) or murder by first, maiming them publicly.
Cross-eyed of Jesus Christ, in Roman times one crucifixion was a common method for executrices. Capital punishment was used by the Romans primarily as deterrence until its abolition from 6th century B.C., to 4th Century A.D.
In America, the death penalty was initiated by Europeans. The first person to be executed was Captain George Kendall in the Jamestown colony in 1608. In the subsequent 17th and 18th centuries, the MPCL was enacted by various states only to lift them later. Michigan was the first state to lift the MPCL in its entirety, leaving treason out of the mix, following suit were the others such as Rhode Island and Wisconsin in 1846. In the Modern era, the sub-continental era during the Mughal period, for example, Indian execution by hanging only occurred courtesy of clemency. Post-independence, India followed suit though multiple attempts were made to Florence it, for instance, the failed Capital Punishment Bill in 1956. The 35th report of the Law Commission of India supported Death Penalty for very serious and heinous offences.
INTERNATIONAL AND INDIAN STATUTES DEALING WITH DEATH PENALTY
The world community uses several different legal instruments to reject capital punishment and works to ensure fair trials. The Economic and Social Council (ECOSOC), for example, encouraged member states to eliminate capital punishment and to ensure fair and speedy trials in its 1996 resolution. Both the Universal Declaration of Human Rights (UDHR) of 1948 and the International Covenant on Civil and Political Rights (ICCPR) of 1966 stress the importance of fair trial procedures, and both also prohibit treatment that is inhuman, cruel, or degrading. The guidelines described by the UNECOSOC in 1948 Concerning capital punishment are that countries that do not abolish capital punishment and are therefore permitted to impose capital punishment in limited respects must reserve its use for the most serious crimes, not execute pregnant women or persons who are insane, and not execute persons who are under 16 years of age. Article 14 of the ICCPR requires that capital punishment should only be imposed following a fair and transparent trial, without retrospective effect, the right to appeal in higher courts and not to be executed if an appeal or pardon is pending.
In India, the death punishment finds its mention in several sections of the Indian Penal Code (IPC), 1860 which are as follows: Section 120-B, i.e. punishment for criminal conspiracy; Section 121, i.e. waging war against the Government of India; Section 132, I.e. abetment of mutiny; Each mention of capital offences like giving or fabricating false evidence with intent to procure conviction of a capital offence, threatening any person to give false evidence, punishing for murder, Section 305, i.e., abetting the suicide of a child or insane person, Section 364A, i.e, kidnapping for ransom, and Section 396, i.e., dacoity with murder. Nevertheless, Section 303 regarding the imposition of the death penalty for a murder by a life convict was found to be unconstitutional being in violation of Articles 14 and 21 of the Indian Constitution. There are other sections in Indian law that prescribe death penalty for particular offences such as the military and offences against law and order. These include the Air Force Act (1950), the Army Act (1950), the Navy Act (1950), the Indo-Tibetan Border Police Force Act (1992), the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), the Prevention of Terrorism Act (1987), the Defence of India Act (1971), the Explosive Substances Act (1908), the Arms Act (1959), and the Unlawful Activities (Prevention) Act (1967, amended in 2004).
Landmark Judgements
In different landmark cases, the constitutionality and applicability of the death penalty in India has been a matter for an intense judicial conversation. For instance, in the notable case Jagmohan Singh v. State of UP, the death penalty was approved by the Supreme Court disregarding claims of constitutional infractions under Articles 14, 19, and 21 of the Constitution. The case titled Ediga Anamma v. State of Andhra Pradesh argued for the replacement of the death penalty with life imprisonment. The remarkable Bachchan Singh v. State of Punjab judgement revealed the doctrine of "rarest of rare" which justified capital punishment, albeit its opposition from Justice P.N. Bhagwati. Lastly, Machhi Singh v. State of Punjab saw the formulation of guidelines for determining the rarest of rare doctrine. The Supreme Court of India in the case of Rajendra Prasad v. State of UP underlined that the judiciary plays a vital part in the development of sentencing policy. The Supreme Court has articulated the positive aspects of equality and human displacement in capital punishment in subsequent cases, such as the case of Mithu v. State of Punjab, the case of Shatrughan Chauhan v. Union of India and also in the case of Mukesh & Anr vs. State NCT of Delhi & Ors. The jurisprudence on the death penalty in India has been the subject of much debate and these cases play a key role in shaping nuanced approaches to the death penalty.
Retentionists' Penological Justifications
Advocates for the retention of the death penalty, known as retentionists, argue that three primary penological justifications for retaining the death penalty are discussed in the 35th Report of the Law Commission:
Deterrence: Retentionists hold that the death penalty can deter those who might otherwise commit crimes by creating fear of the ultimate punishment, but they note that this contention is not specific to the death penalty and can apply to other forms of punishment as well.
Retribution: This justification consists of the idea of invoking a sanctioned retaliation for a criminal offense, involving a community affirmation of a basic principle of justice that is it not a matter of paying "an eye for an eye," but, as the saying goes, "blood that has been shed demands justice."
Incapacitation: Some individuals, deemed irredeemable due to their inherent cruelty and are considered too dangerous to remain in society. Thus, the death penalty is seen as a necessary measure to permanently remove such threats, with the intention of eliminating a predator from a civilized community.
CONCLUSION
Whereas the Constitution of India, which is hailed for its democratic notions and total protection of fundamental rights, is a reflection of the UN Declaration of Human Rights. The 262nd report of the Law Commission, under the supervision of Justice A.P. Shah, suggests abolition of the death penalty for all crimes other than terrorism and waging war against the state, with major emphasis on the necessity of police reforms, witness protection, and victim compensation schemes. The provision of a death sentence should be limited only in cases where it is most serious. Moreover, unlike the approach that constitutes both complete abolition and blind application of the death penalty, the focus must be on equitability and legitimacy. As also mentioned by Dr. Petite it can be a lawful response if the cases are extremely terrible and he also petitioned for a logical and practical attitude.
