Author : Sidrah Jami, Student at Amity Law School, Noida
Capital Punishment has been exercised from the Babylonian Empire to the colonies in Europe. It is a type of punishment which is given when the offender commits a crime which is serious and grave in nature. Firstly, the paper introduces the concept of capital punishment. Secondly, the paper focuses on the history of the death penalty and the methods of execution. Thirdly, the paper emphasizes on the theories of capital punishment. Fourthly, the paper focuses on the various types of crimes and legislations under which the punishment of death penalty can be given. Fifthly, the paper emphasis on the changing role of courts in imposing death penalty and capital punishment in the international context. The paper is further concluded by providing that capital punishment is necessary in countries for torturous acts.
Keywords : Capital Punishment, Offender, Crime, Legislation, Torturous Acts.
India is one of the developing countries in the world still there are several crimes reported. The law provides punishments to the wrongdoers based on two motives firstly that the offender should suffer for whatever crime he committed and secondly, that the punishment on offenders will discourage them from committing any other offence. There are various types of punishment given to the offender like imprisonment, life imprisonment, capital punishment, imprisonment with fines etc. Sometimes in rare cases, the crimes result in the death penalty known as capital crimes or capital offences. It differs from state to state and country to country.
WHAT IS DEATH SENTENCE?
A death sentence is a legitimate process wherein an individual is put to death according to the law as a punishment for the offence committed by him . It means that the crime is condemned to death by the law for the criminal offence. The death penalty is likewise called capital punishment. Execution is the actual process of killing the person and crimes which result in the death penalty are known as capital offences or crimes.
The word capital has been derived from the Latin word capitalis which signifies “regarding the head” which alludes to execution by decapitating . As per criminology and jurisprudence, capital punishment is referred to a sentence of death.Many countries in the world have annulled the death penalty. Some of the powerful countries like the United States of America and China despite everything utilise the strategy of the death penalty as punishment . In India, capital punishment is given for grave offences like anti-terrorism, criminal conspiracy, decocting with murder, murder or war against the government under the Indian Penal Code,1860 . There are certain powers given under the Indian Constitution to the president and governor to pardon or suspend the death sentence. Article 21 of the Indian Constitution talks about the Right to protection of life and personal liberty. According to it, no person should be deprived of his right to live a proper life or his personal liberty. The constitution also gives power to the President for providing the mercy of capital punishment. Under the case of Mithu vs State of Punjab , the apex court gave the judgment by striking down the compulsory death sentence for the offenders given under Section 303 of the Indian Penal Code 1860 . Indian has been a part of the United Nations. India voted against the prohibition of the death penalty in the resolution of the UNGA . In November 2012, India still voted against the UNGA resolution for banning capital punishment .
HISTORY OF CAPITAL PUNISHMENT
Capital Punishment has been one of the oldest punishments since the civilization started. In the second or the third millennium the Code of Hammurabi provided a code of laws that were made by the king of the first empire. The code gave the hypothesis of requital like tit for tat and life for life equity. It was found during the rule of Romans and Greeks, Socrates and Jesus were also condemned during the ancient time .
Under the Anglo-American law, the death penalty has always been considered as customary law for grave offences.
(i) Ancient & Medieval Legal History
Babylonian Empire in 1800 BCE was the first empire that presented the idea of capital punishment . The Hammurabi Code used during the Babylonian Empire provided capital punishment for 20 crimes including perjury and theft. Capital punishment has been seen in different ways like beheading, crucifixion, stinging, drowning, burning, blowing from canon, crushing the head by an elephant or throwing a person down steep rocky cliff . The Greek Empire used Draco’s law for the death penalty for all crime providing the word Draconian which impliedly meant extremely harsh. In the 10th century AD, beheading became a well-known practice of public execution as a punishment in Europe  .
(ii) Modern Legal History
In 1668, England proposed the concept of the death penalty in Europe for 50 offences . The number of offences for the death penalty rose from 50 to 222 crimes which included burglarizing, making duplicate stamps, stealing and felling of trees etc. In 18 century, to avoid death penalty England introduced a new practice of transporting criminals to work in American colonies through ships according to the Transportation Act 1717. There was another act implemented called The Judgement of Death Act 1823 which made capital punishment discretionary for all crimes and to give capital punishment in rare cases. In 1861, the number of offences with the death penalty was got down from 222 to 5 which included murder, reconnaissance, espionage, treason, piracy and arson in the royal dockyard. In 1868, public executions were banned and abolished.
In the 18th and 19th centuries, many European countries nullified capital punishment. Britain passed the Murder (Abolition of Death Penalty) Act, 1965 under which the punishment of murder of the death penalty should be replaced with the punishment of life imprisonment. In 1998, the United Kingdom abolished the death penalty.
METHODS OF EXECUTION IN DEATH
There are different types of execution methods:
1) Death by burning: Under this type of execution, the person was burnt to death. The death of Joan of Arc happened through the burning on the ground as she was a witch.
2) Guillotining: Under this type of execution, the accused person’s head was placed in a round gap on a wooden square and a blade was dropped cutting the head of the accused. This execution was invented by Dr. Joseph and the practice was famous during the French Revolution.
3) Headman’s Axe: Under this type of execution, the head of the accused person was placed on the wooden platform and the executioner chopped off the head by an axe of the accused.
4) Wheel: Under this type of execution, a wheel loaded with spikes was rolled upon the accused or he attached the person to a wheel and rolled him down a hill.
5) Execution by firing: Under this type of execution, the accused was attached to a pole and later a firing squad was called upon to fire on him.
6) Gas Chambers: Under this type of execution, the people were sent to the gas chambers. This was famous during the Nazi Germany conflict under which Adolf Hitler sent many people to camps.
WHAT GAVE SANCTION TO THE DEATH PENALITY
There have been various theories of punishment for providing death penalties like:
1. Deterrence theory:
This theory concentrated on providing harsh and serious punishments according to the law for the forestalling an individual to perpetrate the crime again in the future. It had two essentials firstly that the person should not commit the offence again in the future and secondly preventing other people in society to commit the same crime due to the fear of the punishment. Specific Deterrence is a type of deterrence that aims to prevent the convicted persons from committing the crime in the future . One of the reasons for this theory was the people’s fear of death more than fear of imprisonment. According to this theory, a person’s life should be the most sacred thing.
This theory began from the Hammurabi Code of the Babylonian Empire. It meant if a person breaks a bone of another individual then his bone should also be broken. It is based on the principle of “lex talinonis” which meant the principle of “tit for tat”. Retribution means rebuffing someone as a method for retribution for committing a crime. This theory is based on the idea of rendering revenge and not reforming a person. It is based on a sense of moral responsibility. If any person steals something then he is ethically liable for the act of stealing and punishment. The Retribuivists believed that punishment should be proportionate to the offence the person commits. However, this theory also had counter-intuitive complications.
The aim of this theory is to prevent the crime itself. It does this by keeping the criminal away from society to prevent future crimes. The death penalty and life imprisonment are justified under this theory since they intend to keep the offender from entering the society again.
Prevention has always been the principal aim of punishment. Even if the punishment intends to inflict pain or loss on the offender, it will almost always aim to send a message to society about not repeating the same offence and the consequences which repeating it would entail.
With the death penalty, the criminal is permanently disabled from committing any other crime. There is an affirmation that the offender will not commit the crime again.
CAPITAL PUNISHMENT IN INDIA
During the ancient period in India, the Manusmriti provided the death penalty to the offenders who committed the offence of murder. The punishment was provided so that people can abstain to commit the crime again. During the Mughal regime, the offenders who perpetrated crimes were dressed in buffalo skin and were forced to stand in the sun. There was a serious punishment called “gungarao” under which the accused was squashed by the elephant. The Indian Penal Code (IPC) of 1860, provided the death penalty for the crimes especially during the colonial period. In 1931, Shri Gaya Prasad Singh proposed the notion that there should be the nullification of the death penalty, but the Legislative Assembly didn’t pass the notion.
The Chairman of the Draft Committee of the Constituent Assembly Dr. B.R. Ambedkar proposed the principle of non-violence and wanted to abolish Capital Punishment . Under Section 367(5) of the CrPC 1898, the court was given an option to provide capital punishment . After 1947, capital punishment was given for various crimes. Section 367(5) of CrPC was repealed in 1955 by Parliament . The provision given under IPC has substituted the punishment of “transportation of life” for “imprisonment of life” according to the Amendment Act 1955 . The CrPC 1973 provided that court should provide proper and special reasons for awarding a sentence of death .
CRIMES PUNISHABLE BY DEATH PENALTY IN INDIA
1) Aggravated Murder
According to Section 302 of the Indian Penal Code, 1860 murder is a crime. Under the case of Bachan Singh vs State of Punjab, the apex court held that the death penalty can only be given under some rare cases. The death penalty can only be given under following circumstances:
(i) Making of an association and using of guns which results in the death of an individual (Section 6 of Unlawful Activities (Prevention) Amendment Ordinance 2004)
(ii) The act of committing or assisting someone to commit sati then he will be punishable to death (Section 4(1) of The Commission of Sati (Prevention) Act)
(iii) The kidnapping of a person and later that killed person is killed then he is punishable by the death penalty. (Section 364A of IPC,1860)
(iv) Being in any kind of criminal activities which results in death then will be punishable by the death penalty. (State laws)
It is the act of waging or attempting to wage a war against the member of air and navy forces, government, soldiers and officers will be punishable by the death penalty. (Article 136 and 121 of IPC,1860).
Under this, if any type of weapon or explosive which can cause danger to the lives of people or serious damage to property then it is punishable by the death penalty. (Section 3(b) of Explosive Substances (Amendment) Act, 2001)
4) Grave rape offence
(i) Any person who commits rape which leaves the victim in a vegetative state or causes the death of the victims then that person will be given the death penalty. (Criminal Law Amendment Act).
(ii) After the Nirbhaya Gang Rape case in 2012, there were repeated gang rapes that were punishable under the death penalty. (Criminal Law Amendment Act 2013).
(iii) After the rape of 8-year-old Kashmiri girl Asifa Bano, there were changes in Criminal Law (Amendment) Ordinance 2018. The court held that the death penalty should be imposed for offenders who commit rape below the seven years of age and minimum punishment of 20 years of prison with a fine.
THE INDIAN COURTS’ CHANGING ATTITUDE ON DEATH PENALTY
Under the case of Jagmohan Singh vs State of UP , the court challenged the violations of
Article 14, 19 and 21 of Constitution of India. It said that the courts should provide discretion in the death penalty. It was the first case that challenged death penalties in India.
Under the case of Furman vs Georgia , the US Supreme Court struck down the schemes which imposed capital punishment by saying that capital punishment was a violation of constitutional provisions. Under the case of Gregg vs Georgia , the US court held that the imposition of the death penalty didn’t violate the eighth and fourteenth amendment given under the US Constitution.
Under the case of Jagmohan Singh vs State of UP , the Supreme Court held that the death penalty doesn’t violate the Indian Constitution. The court said that the judges will be given the discretion to impose the death penalty or not. However, this case came before the re-enactment of CrPC 1973.
After the re-enacted CrPC came in 1973, another case came up. Under the case of Rajendra Prasad vs State of Uttar Pradesh , which focused on the special reasons for the passing of death sentence under Section 354(3) of CrPC 1973. The court held that special reasons which are given under Section 354(3) of CrPC are related to the criminal and not the crime.
Later in 1979, a landmark case called Bachan Singh vs State of Punjab  came up. Under this, the death penalty was challenged as an inhumane, cruel act. It was argued that the main aim of imposing punishment was to help the person to reform effectively. Four out of five judges bench said that the death penalty is constitutional. It said that a death penalty can only be imposed after knowing the circumstances of the criminal and the crime. This has been considered as an important case in criminal law as it emphasized that the death penalty can only be given under rare cases.
It was held that there should be mandatory death sentences given for some crimes however this was challenged under the case of Mithu vs State of Punjab . Under this case it was held that mandatory death penalty is unconstitutional as it doesn’t look at the special circumstances in the cases, doesn’t provide a chance to the offenders to be heard and deprives the court to follow and record special reasons under Section 354(3) of CrPC.
The case of Deena vs Union of India  dealt with the question of whether execution by hanging is constitutionally valid or not. The court held that hanging doesn’t involve any cruel or torturous act therefore the court rejected the method of hanging.
Under the case of T.V. Vatheeswaran vs State of Tamil Nadu , Supreme Court held that if the sentence of death sentence is exceeded more than two years then it violative of Article 21 of the Indian Constitution. However, this judgment was challenged under another case Sher Singh vs State of Punjab , where the court held that a delay in the death penalty doesn’t mean to convict or quash the sentence of death.
DEATH PENALTY IN INTERNATIONAL CONTEXT
Death Penalty is a punishment that is given after the offender commits a serious or heinous crime.
According to the Universal Declaration of Human Rights, no person should be subjected to any type of torture, cruel or degrading treatment which violates their basic human rights.
Mostly on a global level, many institutions have criticized the concept of the death penalty. The United Nations General Assembly (UNGA) proposed that if there is a case of death penalty, then there should be a fair trial in every country. The United Nations Economic and Social Council (UNESCO) proposed that every country that is a member of United Nations should abolish the practice of the death penalty and if any country that doesn’t want to abolish the death penalty must ensure speedy trial to the defendants. Many countries who were a member of the European Union abolished the concept of capital punishment. Capital Punishment was also abolished in England after the implementation of Murder (Abolition of Death Penalty) Act, 1965.
Indian has always opposed the notion of the abolition of the death penalty proposed by the United Nations. It has opposed because every member state has a choice of running their own legal system abolishing the death penalty or not. India has given death penalties only in rarest cases.
We’re living in the 21st Century. In this century, human beings should be treated properly and humanly. So capital punishment should be used in rare cases. However, death sentence is also required to create fear in the mind of the offender so that they think twice before committing a heinous offence. Death sentence also helps in creating peace and harmony in the society. The Indian judiciary has played a major role in imposing the punishment of death sentence. It has implemented various laws under which the death penalty can be given. It has also given laws in which the death penalty has been changed to life imprisonment by using the doctrine of rarest of the rare.
- Franklin E. Zimring, The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code
- Kronenwetter, Michael,Capital Punishment: A Reference Handbook
- Richard C. Dieter, The Death Penalty and Human Rights: U.S. Death Penalty and International Law, Feb 2004, http://www.deathpenaltyinfo.org/Oxfordpaper.pdf
- 25 Majumder, Sanjoy. “India and the death penalty.” BBC News 4 August 2005.
- Mithu v. State of Punjab, (1983) 2 SCC 277.
- VENKATESAN, V. (7 September 2012). “A case against the death penalty”. Frontline. Retrieved 30 July 2013.
- “General Assembly GA/10678 Sixty-second General Assembly Plenary 76th & 77th Meetings”. ANNEX VI. Retrieved 30 July 2013
- “General Assembly GA/11331, Sixty-seventh General Assembly Plenary 60th Meeting”. 20 December 2012. ANNEX XIII. Retrieved 30 July 2013
- Monica K. Miller and R. David Hayward, Religious Characteristics and the Death Penalty, http://www.jstor.org/stable/25144611
- History of Death Penalty Laws, FindLaw, Thomson Reuters, https://criminal.findlaw.com/criminal-procedure/history-of-death-penalty-laws.html.
- Methods of Execution, Death Penalty Execution Center, https://deathpenaltyinfo.org/executions/methods-of-execution.
- Execution in the Middle Ages, History, https://www.history.co.uk/shows/britains-bloodiest-dynasty/articles/execution-in-the-middle-ages,.
- Early History of the Death Penalty, Death Penalty Information Center, https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty.
- Steven Wilf,Law’s Imagined Republic: Popular Politics and Criminal Justice in Revolutionary America (Cambridge University Press 2010).
- Ivneet Kaur Walia, Referrence of Deterrent Theory in Capital Punishment, Social Science Research Network (Dec. 18, 2009), https://ssrn.com/abstract=1525415
- Law Commission of India, July 1968, Report on the Punishment of Imprisonment for Life under the Indian Penal Code, Thirty-Ninth Report, Government of India.
- Code of Criminal Procedure, 1898, Section 367(5) [Repealed by Code of Criminal Procedure (Amendment) Act, 1955].
- Code of Criminal Procedure (Amendment) Act, 1955.
- Law Commission of India, July 1968, Report on the Punishment of Imprisonment for Life under the Indian Penal Code, Thirty-Ninth Report, Ministry of Law, Government of India.
- Code of Criminal Procedure, 1973, Section 354(3)
- Jagmohan Singh v. State of U. P., (1973) 1 SCC 20.
- Furman v. Georgia,408 U.S. 238 (1972).
- Gregg v. Georgia,428 U.S. 153 (1976).
- Jagmohan Singh v. State of U. P., (1973) 1 SCC 20.
- Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646.
- Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
- Mithu v. State of Punjab, (1983) 2 SCC 277.
- Deena v. Union of India, (1983) 4 SCC 645.
- T.V. Vatheswaran v. State of Tamil Nadu, (1983) 2 SCC 68.
- Sher Singh v. State of Punjab, (1983) 2 SCC 344.