Through this paper, the authors would like to analyze the merits and demerits of capital punishment and also the position of capital punishment in India and other nations. Firstly, authors will explain the meaning ,nature and definition of death penalty. Then, authors will analyze position of capital punishment in Indian nation, important case laws related to it and the reports of Law Commission with regard to capital punishment. In next section, authors will analyze the reasons for abolition of death penalty and what could be the alternative way of punishing the inhuman criminals instead of capital punishment.
The authors would thereafter discuss why capital punishment should not be abolished and the concept of retribution. The authors would describe the position of capital punishment in Saudi Arabia. At the end, the authors would discuss the case of Mohammad Azmal Kasab.
Thus, the authors would try to make a balanced study of the pros and cons of capital punishment.
Capital punishment also known as death penalty is the awarding of death sentence to a person who commits a heinous crime. Capital punishment is awarded by the state rather than an individual and it is a legal process.
The term capital punishment has been derived from the Latin word ‘capitalis’ or ‘caput’ which means head. The term capital punishment was earlier used to refer to beheading which was one of the forms of awarding death penalty in olden times.
Collins Dictionary defines capital punishment as, “Capital punishment is punishment which involves the legal killing of a person who has committed a serious crime such as murder.”
Capital punishment in India – In India, capital punishment is awarded for ‘rarest of the rare’ cases. The mode of carrying out capital punishment is hanging the accused until death.
Section 53 of Indian Penal Code prescribes death penalty as one of the punishments for crimes committed. Death penalty is also prescribed as a punishment under section 302 of the Indian Penal Code which says that a person can be awarded with life imprisonment or death penalty if he commits murder. The principle of awarding death penalty only in ‘rarest of the rare’ crimes was established for the first time in the case of Bachchan Singh v. The State of Punjab where a five – judge bench (constitution bench) of the Hon’ble Supreme Court held that death penalty should only be awarded in situations where there is no apparent alternative but capital punishment. The constitutionality of capital punishment was challenges in this case as it went against the provisions of the constitution and denied the accused every chance of reforming himself.
In another landmark case of Machchi Singh v. The State of Punjab, the Supreme court laid the test to determine whether a case falls under the category of ‘rarest of the rare’ crimes. In this case, the appellant (accused) Machchi Singh alongwith some of his accomplices launched attacks in five villages of Punjab following a conflict with one man by the name of Amar Singh. He got Amar Singh’s relatives living in those five villages attacked, as a result of which 17 people died. The Punjab & Haryana High Court sentenced some of the accused to life imprisonment and others to death (including Machchi Singh).Machchi Singh alongwith three other people who were sentenced to death appealed before the Hon’ble Supreme Court of India to reconsider the death penalty awarded to them and to mitigate it to life imprisonment. The Supreme Court held that the act of Machchi Singh and the other three was so cruel and violent that it can only be classified as ‘rarest of the rare’ crime for which only death penalty can be awarded.
Manner in which the crime is committed – The crime should be committed in an extremely brutal manner in which no person having least sense of sympathy would commit it.
- The person who is victimised by the crime – If the crime is committed upon a physically or mentally challenged individual, any weak or old person, a very young child or other such weak or innocuous person, it will fall under the category of ‘rarest of the rare’ crime.
- Number of people victimised by the crime – If a large number of people are killed or affected by the crime, awarding of death penalty is justified. For instance, a bomb blast or ethnic cleansing or other such crime where there are a lot of affected people.
- Reason behind crime is to betray the nation – If the reason behind commission of crime is treason against the country (that is, India), death penalty will be awarded.
In another case of Mithu v. The State of Punjab (1983), the hon’ble Supreme court struck down section 303 of the Indian Penal Code which made death penalty mandatory for murder.
In its 36th report, the Law Commission of India considered the constitutionality of awarding death sentence and made an in-depth study of the pros and cons of awarding capital punishment. After considering all the relevant factors, it recommended that India should continue with capital punishment as it could be risky for the country to abolish it, with so much diversity and vast population and where there is a lot of difference between societal upbringing, education etc. of the people.
However, the 20th law commission (2015), headed by Justice A.P. Shah, recommended that death penalty should be awarded only in case of terrorism and under no other circumstance. It, however, said that it should not be abolished with immediate effect but slowly and gradually so that it comes to a complete end in near future. The commission was of the view that capital punishment did not have deterrent impact and therefore it would be better to abolish it. However, it was needed in cases of terrorism so that there is no threat to the nation with regard to its security and integrity.
Why Should Death Penalty Be Abolished
In the recent years, there is an increase in the number of people demanding to abolish capital punishment. The advocates of this school of thought have put forth various reasons of why capital punishment is not required which are as follows:
It goes against the constitution–Article 21 of the constitution of India guarantees right to life to every citizen of India. Capital punishment violates this right as it takes away the right to live from an individual. The advocates of abolishing death penalty believe that no crime can be so grave as to deny an individual the right to live and following such a practice in itself is inhuman. Also, it takes away from the accused the chance to reform and come out as a better individual.
It is against basic human rights–According to the Universal Declaration of Human Rights adopted by the United Nations, right to life, liberty and security is a fundamental human right which no one has the right to take away. Not just India, but all the countries of the world who have been awarding death penalty do not have the right to take away anyone’s life for any reason whatsoever.
It cannot be reversed once awarded–Capital punishment cannot be reversed by the State or anyone once given. There have been many instances in the USA where innocent people got executed by the State following unfair trials. There is always a risk of executing an innocent person attached to death penalty. This risk is so grave as we can never give back an innocent person his life, or his family the member they lost because of someone’s mistake.
It does not deter crime – Many countries who have not abolished capital punishment have done so to deter other people from committing heinous crimes but there has been no drop in the number of heinous crimes in these countries and there is no data to support the claim that death penalty really deters criminals.
Retribution cannot justify death penalty–There can be no justification for an inhuman and cruel act as death penalty. Revenge for the victim is no justification for awarding of death penalty as it is an outdated thing and we cannot get the victim back by sentencing another person to death.
What can be done instead of awarding capital punishment
The authors agree with the view that there are some crimes which are so grave and heinous that if we let go of the criminal, it might pose a threat to the security of the entire society. Not only this, in some cases the way accused criminals act is so inhuman and beastly that words cannot describe the abhorrence of the act. In Nirbhaya Delhi gangrape case (2012), the rapists went beyond all imagination of beastly behaviour and tortured the victim in a way that even the mention of the act sends chills down the spine. While some people are of the view that death penalty is best suited for such cowards and beasts in the disguise of humans, the authors are of the view that such people, who are unfit to be termed as humans and have no empathy towards any other person whatsoever, should not be killed but should be kept in solitary confinement for their entire lives because death kills a person just once but solitary confinement for life would kill them everyday until death. Imagine being locked in a small room for just a day with no one around, without any person to talk to- real tough? Imagine a person sitting alone for his entire life in a small room – the torture is real, just like the victims would have felt. Also, solitary confinement would be more helpful in making them realise the grave crimes they committed before they die. Moreover, death is an inevitable part of life and the criminals too will have to die one day, so sentencing them to death would only make society free of inhuman criminals but it would fail to make the criminals realise that the acts they committed deserve worse than death.
Why Should Capital Punichment Not Be Abolished
Capital punishment makes sure that people involved in any act of heinous crime like, war, crime, murder, sexual violence, espionage, human trafficking or treason must face the punishment above their heads and make efforts to stop it. Especially today in the time of ‘tit for tat’ scenario, this tough punishment of death penalty stands even more significant because it engages fear among criminals.
“Bad people deserve to suffer.” This is a blunt slogan, but it captures the essence of a deeply familiar notion: people who have committed culpable wrongs deserve their lives to go worse as a result. Why do they deserve it? Perhaps because it’s not fair and justificable for the lives of wrongdoers to go well when the lives of the innocent have gone poorly – punishment levels the playing field. Whatever the reason, “retributivists” – those who believe in and support retribution – argue that the punishment of criminals is intrinsically valuable; it is valuable in and of itself, rather than valuable because of its good consequences (for example, preventing future crime and many such things).
Even if punishing murderers and thieves had no effect on reducing the overall crime rate, retributivists tend to think it’s still the right thing to do. Retributivists also think that the severity of punishment should match the severity of the crime. So, just as it is wrong to over-punish someone (executing someone for stealing a pair of shoes), it cannot be right to under-punish someone (giving him a community service order for murder).
If you are a retributivist, you might support the death penalty because you think that certain or all murderers (and perhaps other criminals) deserve to suffer death for their crimes. Depending on how you think about death, however, you might oppose the death penalty on the grounds and basis that it is disproportionately harsh – perhaps you think that no matter what someone has done, she does not deserve to die for it.
On the other hand, you might oppose the death penalty on the grounds that it is disproportionately light. Many people who opposed the recent death sentence for the Boston bombers did so on the grounds that life in a maximum-security prison would be a worse punishment – and so more fitting – than death.
Death penalty is a just punishment for crimes committed against the rights to life, freedom and safety of people – It is the right of an individual to live and survive peacefully and be free from danger and harm. Unfortunately, heinous crimes like murder, rape and assault are committed by perpetrators who have no regard for life and property of others. Since they violate other people’s lives, it is but fair that they are brought to justice and suffer the fate they rightfully deserve. People who are for capital punishment also talk about free will wherein an individual is given the right to do things in his or her own volition and he or she is responsible for his or her own fate.
It deters would-be criminals to commit felonies- Advocates of death penalty cite examples on how imposing the death sentence or abolishing it have affected crime rate. According to a study conducted in the late 1960’s, there was a 7% increase in crime rate on the years when this law was abolished. On the other hand, fewer crimes were committed with the increase in number of inmates in the death row who were executed each year. Proponents say that these figures clearly indicate the efficacy of capital punishment on deterring crimes.
The absence of death penalty leads to crime rate increase – As reported by time magazine, an estimated 2,000,000 people in the United States have been victims of crimes, from assault to murder. With insufficient laws to address this problem or the lack of teeth in these laws, criminals become careless and bolder to commit heinous crimes because of the leniency and flexibility in punishments and loop holes in the justice system. For these reasons, there is a quintessential need for death penalty.
It is only constitutional and does not violate any rights – The main reason of controversy linked with capital punishment is the pain that the criminal goes through during the process of execution. However, more humane methods have already been adopted to make the process as painless and easy as possible. The pain is almost non-existent as a drug is used to put the criminal in a coma like state before execution. Therefore, no rights are being violated by carrying out capital punishment and it is no form of torture.
Death penalty burdens the government exchequer less as opposed to life imprisonment without parole – Proponents say despite expenses incurred by the government from imposing capital punishment, death penalty is still cheaper compared to the costs of life without parole. Although there is no contention that the cost of the former is high, life imprisonment is accumulatively higher given the expenses for food, health care and other costs of sustaining the lives of incarcerated individuals serving life. The death penalty removes dangerous people like serial killers from society to make it a safer place.
Justice to Masses
Take the latest example of IAS Officer Kinjal Singh. How she fought such a long battle of 31 years to get justice for his father, whose murderers were roaming free. If justice is not provided by the government, innocent people are left hopeless and frustrated. Therefore, for government and law of a nation, the key responsibility is to preserve the rights and freedom of its people. Possibly, capital punishment is the way to go. The death penalty gives the victims family a sense of closure which helps them to get on with their lives.
Unsafe for Fellow Prisoners
A person who has committed some violent crime like murder, you can’t trust his brains and blindly believe in him. Anything can happen to it at any moment. Plus statistics demonstrate that most of such criminals are usually extremely violent in nature. And so, not just public, the criminal is also dangerous to his fellow prisoners. For police and government, it is not a good idea to put the safety of all prisoners under danger.
Capital punishment in Saudi Arabia
Capital punishment is a legal penalty in Saudi Arabia. The country performed at least 158 executions in the year 2015, at least 154 executions in the year 2016, and at least 146 executions in the year 2017.[footnoteRef:5] Death sentences in Saudi Arabia are pronounced almost exclusively based on the system of judicial sentencing discretion (tazir) rather than Sharia-prescribed (hudud) punishments, following the classical principle that hudud penalties should be avoided if possible.[footnoteRef:6] The rise in death sentences during recent decades resulted from a concerted reaction by the government and the courts to a rise of violent crime in the 1970s and paralleled similar developments in the U.S. and China in late 20th century.
Mohammad Kasab’s Case
Mohammad Azmal Amir Kasab, who was a Pakistani national, earned himself five death penalties and equal number of life imprisonments for multiple crimes in the country. Some of the major crimes which he and his associates committed on Indian soil were waging war and committing a murder of number of persons, attempt to murder with common intention, criminal conspiracy, and abetment, abduction for robbery, dacoity with attempt to cause death or grievous hurt and causing explosions.
The case for keeping a terrorist alive after conviction is based on flawed human reasoning. While it is always possible for a terrorist to repent and change his ways, what we have actually seen in the real world is that terrorists are highly motivated and believe in a cause that they think is worth killing for — and dying for, if necessary. This is what makes a terrorist kept alive in prison a greater danger than one sent to the gallows.
The 1999 hijack of Indian Airlines shook the country to a great extent. To end the hijack and secure the release of passengers, we released three terrorists – Maulana Masood Azhar, who later went on to create the anti-India Jaish-e-Mohammed, Ahmed Omar Saeed Sheikh (who kidnapped and killed western journalist Daniel Pearl), and Mushtaq Ahmed Zargar, who was said to be training jehadi elements in Pakistan-Occupied Kashmir. The fact is the hijack was organized precisely to get these terrorists released. The mistake was not just in the handling of the hijack, but in keeping such inhuman people around at all who can destroy anything at anytime.
Keeping terrorists alive is not an act of humanity or rationality for that matter, rather an invitation to further acts of inhumanity by their friends and partners. There is thus a strong case for ensuring quick convictions and awarding them the death penalty and seeking justice.
Thus, whether capital punishment should be abolished or not is an ongoing debate. If death penalty is abolished, people will commit most heinous crimes without any fear of grave punishment. Also, this would encourage other people to commit crimes. But at the same time, if an innocent individual gets killed due to unfair trial, which has happened in few cases, there would be no way to bring that person back to life. Moreover, no one has the right to take some other person’s life under any circumstance whatsoever. Thus, the capital punishment can or cannot be abolished in a country depending upon the situations prevailing in that country.