INTRODUCTION

Capital punishment is a kind of a punishment in which a convict is executed after due process. The Indian penal code has eleven sections dealing with capital offences, including section 121, which states that treason can be punished by death. It is also a criminal offence to wage war against the Indian government. The subsequent sections of the IPC likewise discuss similar capital offences and the punishments that are specified. The army act of 1950, the commission of sati (prevention) act of 1987, and the unlawful activities prevention act of 1967 are only a few examples of legislation that can be charged with capital punishment. Every punishment in the world, including capital punishment, has a purpose. The first belief is that the individual who commits a crime for which capital punishment is imposed should suffer; the second belief is that capital punishment should serve as a deterrent to crime and that people should refrain from committing such crimes.

Capital punishment is not a new concept for humans; it has been sanctioned throughout history. Capital punishment was imposed in ancient Greece under the rules of Draco in the 7th century bc for offences such as purposefully killing someone, purposely setting fire to one’s property, rape, and betraying one’s own country by casting away the government or sovereign. Every country has executed a person at least once in its history. Plato stated that capital punishment should be reserved for habitual criminals and not for all criminals, but this was not followed. Ordinary offences are not subject to capital punishment; only great, horrible, or disgusting acts against society or humanity are.

There are advantages and disadvantages to capital punishment; it would serve as a safety net for the public since offenders would be fearful of such a severe punishment. The person who defies the law and commits such serious crimes as murder, rape, or treason will be punished with capital punishment. However, statistical facts and records from sources show that capital punishment is not serving as a deterrent in India, and that as a result, more and more crimes are being committed. Furthermore, capital punishment implies the end of life for the criminal, and the criminal will have no additional opportunities to repent for his or her actions; they may be rehabilitated, but fatal punishment removes all of the convict’s rights. When a so-called criminal by the court turns out to be innocent, capital punishment becomes more dangerous. Many modern countries have already banned death punishments, believing it to be a grave violation of human rights.

Various resolutions have been issued by the United Nations and other international bodies to end capital punishment, such as the ICCPR, CRC, and CIDT. There is no evidence that countries that have abolished the death punishment have lower crime rates; there are countries where capital punishment is still used as a deterrent to crime. The rarest of the rare case concept is followed in India, and the Supreme Court has established rules and two questions that the bench must answer before ordering capital punishment. According to Article 21 of the Indian constitution, which deals with the protection of life and personal liberty, the right to life can be taken away if done in accordance with due process of law, and thus the supreme court in jagmohan singh v. State of up, air 1973 SC 947, stated that capital punishment is in line with constitutional powers. Whether or not capital punishment is effective, it is guided by a number of factors, including the proper application of the law, a faster judicial process, and legal understanding.

Capital punishment is considered as a state directed penalty and not as an individual revenge system, however it is not a new punishment in the globe; all existing countries have inflicted executions. If a person harms another person’s eye, the victim cannot harm the offender’s eye without being a state. If this principle of harming one eye for the sake of another eye is followed, there will come a day when no one will have an eye to see. This is the case with punishment when victims start to revenge. Anyhow observing to the capital punishment, if someone commits rape, that person is not raped in return, therefore murder or even the capital punishment in India, would be like killing for the sake of killing, rather it would be judicial murder. As a result, there are numerous downsides to capital punishment for India and it should be abolished.

CAPITAL PUNISHMENT

Capital punishment is when a person is sentenced to death by hanging after being found guilty of a criminal offence. The terms capital punishment, extrajudicial executions, and death punishment are all used interchangeably but are not synonymous. Extrajudicial executions are carried out without due process of law, and the death punishment does not always imply the convict’s execution; it can also mean life imprisonment until death. The idea underneath instituting any punishment for criminal acts.

• Firstly, the punishment should act as a deterrent to crime and other people should be aware of the situation, after which one could end up in the hands of the judiciary.
• Secondly, the criminal should be punished because whatever the act committed was not legal.

Capital punishment is similar to other forms of punishment for criminals. In legal areas such as criminology and jurisprudence, capital punishment is defined as a death sentence.

CAPITAL PUNISHMENT IN INDIA

Before independence, Indians attempted to abolish the death punishment in the British India legislative assembly, but the motion was defeated after sir john thorne, and then home minister of British India, responded, “the British Indian government does not believe the idea of abolishing the death punishment is wise for any type of crime for which the death punishment is provided as a punishment.” However, the Indian penal code has retained the death punishment. The CR.P.C, 1898, made certain adjustments; whenever a jury imposed the death punishment, if the convict was not sentenced to death, the jury was required to record the reasons for their decision. Since section 367(5) of the CR.P.C 1898 was  repealed by parliament in 1955, judges were no longer compelled to disclose specific reasons why they did not issue the death punishment.

Why was the death punishment not imposed in 1898? They were to give special justifications. Even yet, in 1973, if the bench imposed the death punishment, the judges were forced to disclose specific reasons for their decision; this action by the Indian government suggests that the government was more aggressive in its efforts to reduce the severity of capital punishment in India. CR.P.C was also amended by the Indian government. Unless he did not follow the provisions of section 360, the judge could hold a post-conviction hearing for the accused.

MERITS AND DEMERITS OF CAPITAL PUNISHMENT

One of the fundamental reasons of imposing punishment, as discussed in the first part, is to prevent criminal behaviour. Petty crimes such as robbery, beating, and so forth are not punishable by death. However, it is reserved for acts that disrupt and harm the entire society, and for which the harshest or most severe sanctions, such as capital punishment or the death sentence, are used to discourage the perpetrator. Rape, murder, terrorism, and other horrible atrocities come to mind.

The summit or highest level of the punishment chart is capital punishment. It will deter such heinous actions. Because this is not a common type of punishment, it is reserved for criminals who have no chance of rehabilitation, and capital punishment for such heinous crimes will serve as a safety tool for a society in which people believe they are in a secure environment, and such punishments are necessary to make people feel safe. Capital punishment is both a punishment and a means for bringing criminals to justice.

These types of punishment will ensure that the person who commits such crimes will not be spared and will not be able to flee from the law. This punishment would ensure that the culprit would not be able to flee the law for such heinous actions. Everyone values their life; capital punishment will instil dread in the minds of those who wish to perpetrate such acts.

The fundamental argument for keeping the death punishment is that it acts as a deterrent to crime, yet there is an irony here. Uttar Pradesh has the highest number of executions in India, yet the state has also seen an increase in crime since the time when more executions were carried out. In 2018, 354 individuals were executed in Uttar Pradesh, with 90 in Haryana and 735 in Madhya Pradesh. In Uttar Pradesh, there has been a 66% increase in crimes against women. As a result of this report, capital punishment no longer serves as a deterrence in India.

It is not necessary that the individual who commits the offence is a repeat offender or criminal; it could be someone who is committing the act for the first time. When it comes to habitual criminals, there is no prospect of them being spared or being rehabilitated, however when it comes to non-habitual offenders, there is a chance of being rehabilitated, but when capital punishment is imposed, there is very little likelihood of being pardoned. An individual has the right to seek rehabilitation, yet this punishment is a clear violation of that right.

There is also the danger of a miscarriage of justice when capital punishment is administered. This is a punishment; once someone is executed, they cannot be brought back to life. There have been situations where the chances of an innocent person being executed by due process of law were extremely high. The Carlos deluna case in the United States of America was an example of an innocent person being executed. There is no way to backtrack on the decision.

Comparing countries

When it comes to capital punishment, the world is divided into four categories.

1. Countries that have abolished capital punishment for all crimes.
2. Countries in which capital punishment is only applied to minor offences.
3. Countries that continue to use the death punishment.
4. Countries that have legalised capital punishment but do not carry it out.

At the end of 2014, 58 nations still practised capital punishment, 98 countries had abolished it, 35 were de facto abolitionists, and seven countries had abolished capital punishment for non-violent offences. According to statistics, there are more countries where capital punishment is not considered an appropriate method of punishment.

Observing in this the international scenario

The United Nations general assembly urged member countries to eliminate capital punishment in 2007. In the years 2008, 2010, 2012, and 2014, the United Nations general assembly issued several resolutions in which 117 countries voted in favour of abolishing death punishment. The UN passes such resolutions to ensure respect for human dignity, which allows for the progressive development of human rights. Several international treaties have been signed to abolish or limit capital punishment, including the international covenant on civil and political rights, the convention on the rights of the child, the torture convention, and the convention against cruel, inhuman, or degrading treatment or punishment.

Every country on the planet has bilateral extradition treaties in place. In these treaties, countries who favour the abolition of capital punishment demand that the country requesting extradition not impose the death punishment, and then a special phrase is placed in bilateral extradition treaties. Treaties must be signed and ratified in accordance with international law. Ratification of the instrument is not required. Once a member nation has ratified the treaty, that country will be bound by the document’s terms to refrain and so on.

Even if the country has not ratified the document, they should refrain from doing or committing the act if it is signed. In the case of capital punishment, member countries that have ratified the above-mentioned agreement or treaties must abstain from carrying it out altogether. The country should refrain from inflicting capital punishment if the treaty is only signed, not ratified; otherwise, the treaty's objectives and purpose would be defeated. Sanctions are placed on countries that do not follow the rules laid out in the document. In 2020, there will be a 36 percent decline in capital sentences compared to 2019, when 2307 executions were carried out, but only 1477 in 2019.

China is regarded as the world leader in executions. Reports on capital punishment in china are not available because it is considered a state secret, and figures are not generally released to the public, but it is estimated that thousands of people have been executed in china. As of 2020, 108 countries have abolished the death punishment in practise or legislation, and 144 countries have abolished the death punishment in law. According to an amnesty international assessment on the death punishment in the Americas, only two countries, the United States of America and Trinidad and Tobago, have used the death sentence.

Six countries in the Asia-pacific area carried out executions: India, Taiwan, North-Korea, Bangladesh, china, and Vietnam, but the number of executions was half that of 2019, when 1227 were carried out. No country in Europe or central Asia has implemented capital punishment. Although the capital punishment has been reduced by 25% in the Middle East and North Africa, Oman and Qatar have carried out their first executions. Only 16 executions were carried out in the sub-Saharan African region, but the number of death sentences commuted increased by 87 percent in 2020 compared to 2019, from 165 to 309.

In India, the rarest of the rare case doctrine is applied to capital punishment. This doctrine of the rarest of the rare cases was established by the Supreme Court in the landmark case of bachan singh v. The state of Punjab, air 1980 SC 898. The Supreme Court stated that whenever there is a choice for lethal punishment other than life imprisonment, the supreme court of indie’s guidelines state that capital punishment should only be used when life imprisonment is clearly precluded.

The court has complete discretion when it comes to the death punishment, but before imposing it or making a decision, the bench must consider the aggravating and mitigating elements of the case, which is similar to producing a balance sheet. The court should determine whether any other sentence for the defendant, if given, would be sufficient to ensure justice. The court stated that there are two key considerations that judges should consider when imposing the death punishment:

1. One is to determine whether there is something unusual about the conduct.
2. Whether life imprisonment would be appropriate for such serious offences.

The second question that should be addressed is whether the court will do everything possible to reduce the chances of the criminal receiving the death punishment. If there is no other option, the court should award the criminal the death punishment or capital punishment in order to serve justice. Even now, in India, the concept of the rarest of the rare instance is observed, and as a result, there are fewer executions and courts prefer other punishments.

Countries retaining & abolished capital punishment

The academic scholars compare two sets of countries in order to determine the benefits and drawbacks of capital punishment. The researcher chose Germany and turkey from the group of nations that have completely abolished capital punishment to compare to countries like India and Saudi Arabia, which have retained capital punishment.

Observing Germany and India

Germany abolished the death punishment in 1949 by amending its national constitution. Capital punishment has been banned in all European countries. The death punishment is still used in India, as it was during the British raj. Germany has a crime rate of 36.63, which is very low, whereas India has a crime rate of 46.78, which is moderate. In terms of safety, Germany receives a 63.64, whereas India receives a 55.40. Crimes are punished, and India, which keeps the most severe form of punishment, scores far lower than Germany, which does not have capital punishment. These figures show that capital punishment is no longer necessary to punish criminals, and that a new punishment can be implemented instead.

Observing Saudi Arabia and Turkey

Turkey repealed capital punishment from its constitution on May 7th on 2004. Saudi Arabia is a supporter of capital punishment, although its crime rate is only 19.08 percent, which is quite low when compared to turkey’s rate of 40.94 percent. Saudi Arabia has a score of 75.28 in terms of safety, whereas turkey has a score of 60.33. According to these figures, rules in Saudi Arabia are applied on a large scale in comparison to turkey, which could explain the low crime rate. This means that when the government efficiently implements the law, the criminal justice system becomes stronger and helps to minimise crime in society.

According to the comparative study, the outcomes in both scenarios of comparison are completely different. Many other factors play a role in the rise or fall of crime rates. Education, addictions such as narcotics, people’s economic circumstances, the community, and peers all have an impact on an individual’s mind. Economy of Saudi Arabia is flourishing. As of 2020, world bank report, Saudi Arabia has a per capita income of 47,790 PPP dollars where there is no alcohol usage and where there is only a small population, indie’s GDP per capita is 1,900 USD, it ranks 101st in terms of alcohol use, and its population is larger.

Capital punishment as deterrent in India

Even though most modern countries have eliminated capital punishment, India does not. As is well known, capital punishment is reserved for the most heinous crimes, such as murdering a woman or child in a gang, waging war against the government, raising a mutiny, and so on. These are the most dangerous crimes, and if a person commits them, capital punishment is the most appropriate way to punish them; otherwise, the person will escape with lesser punishments, rendering the law ineffective. The topic of whether the death punishment or capital punishment is constitutionally valid as per Indian constitution should be raised.

The constitutionality of the death punishment was challenged in the Supreme Court case jagmohan singh v. State of up, air 1973 SC 947. The Supreme Court dismissed the appeal and stated that deprivation of life under Article 21 of the constitution is constitutionally permissible if done in accordance with due process of law. As a result, the court stated that the death punishment is applied in India in accordance with the CR.P.C and the Indian evidence act, and that this is due process of law, and that life can be taken away under Article 21. The Supreme Court has also ruled that the death sentence is constitutionally admissible and valid in the cases of bachan Singh v. The state of Punjab, air 1980 SC 898 and rajendra Prasad v state of Uttar Pradesh, air 1979 SC 916.

In according to statistics, India has carried out 720 executions since independence. Death punishment was prescribed as a punishment for murders in IPC 1860, and since 2013, death punishment has been prescribed for rapes in IPC 376a. However, as the punishments became more stringent, the number of murders and crimes increased, defeating the idea of capital punishment as a deterrent for crimes. In the year 2012, 43,355 people were murdered in India, resulting in an alarming homicide rate of 4.5 percent per lakh population. According to data, 3,59,693 rape incidents have been reported in India, an alarming increase despite the harshest punishments set for such crimes.

These statistics clearly show that capital punishment in indie is not a deterrent to crime. As a result, India should not consider capital punishment as a punishment for these crimes and should instead consider other types of punishment that will actually deter crime.

Abolition of capital punishment

The question that all countries must consider when weighing the benefits and drawbacks of capital punishment is whether the capital punishment should be abolished? The majority of countries support the abolition of the death penalty. Countries which are reluctant to abolish capital punishment give reasons like it is the law, criminals should be punished strictly for the crimes etc. As compared to the data of different countries in which capital punishment is active crimes are high for some and for some nations crimes are less like Saudi Arabia where the other factors like brotherhood and religion is widely streamed then the execution of law makes a big difference. But according to the majority of nations capital punishment infringes on the rights of individuals and this is not moral according to their aspect of society. Terrorists, for example, take people’s lives very easily. There have been instances where terrorist attacks have been more horrific, such as the taj hotel attack in Mumbai, where Ajmal kasab was present, and it was done in a more terrible way, killing thousands of people. And violates individual human rights

Rather than treating this type of punishment as a flaw in the judiciary, the punishment could be made more harmful to the criminal, such as keeping the criminal in prison, adopting ways in which the punishment functions as a deterrence, adopting recreational activities for the criminal, and so on. When a punishment is delivered, it should instil terror in others who attempt to carry out criminal activities rather than putting the culprit to death. Every year on the 10th of October, a day is marked to call for the abolition of capital punishment and to raise public awareness about the conditions and circumstances that affect those who are sentenced to death.

Killing a person is considered a murder; but, when a person is killed in accordance with the law, it is deemed murder or killing people legitimately. The last execution in India occurred in 2020 in the case famously known as Nirbhaya gang-rape case. The name of the case is vinay sharma v. The union of India, 2020, the tragic and brutal disaster occurred on a bus in Delhi’s chilly weather. Six people are guilty of viciously rapping the girl, which was also resulted in her here death. She was also pushed naked to the road after an iron rod was forced into her private parts. Her death was the result of her physical and emotional suffering.

If capital punishment serves as a deterrent to rapes, then, according to the facts presented above, an increasing number of rapes have occurred, with no death sentence being applied to any of them. Rape is considered as the fourth most crime against women in India. Today the world is advancing and is popularly known as constitutional society by educated beings and in this type of society such punishments like capital punishment should not be practiced as it is not deterrent up to the facts in this present scenario but should resort to other punishments.

According to NCRB data, 121 people were sentenced to death in India in 2019, with 68 of those sentences being commuted to life imprisonment. For the government, life imprisonment sounds better than the death punishment in India. The government claims that only 55 offenders have been executed in India, however the people’s union for democratic rights claims that in just a decade, 1,422 people have been executed (1953-1964). The date of the executions is unknown to the government. More people have been executed, according to the PUDR data, although the crime rate has not dropped over time. The courts have complete authority over the sentencing. From January 1, 2000, to June 30, 2015, the Supreme Court imposed 60 death sentences, but the court conceded that 15 of the 60 sentences were incorrect, this is particularly heinous because it results in the death of an innocent person.

Several circumstances contribute to the SC’s error, including police personnel failing to conduct a reasonable investigation, threats to witnesses from persons with more political and economic power, and no active engagement of advocates appointed by the court to provide legal aid to offenders. Apart from these points of view, the death punishment costs the state more than non-capital cases. The state pays for everything using taxpayers’ hard-earned money. To begin:

1. The court must appoint an advocate to represent the convicts and then pay the advocate’s fees
2. The trial in death punishment cases is not short, but should be lengthy, as it involves numerous procedures to be followed, such as conducting investigations, forensic reports, and medical examinations.
3. A jury cannot be assigned to pass the punishment; instead, a more experienced bench with a good understanding of the death punishment is required due to their expertise and wisdom of knowledge.
4. The convict must be held in solitary confinement until his or her guilt is proven and upkeep charges must be paid since human rights cannot be infringed, and the convict must be kept safe until guilt is confirmed in a court of law.
5. Criminals have the opportunity to seek pardons from the president of India under Article 72 and the governor of India under Article 161 of the Indian constitution. It is known as executive clemency powers, in which these individuals have the authority to give pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentences of any person convicted of any offence, so increasing the financial burden.

CONCLUSION

After rigorously studying all of the documents given, this Article concludes in compared to other nations, the capital punishment should be abolished in India as the deterrence rate seems not positive as in the country like Saudi Arabia and other. From this study we could realise that there are more disadvantages to capital punishment in India, yet crime rates are lower in other nations where capital punishment is preserved due to stricter regulations and other considerations. Furthermore, conferring to the statistics data given, capital punishment is ineffective in discouraging crime and violates individual human rights, thus it should be eliminated. From all the research, the researcher has concluded that a criminal’s rights exist even after he or she has been found guilty. Rather than implementing death punishment, the state could use alternative means such as life imprisonment, rehabilitation, preventative detention, and releasing the criminal after a period of imprisonment with restrictions. As a result, capital punishment should be abolished, and the state should properly implement the law in order to create a better society free of such cruel punishments.

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