Abstract 

“Capital Punishment” or “Death Penalty” is the very best degree of punishment offered in any society or democracy to keep regulation and order. But killing every other man or women within side the call of justice is no higher than murdering someone. We ought to awareness on doing away with the crime, now no longer the criminal. China is the handiest use with inside the global in which the exercise of the dying penalty remains at its height with over one thousand executions each year, while in India the doctrine of “Rarest of the Rare” is accompanied and frequently the dying sentence receives commuted to existence imprisonment. But still, India has done a complete of four criminals from the duration of 2002 to 2015. Both the international locations have diverse similarities with inside the technique and regulation of capital punishment, however in China, as soon as the dying penalty is offered it cannot be revoked. This is the cause why United Nation (UN) hostile the idea of the dying penalty and said that “Life is precious, and dying is irrevocable”.

Further UN additionally stated that killing every other man or women with inside the call of justice additionally kills the reality that we are human. We aren't any one to determine who receives to stay and who receives to die. Therefore, in preference to placing someone to dying, we ought to undertake a special technique i.e. the reformative technique in order that one ought to improve himself and might stay peacefully thereafter.

Introduction

Capital Punishment refers to execution of a lawbreaker. It is also termed as death penalty where one is condemned to death for an unlawful act after conviction by a court of law. It is the practice of executing someone as a punishment for a specific crime after a proper judicial trial. However, the practice of capital punishment can only be exercised by a state, only then it is considered as a constitutional practice and not unlawful. But when non-state organizations claim of having 'executed' a person they have indeed committed a murder. Death penalty is not a recent phenomenon. It has existed in numerous societies since ancient times.

Etymologically, the term capital is derived from Latin word caput meaning "head" which describes execution by beheading, but executions are carried out by many methods including hanging, shooting, lethal injection, stoning, electrocution and gassing (1). Capital Punishment comes within the purview of deterrent theory of punishment. Deterrent theory of punishment seeks dreadful consequences for the wrongdoer. The theory expounds punitive actions must be taken against the convict in order to deter the criminals from committing the crime again and also to set an example for the society. The aim of capital punishment is to discourage individuals from adopting an illegal path. It also seeks to induce fear in mind of others by effectuating exemplary punishment on wrongdoers.

Many studies advocate that death penalty breaches human rights, specifically the right to life and the right to live free from brutality or torture and protection against savage or degrading treatment or punishment. On many instances, it was observed that death penalty actually leads to miscarriage of justice as it has taken away lives of many innocent humans as well. However, Proponents of capital punishment advocate that imposing death penalty on criminals goes a long way in deterring crime and prevents the offender from committing the crime again. Therefore, it must be implemented with the utmost caution by the state if at all it is exercised. The punishment is irreversible and so are its consequences.  

Development of Capital Punishment

Many historical documents and various ancient tribal practices show that the practice of capital punishment was a part of their judicial machinery. During the prehistoric times the execution of death penalty ordinarily involved torture with cruel and painful methods. Several brutish and barbaric methods were adopted to exercise death penalty upon offenders including boiling alive, hanging, burning at stake, death by thousand cuts, blowing from a cannon, sawing the convict, etc. These were the formal methods of execution of capital punishment. In the medieval period, capital punishment was also implemented as a generalized method of punishment even for petty offences. Under some dynasties when a criminal was convicted, the executioners were required box the head of the offender and send it to the monarch as a proof that the execution has been carried out. In the Draconian Code of Athens, capital punishment was made mandatory for all types of crime. According to Plato, whose writings inspired the middle Ages, capital punishment was required and he regarded it as a medium of purification.

Evolution of Capital Punishment

With developing times and because of the usher of modern philosophical theory, the methods of capital punishment have changed. Due to extensive advocacy of human and civil rights, the crimes that permit capital punishment have also been delimited. In the early modern period to the nineteenth century, a noteworthy reform was witnessed in the form of executions and the punishments that were imposed upon the criminals. The violent repressive system was transformed into a system of subtle and sustained control which recognized punishment as a reformative medium instead of a deterrent tool. In most of the countries that still practice capital punishment, it is restrained for very heinous and reprehensible crimes only. Some of these crimes include murder, terrorism, rape, sodomy, war crimes, treason, mutiny, etc. In some countries, death penalty is also imposed for financial crimes like corruption. Illegal smuggling of drugs is also considered a capital offence in numerous countries. Earlier capital punishment was exercised by monarchs or even modern states to showcase the authority that they possessed however during the eighteenth century the aim of the modern states changed from exhibiting their dominance to punishing and preventing crime. Thus, a gradual transformation was also witnessed in the ideology for implementing death penalty. 

Capital Punishment in Indian Law

Most nations, including almost all First World nations, have abolished capital punishment either in law or in practice. However, India remains an exception to it. Implementation of death penalty as a judicial punishment in India is still prevalent. The most recent executions in India took place in March 2020, when the four men convicted of the gang rape and murder of Jyoti Singh in Delhi in December 2012 were hanged in the Tihar Prison Complex in Delhi (2). As per a provision in the Code of Criminal Procedure (CrPC), 1898 death was prescribed as the default punishment for offence of murder. However, this norm was changed in 1973 when the CrPC was amended which stated that the punishment for murder was life imprisonment and capital punishment was to be imposed only in exceptional cases. The Indian Penal Code (IPC) 1860 authorizes capital punishment for several crimes, mainly treason, murder, mutiny, rape.

Section 121 in IPC- According to this section, Whoever, wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine (3).

Section 132 in IPC- As per this section, whoever abets the committing of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India, shall, if mutiny be committed in consequence of that abetment, be punished with death or with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine (4).

Section 302 in IPC- Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine (5).

Death Penalty for rape- Section 376A of IPC deals with rape and injury which causes death or leaves women in a persistent vegetative state; 376AB of IPC dealing with rape of a child below 12 years; 376DB of IPC deals with gang rape of a child below 12 years of age; 376E of IPC which includes certain repeat offences in the context of rape. All the above sections prescribe death penalty if a man is convicted for the offence of rape.

The Indian Penal Code also imposes the death penalty on those committing the offence of giving or fabricating false evidence with the intent to procure a conviction of a capital offence under section 194 of IPC and also for threatening or inducing any person to false evidence resulting in the conviction and death of an innocent person as per section 195A of IPC.

Article 14 and 21 of the Indian Constitution protect individuals from unfair execution. It prohibits any unlawful act that may endanger the life of an innocent citizen. Article 14 stipulates that ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India and prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.’ Article 21 guarantees that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.’

Important Judgements concerning Capital Punishment

Jagmohan Singh v. State of U.P, October 1972- It was the first case that dealt with the constitutional validity of capital punishment in India and specifically the reasonableness of imposing death penalty for murder under section 302 of IPC. It was disputed that death penalty violates the fundamental right of life and personal liberty as guaranteed under Article 21 of the Indian Constitution. It was also reasoned that there was no fixed systematic principle that regulated the discretion of the judges while imposing death penalty. Nonetheless, the five-judge bench of Supreme Court upheld the constitutionality of death penalty, but it delivered an important judgement that death penalty is not the rule and the court shall impose it only in exceptional cases.

Rajendra Prasad v. State of Uttar Pradesh, February 1979- In this case, it was pronounced that death penalty shall be given only for special reasons but there was a lot of ambiguity concerning the term ‘special reasons’ as there was no precise definition of it. Thus, in this case the court tried to curb the vagueness by stating that while imposing death penalty, apart from the crime external factors must also be taken into account. It was affirmed by the court that ‘special reasons necessary for imposing death penalty must relate, not to the crime as such but to the criminal.’

Bachan Singh v. State of Punjab, May 1980- In this case, capital punishment was challenged on the ground that it was unnecessary, cruel, inhumane and degrading. The arbitrariness under Sec. 302 of IPC (6) and Sec. 366(2) of CrPC (7) was also challenged in this case. However, the Supreme Court did not accept these arguments and pronounced the constitutional validity of capital punishment. But it was in this case that the doctrine of ‘rarest of rare’ was declared by the court. According to this doctrine, death penalty must be imposed only in rarest of rare cases where all the other alternatives are exhausted. It was also set forth that factor such as the mental state, the age of the convict, the chances of reforming must also be given due consideration. The judges were allowed absolute discretion in imposing death sentence however fair attention must be given to aggravating and mitigating circumstances. 

In August 1982, Justice Bhagwati in a dissenting opinion to the judgement given in Bachan Singh v. State of Punjab, 1982 3 SCC 24 expressed that death penalty is arbitrary and violates Article 14 (8)  and 21 (9)  of the Indian Constitution.

Mithu v. State of Punjab, April 1983- Section 303 of the IPC affirms that death penalty must be mandatorily imposed if an individual being under life sentence commits murder. But the Supreme Court held that compulsory death sentence was contradictory to the fundamental rights ensured in Article 14 and Article 21 I.e., right to equality and right to life and personal liberty respectively.  

Comparative Analysis with other countries

Position in the United States

Capital punishment is a legitimate method of punishment in 27 out of the 50 American states. However, the only crime that is punishable by death in these states is first degree murder. United States was the first to institute lethal injection as a method of execution. In Furman v. Georgia 1972, the U.S. Supreme Court struck down capital punishment reducing all death sentences pending at the time to life imprisonment (10). However, the judgement did not declare death penalty as unconstitutional. In order to reduce the ambiguity, the U.S. Supreme court in the Gregg v. Georgia 1976 proclaimed the legality of capital punishment. 

Position in the United Kingdom

The United Kingdom is not untouched by the incidents of capital punishment imposed on its citizens. In 18th century, the system of crimes in England was called the ‘Bloody Code’ because it included 220 offenses which were punishable by death. Death penalty as a constitutional form of punishment existed in United Kingdom since ancient times for heinous crimes till the second half of the 20th century. However, in 2004 it was completely abolished by the 13th Protocol to the European Convention on Human Rights. The convention prohibited UK from restoring death penalty as long as it is a party to the convention. The last execution in England was carried out in August 1964 (11).  

Position in China

Capital Punishment is a legal practice in China. Most of the executions are undertaken for murder and drug trafficking. Execution by lethal injection and gunshot is most commonly carried out. One study reveals that China imposes ampler number of death penalties than all other countries combined. The system of Chinese death penalty has been criticized several times due to the broad application of capital offenses in the country. The legal machinery in China expounds the retributive theory of punishment which is a prime reason for the higher rate of execution. 

Conclusion

Capital punishment is the most controversial penal practice in the modern world. Death penalty is kind of a warning punishment that reminds people not to endanger the rights of other people. Capital punishment proves to be an effective ‘kill one warn all’ approach in law enforcement nonetheless its effect is limited as it kills the criminal, not the crime. It might help in reducing crime, but it has irreversible effects as there is a probability that innocent people will be executed and there is no possible way of compensating them. Death penalty also takes massive mental toll on the families of the convict. Capital punishment has been condemned as cruel and inhumane which ultimately leads to miscarriage of justice. Numerous studies have shown that capital punishment exerts no significant effect on the rate of crime. Death penalty also promotes violence in society as opposed to deterring it.

However, advocates of capital punishment argue that a rational person will avoid committing crime if severity of punishment outweighs the illegal conduct. Many countries have abolished death penalty as they are of the opinion that it is a crime in itself on the contrary several nations recognize it as a way of terminating reprehensible crimes. The exponents of capital punishment have opined that a punishment is just if it recognizes the seriousness of the crime. Thus, capital punishment for nefarious and diabolical acts is justified. Death penalty permanently eliminates the criminals from the society making it a safer place for innocent civilians. 

Suggestion 

As long as members of society hold the perspective that death penalty is justified in a way, abolishing it completely would not be a feasible recourse. Thus, before amending the legal framework, a change in the social system is more desirable. However, a viable option would be before imposing death penalty, the courts should carefully examine the facts and the circumstances and leave no room for possibility of error. If a question of benefit of doubt arises then, it must be given to the convict and an alternative form of punishment must be awarded to him. The doctrine of ‘rarest of rare’ that is prevalent in India keeps a check on the rate of execution thus it must be continued as long as capital punishment exists in the country. Life imprisonment without acquittal is a suitable alternative to death penalty. But until and unless a systematic remedy is developed, eliminating capital punishment does not seem expedient. 

Bibliography

Websites referred:

• www.indiakanoon.org
• www.scconline.com
• www.elsevier.com
• mumbaimirror.indiatimes.com 

Books referred:

• Kronenwetter, Michael- Capital Punishment: A Reference Handbook: 2nd edition, 2001

1. Kronenwetter 2001, p. 202
2. Nirbhaya Rape Case Hanging: Everything you need to know". Mumbai Mirror. 20 March 2020.
3. Section 121 in The Indian Penal Code
4. Section 132 in IPC
5. Section 302 in IPC
6. Punishment for murder- Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
7. The Court passing the sentence shall commit the convicted person to jail custody under a warrant.
8. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
9. No person shall be deprived of his life or personal liberty except according to procedure established by law
10. Barry Latzer (2010), Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment, Elsevier, p.37.
11. "Last executions in the UK". Stephen-stratford.com