Capital Punishments.

This article is written by Presha Naik, a student from, S.N.D.T. Law College, Mumbai. The following article is about the Death sentence or Capital Punishments given to the accused person and that should this type of punishments still be given to the accused persons in case of serious criminal offences committed? The article also talks about the constitutional validity of the capital punishments and crimes in India which are related to it.

CAPITAL PUNISHMENT

Etymologically, the word capital mean (capital-capos: head) the word capital when break down it has arrived from the Greek word capos which means head. The punishments of Beheading someone who is convicted for some serious offences in earlier years, is what is now called as capital punishments. Which is related to head. Some countries see it as a wild punishment according to their law systems, so they had outlawed it. On the contrary, many countries like China, Singapore, India, U.A.E., Saudi Arabia, and many other countries still have Capital Punishments in their legal system as convictions for some really serious offences which are gravest in nature or too extreme in nature which will have an adverse effect on the society and people in the country as well.

Capital Punishments is a state-sanctioned punishment imposed on a person who has done a serious crime. The sentence to order the death penalty is called as death sentence and the carrying over such an act is called as execution.

A prisoner awaiting for their execution is called as ‘on death rows’. Death penalty is only awarded in a very serious crimes which are against the humanity, is too shocking for the community as a whole or also for leaving a very bad influence on the society or general public.

Death Penalty is usually awarded for in crimes such as:

• Genocide
• Child rape
• Sexual abuse
• Child abuse
• Recidivism
• Overthrowing the government (as in some acts)
• Terrorism
• Aggravated in cases of rape
• Air-hijacking
• Drug trafficking
• Possession of drugs
• Drug dealing.

The awarding of the death penalty was controversial in many cases in many countries. Too many countries have abolished the practice of death penalty claiming it too harsh of too inhuman practice. Still some countries have this practice in their law system as such in our India also, in due cases were taking in consideration of the seriousness of the crime the death penalty is been then awarded.

Looking into its history, we can see that many countries through centuries had the death penalty punishments.

CONSTITUTIONAL VALIDITY

• Speaking about the constitutional validity of the death sentence several questions has been raised before the courts regarding the matter especially in the Supreme Court.
• Articles involved in here is- Article 14, Article 19, and Article21.
• Article 19 deals with various kinds of freedom and the enjoyment that citizens can have under this Article. The Article 19 do not talk about the right to live directly.
• There was a case Jagmohan Singh vs. The State of U.P in which the appellant was convicted of murder and he and one more of his partner were given the death sentence. Over here, it was argued on the side of the accused party, that the right to live is the basic enjoyment of all the freedoms and that passing such a law denies it, unless other than such is in either reasonable and in public interest.
• The court’s response to the abovesaid argument was, that assuming that the above argument is correct as prescribed under section 302 of the Indian Penal Code, for conviction the said argument passes the test. Also, herein, the 35^th Law Commission’s Report retains that even if the death sentence is given it thus will be difficult to find out that a capital sentence as such is whether an unreasonable or not or is in public interest.
• There are many safeguards’ procedures for the accused under the Criminal Procedure of Code (CrPC).
• It was further argued about the constitutional validity of about the death sentence, that awarding a death sentence and its procedure is laid down under the CrPC but it is which is limited to only to the finding of the accused as guilty, no procedure is further laid down of what next to be done after found guilty in the offence of murder, thus making it crucial for by the Judge to whether to award capital sentence or life imprisonment.
• The court rejected this argument holding on that, the court takes into the consideration all the facts and circumstances brought during the trail of the accused. The judge balances all the mitigating facts and circumstances of the case and thus further records it in writing. The court thus can’t lay down standard through legislation in this regard.
• It was in various other cases as such where the question arose about the constitutional validity about the death sentence, as in Rajendra Prasad and Jagmohan cases, it was decided that even if the accused after found guilty of death sentence deprives various of his right to live and other fundamental rights but for such cases where question arises about the constitutionality of the said it can be further referred to under Articles 14, 19 & 21.
• Basically, for an offence of murder the ordinary punishment is death sentence but death sentence should be imposed if only to the following three reasons is to be considered public interest, social defence and in public order.

CASES RELATED TO THE DEATH SENTENCE

• Macchi Singh vs. State of Punjab- The Supreme Court in here case held that the death penalty need not to be inflict other than the ‘gravest of cases of extreme culpability’.
• The court upheld in here that the death sentence is only imposed when life imprisonment appears to be absolutely an inadequate punishment having regards to any of the relevant circumstances or facts of crime.
• In Attorney General vs. Lachma Devi, the court held that public hangings are barbaric actions which will have adverse and wild and bad effects on the society and it clearly contravenes the Article 21 protection to personal rights and liberty. And that such acts are very centuries ago and the barbaric acts should not be visited with a barbaric penalty or like public hanging. If any jail under any state exercises such humiliating act like public hangings would be held unconstitutional, invalid and most of void as well.
• Allaudin Mian vs. State of Bihar the Supreme Court held that only if the act of crime is in such a nature which is diabolic and too shocking for the whole community a death sentence would be the awarded.

CAPITAL CRIMES

• Crimes against humanity– Under this Genocide is one of the crimes which is against the humanity. Many cases in India are of serious offences which is at too extreme in nature and against humanity in which Nirbhaya case of Delhi can be included as one of them, where death penalty is the only remedy that can be given according to the law to the person to whom the crime was done and in such cases no human rights of the person held guilty can be attracted as per provisions under Articles 14, 19 and 21. He cant take the support of any articles under Articles 14, 19 and 21 as such and fundamental rights. Because the crime committed is too extreme to be take the support of any abovesaid articles. But the current International Criminal Court does not use death penalty or capital punishments for punishing the criminal. The maximum penalty given under this Court is life-imprisonment.
• Murder– intentional homicide means committing the murder with intention to do so is punishable by giving death sentences in many countries but it should also involve some factors which adds up to the serious consequences of the crime committed by the person. Some countries like Singapore, Malaysia have death penalty for crimes committed like Murder. But in 2013 Singapore changed its laws regarding the capital punishments to reserve it as the compulsory death sentence intentionally committing the murder alternatively while giving life-imprisonment also.
• Drug trafficking– Almost 35 countries in the World had have death penalty for offences related to drugs and drug trafficking. In many Asian countries the punishments for drug trafficking is death penalty. But, in 2013, in Singapore they have made changes in their law as abovesaid. They had changed the law into the one who had some sort of Major depressive disorder in which taking the drugs in kind of medicine or the one acting as drug couriers and assisted the authorities in tackling the drug related activities will be sentenced for life imprisonment instead of death penalty.
• There are various other serious crimes in many countries especially in Asian countries where death penalty is given. The other serious offences are as follows: political protests, rape, human trafficking, unlawful sexual behavior, blasphemy, moharebeh, drinking alcohols, witchcraft, sorcery, arson, Hira bah, etc. but all of these abovesaid crimes committed are in other different Asiatic countries where death penalty is given for such offences and not in our India.

ARGUMENTS OF BOTH SIDES INGENERAL REGARDING DEATH SENTENCES

• Deterrence
• Brutalizing the law, state, person, society
• Expenses (as due to many long trials, the expenses go on increasing)
• Cruelty
• Inhuman
• Unjust and unfair (as according to the USA)
• That will go against the Right to Live

 

• On the other side of the arguments, death penalty should be given as a punishment for a very serious crimes which goes against the humanity nature and that the aggravating factor is seen in the criminal act done which is too harsh and cruel in nature in which death penalty is the only punishments which is proper. In India, the death penalty or the capital punishments is given in only the rarest of rare cases. Which affects adversely on the society and also leaves a very bad influence on the people as well.

Author: Presha Naik,
First Year S.N.D.T. Women's University, Law School