Is Capital Punishment is justified or not?

Name- Suryapratap Singh Jodha
1st year
Rajiv Gandhi National University of Law, Punjab

What is Capital Punishment or Death Penalty?

Capital punishment which is also known as death penalty. It is a government sanctioned practice whereby a person is put to death by the state as a punishment for a crime. Capital punishment actually means execution of someone in the form of punishment. The sentence ordering that someone be punished in such a manner is referred to as a death sentence, whereas the act of carrying out such a sentence is known as an execution. Those who have committed serious offences like Dacoity with murder, human genocide, rape, sedition, Terrorism, robbery, waging war against war, abetting a mutiny in the armed forces, murder etc.

Capital offences according to Indian Constitution are:
• 120B of IPC- being a party to a criminal conspiracy to commit a capital offence
• 121 of IPC- waging war against India
• 132 of IPC – abetting a mutiny in the armed forces
• 194 of IPC – giving or fabricating false evidence with intent to procure a conviction of a capital offence
• 302, 303 of IPC – murder
• 305 of IPC – abetting a suicide of a minor
• Part 2 Section 4 of The commission of Sati (Prevention) Act,1987 – aiding or abetting an act of sati
• 364A of IPC – kidnapping, in the course of which the victim was held for ransom or other coercive purpose.
• 31A of the Narcotic Drugs

Position in India

In India Capital Punishment is legal in India. The first case of Capital Punishment took place in 1955 and the most recent capital punishment or death penalty took place in 2020. In Mithu vs. State of Punjab the honourable Supreme Court struck down Section 303 of IPC (Indian Penal Code), Section 303 provided the compulsory death sentence for the offenders who had committed murder while their ongoing life sentence. The first hanging of India after the independence was that of Narayan Apte and Nathuram Godse in the case of Mahatma Gandhi assassination on 15 November 1949.
India is one of the only 54 countries still retain capital punishment. In 1967, the Law Commission had argued to retain capital punishment, but in 2015 it stated that “retribution cannot be reduced to vengeance”. The debate over the death sentence is going on for a long time. Those in favour of capital punishment see it as deterrence against such type of crimes while others opine that it has not had any such effect. There are 104 countries that completely abolished the capital punishment de jure for all the crimes.

First Initiative:
In legislative assembly of British India, the first time a matter was upraised about death penalty was in 1931, when one of the members from Bihar, Gaya Prasad Singh, sought to introduce a bill to abolish the death penalty for offences under the Indian Penal Code (IPC). However, this was defeated. At the time of independence, India retained several laws put in place by the British colonial government, including capital punishment for various crimes under the IPC. A crucial change in the law was made in 1955 when the Parliament repealed Section 367(5) of Code of Criminal Procedure, which until then mandated the courts to record reasons where it decided not to impose a sentence of death for offences where the death penalty was an option. The CrPC was re-enacted in 1973 where several changes were made, notably to Section 354(3) mandating judges to provide special reasons for why they imposed the death sentence.

Theory related to Capital Punishment

Retribution Theory:

Retribution theory of justice states that justice is done when people are punished, their punishment should to appropriate to their wrong doing. Justice means people who do some wrong should pay for their wrongs. This theory also tells that all criminals deserved to be punished, only criminals should be punished and no innocent should be punished and last one is criminals should be given punishment which is proportionate to the crime he/she committed. The famous quote “An eye for an eye” very perfectly suits this theory.
Deterrence and “just deserts” are considerations that dominate arguments in favour of the capital punishment . at the heart of the deterrence argument lies the belief that harsher punishments will reduce crime. But, criminology research shows that it is certainty of punishment not harshness, which is a better deterrent.
From the view point of some people if we look into the capital punishment, it goes against the Human Rights because as a Human being we don’t have right to take anyone’s life. Because by taking someone’s life, although we will going to set an example for the other peoples that the punishment for any heinous crimes is death and as a Human Being we wants to live and no one wants to die and become an example for others. By killing anyone we can eliminate the criminal obviously but we have to see things from other side of the coin that if we try to reform that criminals by giving him a proper treatment or a good environment to live this will create a good impression on that person’s mind. There are cases when criminals due to lack of love and attention tends to do heinous crimes so by eliminating them by killing them is not a good step; but we can reform them and that might help us from reducing crimes in the country.
In cases like Delhi gang rape case and Kathua rape case we saw people were demanding death penalty for those who committed this type of crime, but what we saw is even after the hanging of four culprits od Delhi gang rape case the rape cases in India is keep on increasing and so there is a need that our judiciary should think of any other way to deal with these type of criminals so that they can set an example for other people.

Layman perspective about Capital Punishment
If we see from perspective of majority of common people then we can see that if anyone heard about the crimes like rape and murder they think that the criminal who did this act should either be hanged or shot by gun in front of all or his genitals should be mutilated. Majority of people thinks this is the only way by which these type of people will going to learn some lesson and they will not going to do again. Due to majority of people want this way to deal with people criminals, this gives a chance to political parties to win their confidence. Ruling government always wants to try to impress public by showing that they are working for them and they will do whatever majority of people wants them to do. Due to this sometimes political parties tries to use their influence and power to give capital punishment to criminals who committed crimes of rape and murder. To win people’s confidence they sometimes don’t try any other way to reform criminals, as criminals are also humans so they should be treated in such way. Every human being once in a lifetime commits any wrong, that’s the human tendency so everyone should get a chance to reform or change and try to balance the wrongs they have done with the rights they will do in future if they are allowed to do so.
There is a very famous quote that says “it is better to allow 10 guilty person escape than let one innocent suffer”. As we all know that capital punishment or hanging some criminals is irreversible action. As it is an irreversible action, it is very much necessary to give this punishment to the right person, after it is proved that he/she is actually guilty of any heinous crime. If we take thing into consideration then the life imprisonment is better option we have than the capital punishment. It is because during the on-going life imprisonment, the culprit still has a choice to challenge that punishment in other courts. Or he/she has a chance to change themselves during this period, by balancing their wrongs with the rights.

Process of Capital Punishment
Once the judge announces their judgement of the case and give orders to hang the convicts as we saw in the case of Nirbhaya case, the three options which the convicts have are Review Petition, Curative petition and the Mercy petition. Convicts have these options to save themselves from the punishment. Mercy petition once rejected by the President of India, this is the last option for any convicts. Once the Mercy petition is dismissed, a Black Warrant is issued by the court and this is the last step before the final death sentence is carried out. After the signing of the Black warrant the court decides the place of execution, date of execution and the time of execution by looking at the suggestion and the preparation of the jail administration. Like in the case of Nirbhaya case, Tihar jail the jail administration reached out to the Uttar Pradesh for an exectutioner. In case the administration is unable to find an executioner, the execution is carried out by the police officers themselves lie in the case of Yakub Memon, Ajmal Amir Kasab and Afzal Guru.
The rope for the hanging especially comes from Buxar, Bihar. The moment the rope comes to the jail, the height and the weight is taken and dummy trial is carried out before the actual hanging. One question that comes up in our mind is what happens to convict before the hanging?
Once the date of the hanging is decided the convict is taken out of the jail of the death cell and put in the another cell and then the district magistrate takes the last statement of the convict and a will is written in front of him. The prisoner is allowed to meet the person he wants to meet for the last time. He then picked up around 4 in the morning on the date of the execution. He then has to take bath and wear new cloths and after that he is taken out of the cell and according to time written on the Black warrant. It’s clearly mentioned in the Jail Manual that how many people will be present during the execution. A Doctor who signs the death certificate, Sub Divisional Magistrate who keeps a check on the process of execution, a Jailor and a Deputy Superintendent Jailor, 10 Constables and 2 Head Constables. Then Jailor drops the hankerchief and on the drop of the hankerchief the hang man them pulls the liver.

Death penalty in simple words means to take someone’s life for the wrongs he / she has committed. Death penalty is given to those people who commits and heinous crimes like Rape, Murder, Waging war against India, etc. There is a question that arises in our mind is that is it necessary to follow this practice to set an example for other criminals or for public in the country? Why there are no alternative to this action?
Who gives this right to us to take someone’s someone life?
The answer to all these questions differ from person to person. On side those who supports this action thinks that the convicts who commits any heinous crime should be given an equal punishment to their crime. They should be killed so that they could not commit any further crimes and this will going to maintain peace and harmony in our society.
On the other hand those who are against the Capital Punishment thinks that if we kills someone for the wrong he/she committed then we are making ourselves equal to that criminal. This means when we takes someone’s life then we are going against the human rights of someone, then we are also criminals. The other reason is that there are no proofs that shows that death penalty actually reduces crimes in future in the country.
There are many arguments in favour or against the death penalty, but it is totally upon us that what according to us is the strong argument and on that only we should take the decision that ”Is Capital Punishment is Justified or not?”

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