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Author- Shaurya Dhoundiyal
CAPITAL PUNISHMENT; A BOON
OR BANE
ABSTRACT
Capital punishment is the legally authorized killing of someone as the penalty for a crime. Death penalty is widely used as a means to punish crimes that are heinous to the society as a whole. In the recent times there have been a lot of heated discussions regarding the validity of capital punishment. 36 countries actively practice capital punishment, 103 countries have completely abolished it, whereas six have abolished it for ordinary crimes. The crime for which capital punishment is given varies from country to country. In some countries, the method is restricted to murder, terrorism, sexual crimes as well as drug trafficking in some countries. But, in China, human trafficking and serious cases of corruption are also punished by death. The majority countries in Asia and the USA, Africa and most of the Caribbean region supports and follows the concept of capital punishment whereas developed countries have abolished it. The argument put forward by the abolitionists is that the fundamental right i.e. the right to life of a human cannot be taken but the problem with this view is that they ignore the human right to life of the victim which is taken by the perpetrator. The hypocrisy of the western abolitionist countries is exposed when they shoot dead the terrorists. On one side they propagate the abolishment of capital punishment and on the other hand, they carry on the killings of terrorists. The basic idea behind the concept of capital punishment is not to take away the lives of the wrongdoers, but it is to create a deterrent effect in the society and to set an example so as to prevent crimes that are heinous to the society. But in Sudan even homosexuality is dealt with capital punishment. So the driving factor behind the research is to delimit the scope of crimes for which criminal punishment is given. A proper definition of certain heinous crimes should be given, and it should be made sure by the government that the trial is done with utmost care and the execution after the conviction should be quick. Keywords – crime, punishment, deterrent, killing, abolitionist
INTRODUCTION
One of the most pertinent debates in today’s world is on Capital punishment. Most of the developed countries have opted for the abolishment of it. Whereas countries like India, China, and the USA which contain majority of the population still retain this punishment. Capital punishment has undergone a great change. The first established death penalty laws date can be traced back to the Eighteenth Century B.C. in the Code of King Hammurabi of Babylon, which codified death penalty for twenty five crimes. The death penalty was also part of the Fourteenth Century B.C.'s Hittite Code; in the Seventh Century B.C.'s Draconian Code of Athens, which made death the only punishment for all crimes; and in the Fifth Century B.C.'s Roman law of the Twelve Tablets. Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement.^1 The barbarous and brutal forms of execution are no longer used. The most common methods of capital punishment have become hanging and lethal injections which give a swift and less painful death to the offender .In the words of Sir John Salmond, “The ends of criminal justice are four in number, and in respect to the purposes served by the punishment can be divided as :
- Deterrent
- Retributive
- Preventive
- Reformative 2
DETTERENT THEORY
This theory states that criminal laws are passed with well-defined punishments to discourage individual criminal defendants from becoming repeat offenders and to discourage others in society from engaging in similar criminal activity. Deterrence is one of the primary objects of the criminal law. Its primary goal is to discourage members of society from committing criminal acts out of fear of punishment.^3 (^1) By Death Penalty Information Centre, History of death penalty,(January13,10.58am)http://www.deathpenaltyinfo.org/part-i-history-death-penalty (^2) By Shaswata Dutta, Theories of Punishment- A Socio-Legal View, legalservicesindia , (January 13, 1.54 pm) http://www.legalserviceindia.com/articles/pun_theo.htm (^3) The Free Legal Dictionary, (January 14, 2.08pm), http://legal-dictionary.thefreedictionary.com/deterrence
himself or for civil society. It must always be inflicted on him only because he has committed a crime.The law of punishment is a categorical imperative.^8 The main aim of capital punishment is to punish the individual who has committed heinous crimes. Punishment "removes the undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by the offense."^9 This punishment is given by an authorized body such as the courts after a due procedure. The Defendant must have the right to appeal against the judgment so all precautions are taken before the judgment and there is no room for doubt. Capital punishment has to be used to curb the menace of serious crimes being inflicted on the society. Now two sides have emerged the abolitionists and the Retentionists.
PREVENTIVE THEORY
The preventive theory is founded on the idea of preventing repetition of crime by disabling the offender through measures such as imprisonment, forfeiture and suspension of licence.^10 Preventive theory was supported by utilitarian law reformers. It has a more humanising effect on the society as this theory doesn’t propagate avenging the crimes but aims to make the society safer by keeping offenders in jails. In their view, it is the certainty of law and its severity which has a real effect on offenders. The development of the institution of prison is essentially an outcome of the preventive theory of crime.^11 Some supporters of this theory also consider capital punishment to be a part if this theory. This theory is based on the idea of preventing the wrongdoers from committing any more crimes and thereby ensuring peace and security in a society. This theory discourages the people from committing any wrong without performing any severity in the criminals. (^8) Immanuel Kant, PART IV - Kant on the metaphysics of morals: Vigilantius's lecture,( Print and Publication Year:
- available at http://ebooks.cambridge.org/ (^9) Cragg, Wesley. The Practice of Punishment: Towards a Theory of Restorative Justice (New York, Routledge, 1992),
- Updated edition (2002) (^10) US Legal, Preventive Theory Law and Legal Definitions, ( January 19, 1.10pm),http://definitions.uslegal.com/p/preventive-theory/ (^11) Id.
THE RETENTIONIST STAND
Capital punishment is the lawful infliction of death as a punishment and since ancient times it has been used for a wide variety of offences.^12 Certain religious texts, such as Bible prescribe the affliction of death penalty for various crimes. Justice demands that an offender be punished in a manner proportionate to the crime, and hence, capital punishment is justified for heinous crimes such as terrorism, which have a very bad impact on the society as a whole.^13 Capital punishment removes the most dangerous criminals from society, thus providing a safer society for the rest of the people. There are no risks of the incarcerated criminals merging back into the society. It is self-evident that dead criminals cannot commit any further crimes, either within prison or after escaping or after being released from it. Moreover, it should be clearly stated that the aim of imposing capital punishment is not to take away the life of the wrongdoer, but it is to create a deterrent effect and to set an example so as to prevent crimes that are heinous to the society. The rates for unlawful killings in Britain have more than doubled since abolition of capital punishment in 1964 from 0.68 per 100,000 of the population to 1 .42 per 100,000. 14
THE ABOLITIONIST STAND
As Mahatma Gandhi said “an eye for an eye will make the world blind” the state cannot perceive justice as vengeance because the capital punishment aims to bring out only vengeance against the offenders. Error of justice is irreparable – The possibility of executing an innocent man exists. In a society where the government itself condemns killing and violence, it is wrong on the part of the government to resort to the same means as a way of punishment. No statistics by any trusted organization that prove it has a more deterrent effect than life imprisonment. (^12) Arguments for and against capital punishment in the U.K, (January 23, 4.30pm),http://www.capitalpunishmentuk.org/thoughts.html (^13) Capital Punishment, Retentionist arguments, (January 23, 4.16pm),http://home.southernct.edu/~gillilandr1/phil200/CapitalPunishment.htm (^14) Arguments for and against capital punishment in the U.K, (January 23, 4.30pm),http://www.capitalpunishmentuk.org/thoughts.html
than the rest of the world. Iran, Saudi Arabia, Iraq and the USA made up the world’s top five executioners.^20
CAPITAL PUNISHMENT IN INDIA
In India capital punishment is retained. Hanging is the method of execution in the civilian court system, according to the Indian Criminal Procedure Code.^21 Under the 1950 Army Act, hanging as well as shooting are both listed as official methods of execution in the military court-martial system.^22 According to a December 13, 2012 report, 477 people were on death row in India^23. Based on the official statistics of the National Crimes Records Bureau, between 2001 and 2011, an average of 132 death sentences were handed down each year.^24 However, the Supreme Court confirms barely three to four death sentences each year. The latest case of excution that took place in India was the hanging of Yakub Menon, who was convicted for financing the 1993 Mumbai bombings. Before this exexution, the last three executions that took place in India were on 8 th^ February, 2013 , which was the hanging of Muhammad Afzal whi was convicted of plotting the 2001 attack on India’s Parliament, the hanging in 2008, of Mohammad Ajmal Amir Qasab, a gunman in the Mumbai attack of November 21, 2012, and of Dhananjoy Chatterjee in 2004, who raped and murderd a 14- year old girl which was country’s first execution since 1995. The crime of murder, as given under section 302 of the Indian Penal Code, 1860, is also punishable by death. The case of Bachan Singh v. State of Punjab, serves as a landmark case which decided the application of the concept of capital punishment in India. In this case, the Supreme Court held that death penalty should only be applied for the most heinous offences (“the rarest of the rare”), and that the application of death penalty, while not always predictable, still should be highly restricted.^25 Moreover, in the case of Machi Singh v. State of Punjab^26 , the Supreme Court provided five catagories of murder under which th ‘rarest of the rare’ doctrine is to be applied. They are- Motive Manner of commission The magnitude of the offence (^20) By Amnesty International, Death Sentences and Executions in 2014(24 Jan, 2014, 10: 55 pm) https://www.amnesty.org/en/latest/research/2015/02/death-sentences-and-executions-2014/ (^21) India Criminal Procedure Code, ch. XXVII, art. 354 (5). (^22) Army Act, art. 166, Act no. 46 of 1950, May 20, 1950. (^23) BBC, India has 477 People on Death Row, http://www.bbc.co.uk/news/world-asia-india-20708007, Dec. 13, 2012. (^24) Asian Centre for Human Rights, The State of the Death Penalty in India in 2013: Discriminatory treatment amongst death row convicts, p. 1, http://www.achrweb.org/reports/india/IndiaDeathPenaltyReport2013.pdf, Feb. 14, 2013 (^25) Bachan Singh v. State of Punjab, (1980) 2 SCC 684. (^26) Machi Singh v. State of Punjab, (1983) 3 SCC 470.
The anti social effect or nature og the crime The personality of the victim. The court is required to carefully examine these guidilines before declaring a case to be ‘rarest of the rare’ in nature. Moreover, According to the Penal Code, there are several crmies for which, death penalty can be given in India. Some of them are- As per section 396 of the Indian Penal Code, 1860, if any member of a group of committing an armed robbery, committs murder in the course of such robbery, then all members of the group can be sentenced to death. If the victim is killed in a case if kidnapping for ransom. Being a member of an association or promoting an association while committing any act using unlicensed firearms or explosives that results in death.^27 Moreover, as per section 3 (2) of the Prevention of Atrocities Act, any person who bears false witness in a capital case against a member of a scheduled caste or tribe, resulting in that person's conviction and execution, will be subject to death penalty and assisting individuals who are under the age of 18, mentally ill, mentally disabled, or intoxicated in committing suicide is also punishable by the death penalty in India.^28
CAPITAL PUNISHMENT IN CHINA
China carries out more executions than the rest of the world put together. Amnesty International believes thousands are executed and sentenced to death there every year, but with numbers kept a state secret the true figure is impossible to determine.^29 The Dui Hua Foundation, a U.S.-based human rights non-profit that focuses on China, estimates China kills about 5,000 prisoners annually. In absolute terms, that would be about 14 executions daily, or in three days what the U.S. performs in an entire year. The authorized methods of execution used as per China’s Crminal Procedure Law of 1996 are lethal injection and shooting. In China, capital punishment can be granted for non-lethal crimes as well such as drug trafficking and embezzlement, etc. However, Chiara Songragio, Amnesty International’s death penalty expert, told Newsweek that despite “some limited positive steps”, secrecy has made it difficult to evaluate the general situation in China. In a landmark case in (^27) The Unlawful Activities (Prevention) Amendment Ordinance, art. 6, 2004. (^28) Indian Penal Code, ch. XVI, art. 305, Act no. 45 of 1860, Oct. 6, 1860. (^29) By Amnesty International, Death Sentence And Executions, 2014, (January 25, 5.46pm), http://www.amnestyusa.org/research/reports/death-sentences-and-executions-2014.
11 by Gas Chamber 3 by Hanging 3 by Firing Squad (36 states plus the US government use lethal injection as their primary method. Some states utilizing lethal injection have other methods available as backups. Though New Mexico abolished the death penalty in 2009, the act was not retroactive, leaving two prisoners on death row and its lethal injection protocol intact.)^36
SAUDI ARABIA
Death penalty is most widely and arbitrarily used in Saudi Arabia. The most common form of execution being stoning and public beheading. It is even imposed for adultery and drug trafficking (^37) .The rate of execution in Saudi Arabia is very high in comparison to Global standards with more than (79+) executions.^38
CONCLUSION
The debate for abolishment has been going on for quite some time now. Whereas most of the western countries have adopted abolition of the Capital punishment they cannot force or hope the developing countries to abruptly stop the use of capital punishment as the economic and social factors of the third world countries are still not suitable to abolish capital punishment; one of the prime factors is the high rate of crime in less developed countries. The deterrent value of the capital punishment is too high to be ignored as life imprisonment doesn’t contain the same deterrent value. It is the judicial process for handing out capital punishment which should me made fair. Executions should be carried out only in rarest of rare cases and the persons awarded such sentences should have the right for appeal and mercy petitions. Such cases should be handled with extraordinary care so that there is no chance for error and it should be made sure that the process is not very long and tedious. The procedure for handing out capital punishments should be made within a certain time limit, which is different for every case. What should be ensured is the prevention of the usage of (^36) By Death Penalty Information Centre, Facts about Death Penalty, deathpenaltyinfo.org (11 December 2015,10am), http://www.deathpenaltyinfo.org/documents/FactSheet_7_6_2010.pdf. (^37) By Cornell Law School ,Death Penalty Database,deathpenaltyworldwide.org(Jan 11,2016, 8 pm) http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=saudi+arabia. (^38) By Times of India , 98 countries have abolished death penalty, September 5, 2014.
barbarous acts for execution such as stoning, firing squad, electrocution etc. Barbarity cannot be used in the semblance of justice. After analysing the above points, it could be clearly concluded that capital punishment is not a curse but a blessing in disguise for society. Capital punishment could serve as a blessing to the society is it is used to punish the “rarest of the rare” cases as decided by the Bachan Singh vs. State of Punjab case in India. It should be used as a means to set an example against heinous crimes in the society. Moreover, even France which is a member of the European Union (pro abolitionist of capital punishment) has used this concept as a method of punishing the terrorists of the recent Paris bomb blast. So, by this action of France it could be clearly stated that even countries that have a stand against capital punishment are it to punish the “rarest of the rare” crimes or the crimes that are heinous to the society as a whole. Hence, the correct solution of this never ending debate about the concept of capital punishment is to limit the ambit of it to the crimes that are “heinous to the society as a whole” or are “rarest of the rare” in nature. The scope of crimes for which capital punishment is given has to be delimited to acts of terrorism and certain barbarous acts which shake the society such as serial murders and psychopathic killings. It is in this way that the concept of capital punishment can serve its purpose.
