top of page
Admin

CONSTITUTIONALITY OF CAPITAL PUNISHMENT AND THE LEGAL AND ETHICAL ISSUE: A JURISPRUDENTIAL ANALYSIS

By Vansh Gandhi



“Death Penalty is a symptom of a culture of violence, not a solution to it.”

-Salil Shetty, Secretary General of Amnesty International


It is rightly said that death penalty in an exception not a rule to punishment.There has been a long quest of human beings to curb and control deviance and promote conformity to normative behaviour in human culture since times immemorial. Various ways and means have been attempted in this direction. The criminologists, jurists, sociologists and legal professionals have dealt with various aspects of the crime and the penal systems. Death penalty is one of the most debated[1], ancient forms of punishment in almost every society. The Merriam Webster dictionary defines Capital Punishment as the practice of killing people as punishment for serious crimes. It can only be used by a state, so when non-state organisations speak of having 'executed' a person they have actually committed a murder.[2]

“Death penalty is irrevocable; it cannot be recalled. It extinguishes the flame of life forever and is plainly destructive of the right to life, the most precious right of all, a right without which enjoyment of no other rights is possible.”[3]

Debates surrounding the death penalty centre on religious, ethical, political, legal and utilitarian issues. The phrase 'capital punishment' comes from the Latin word for the head. A 'corporal' punishment, such as flogging, takes its name from the Latin word for the body. Capital punishment is used in many countries around the world. According to Amnesty International as at May 2012, 141 countries have abolished the death penalty either in law on in practice.[4] India is one of the 78 retentionist countries which have retained death penalty on the ground that it will be awarded only in the ‘rarest of rare cases’ and for ‘special reasons’. Though what constitutes a ‘rarest of rare case’ or ‘special reasons’ has not been answered either by the legislature or by the Supreme Court.

At its very core, the argument against death penalty comes down to the manner in which we understand crime and those who commit crimes. Do we view crime purely as actions of “inherently bad” people, i.e. attribute responsibility exclusively to the individual (and nothing else)?  


Socialisation as a factor

It is impossible to view crime as something that only “inherently bad” people do and the view that the task of criminal law is to take away “inherently bad” people from our midst is untenable. The cliché that we are all products of our circumstances has much to offer here. This is not to suggest the absolute lack of individual agency in the things we do but rather to argue that the reasons why we do the things we do is influenced by a lot more than just individual will. In that context, a four-year-old being raped and murdered, or raping and mercilessly killing members of a caste or religious group because of visceral hatred are all events that challenge our humanity.

The point is that there is a process of socialisation that contributes to an individual’s thinking that he can rape a woman, insert a rod into her and leave her on the street to die or that he can have such intense hatred for people of other communities that they should be stripped, paraded, raped and murdered.[5] 


Research Methodology 

Objectives of the Study

The objectives of this project are:

  • To study the concept of death penalty and its purpose.

  • To check the constitutional validityof death penalty.

  • To study the case by case development on jurisprudence of Capital Punishment.

To study the legal and ethical aspect of death penalty with focus on various theories of purpose of criminal law

Review of Literature

  • Gopal Krishna Gandhi; Abolishing the Death Penalty: Why India Should Say No to Capital Punishment; Aleph Book Company

  • In Abolishing the Death Penalty: Why India Should Say No to Capital Punishment, Gopalkrishna Gandhi asks fundamental questions about the ultimate legal punishment awarded to those accused of major crimes. Is taking another life a just punishment or an act as inhuman as the crime that triggered it? Does having capital punishment in the law books deter crime? His conclusions are unequivocal: Cruel in its operation, ineffectual as deterrence, unequal in its application in an uneven society, liable like any punishment to be in error but incorrigibly so, these grievous flaws that are intrinsic to the death penalty are compounded by yet another—it leaves the need for retribution (cited as its primary ‘good’) unrequited and simply makes society more bloodthirsty.

  • Phil Porter, "The Economics of Capital Punishment"

  • Law Commission Report, No. 262, The Death Penalty, Law Commission of India o In recognition of the fact that the death penalty is an issue of a very sensitive nature, the Commission decided to undertake an extensive study on the issue. The report has closely analysed the constitutionality and in length it has discussed various other aspects. The committee also have forwarded few recommendations.

Nature & Methodology of the Study

The nature of the study in this project is doctrinal and is primarily descriptive and analytical. This project is largely based on primary sources of data such as cases and reports of committees, however secondary & electronic sources of data have been referred to a great extent. Books, case laws, journals & other reference as guided by faculty of Jurisprudence are primarily used for the completion of this project.

Hypothesis

“An eye for an eye, will make the whole world blind”. Life is precious. Any erroneous decision    by the judiciary may result in irreversible loss. The death penalty breaches two essential human rights: the right to life and the right to live free from torture. Both rights are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948.

Sources of data

This project is work in descriptive and analytical in approach, which I have followed thereby putting heavy reliance on: (i) Primary sources: Conventions, Case laws etc. and (ii)Secondary sources: websites and other web sources. The primary sources will look in to International case laws, Governmental websites etc. The Secondary sources will look into blogs as well as websites, newspaper reports etc.

Research Questions

  • How  Death penalty has been modified in different courses of time?

  • What is the stand of constitution in the matter of Capital punishment ?

  • Is Capital punishment legally or ethically right ?


HISTORY OF CAPITAL PUNISHMENT

The death penalty was prescribed for various crimes in Babylon at least 3700 years ago. Some of the ancient society imposed it only for the most heinous crimes and some imposed it for minor offences. For example, under Rome’s law in the 5th century BC, death was the penalty for publishing ‘insulting songs’ and disturbing the peace of the city at night.[6] Under Greece’s Draconian Legal Code in the 7th century B.C., death was the punishment for every crime. Beginning in ancient times, the executions were frequently carried out in public. Public executions provided benefits for everyone. For the surviving victims of the condemned criminals, the execution provided the grim satisfaction of witnessing the final punishment of those who had wronged them. For the authorities, the executions served as graphic demonstrations of their determination to protect the public safety. Public executions even helped the authorities to do their jobs serving as grisly object lessons for potential wrongdoers.

The extent or the nature of the punishment depended much on the social standing of the criminal as on the nature of the crime. The commoners were executed much more often than nobles. Minorities and foreigners were treated more harshly than members of the dominant group.  The methods of execution were also varied. The common modes of inflicting death sentence on the offender were drowning, burning, stoning, beheading etc. At present the common modes of execution of death are asphyxiation, shooting and hanging. The method of execution by electrocution was first used at Auburn State Prison in New York in 1890 and is now extensively used as modes of execution extensively throughout USA. The method of hanging the prisoner till death is commonly used mode in most of the countries. In India public hanging is held to be unconstitutional.7


INDIAN SCENARIO

Constituent Assembly Debate

Between 1947 and 1949 various questions around the Judge centric nature of the death penalty, arbitrariness in imposition, its discriminatory impact on people living in poverty and the possibility of error.[7] An early attempt at abolition of the deathpenalty took place in preindependent India, when Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the death penalty for IPC offences in 1931. However, this was defeated.[8]

Dr. Ambedkar was personally in favour of abolition. However, he suggested that the issue of the desirability of the death penalty be left to the Parliament to legislate on. This suggestion was eventually followed. Legislative Backdrop

At independence, India retained several laws put in place by the British colonial government, which included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the Indian Penal Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be imposed under the law, including death. Capital Punishment as a form of punishment in various provisions of Indian Penal code, Arms Act, Narcotic Drugs and Psychotropic Substances Act etc.


CONSTITUTIONALITY OF CAPITAL PUNISHMENT

Constitution is regarded as the supreme law of the land. Part III of the Indian Constitution consists of Fundamental Rights which by various judicial pronouncement is now considered as the ‘Basic Structure of the Indian Constitution’.

Article 21 of the Indian Constitution titled ‘Protection of life and personal liberty’ says:

“No person shall be deprived of his life or personal liberty except as according to procedure established by law”. 

This article of the Constitution enshrines the Right to Life guaranteed to every individual in India. The constitutional validity of capital punishment has been called into question several times in the India judiciary and this section shall try to examine those several occasions. 

Justice A.K Ganguly has termed the award of Death Penalty as ‘barbaric, anti-life, undemocratic and irresponsible’ He cautioned that a judge before giving death penalty, a judge must be extremely careful and weigh “mitigating and aggravating circumstances”[9] 

Article 21 permits the state to take away life of a person only through the procedures established  by law. Through judicial pronouncements, it has been accepted that the term “procedure established by law” envisages just, fair and reasonable procedure.

The question of constitutionality of death penalty has been raised before the Honourable Supreme Court in many cases. In the case of Jagmohan Singh v. State of Uttar Pradesh[10], the constitutional validity of death penalty was upheld by the Supreme Court by a unanimous decision of five judge bench.

In the case of Rajendra Prasad v. State of Uttar Pradesh[11], Justice Krishna Iyer said that death penalty directly affects the life of the people guaranteed under Art. 21. To impose death penalty, two requirements must be fulfilled:

1.     Special Reasons must be recorded for imposing death penalty.

2.     Must be imposed only in Extraordinary circumstances.

The question was once again considered in the case of Bachan Singh v. State of Punjab by a bench of five judges. Judges considered the social, ethical and even spiritual aspect of death penalty while upholding its constitutional validity. In Bachan Singh, the Court adopted the ‘rarest of rare’ guideline for the imposition of the death penalty, saying that reasons to impose or not impose the death penalty must include the circumstances of the crime and the criminal.However, Justice Bhagwati recorded a dissenting note wherein he gave arguments against death penalty and stated that since death penalty is irrevocable, miscarriage of justice is irrevocable. He was guided by the principle that hundred guilty persons may escape but no innocent person should be convicted.

However, chance of erroneous conviction in India is very low since there are various levels of appeal. Apart from this the power of pardon, remission and commutation of sentence vested in the Governor and the President acts as another safeguard against any erroneous judicial decision.

In 1983, the Supreme Court was confronted with the mandatory sentence of death enacted in Section 303 of the IPC in the case of Mithu v. State of Punjab[12]. The Court held that the mandatory death sentence was unconstitutional, stating: A standardized mandatory sentence, and that too in the form of a sentence of death, fails to take into account the facts and circumstances of each particular case.

In the case of Sher Singh v. State of Punjab, Chief Justice Chandrachud expressing the view of the three judges held that death sentence is constitutionally valid and permissible within the rules of constraint laid in Bacchan Singh case.

Public hanging was held to be unconstitutional in the case of Lachma Devi v. State of Rajasthan[13] 

Principle of Rarest of Rare Case

Capital punishment is awarded only in the rarest of the rare case. This determination is very difficult. There was a lack of uniformity as to what will constitute the rarest of the rare case. Finally in the case of Macchi Singh v. State of Punjab[14] apex court laid down few principles which are to be borne in mind while giving a decision:

  • Is there anything uncommon about the crime that renders life imprisonment inadequate and calls for a death sentence?

  • Such circumstances are there that no alternative other than death penalty remains

  • The Rarest of Rare principle operates on a society-centric paradigm rather than a judge-centric one. It demands that the court reflect the values, norms, and collective conscience of society when adjudicating on the quantum of punishment.

  • For avoiding the application of the rarest of the rare doctrine, the criminal test and crime test should be used to determine aggravating and mitigating factors.


LEGAL AND ETHICAL ISSUES

Death penalty – A jurisprudential analysis 

  • Theories of punishment 

With change in the social structure the society has witnessed various punishment theories and the radical changes that they have undergone from the traditional to the modern level and the crucial problems relating to them. In the words of Sir John Salmond -The ends of criminal justice are four in number and with regard to the purposes served by them; punishment can be divided as under: Deterrent theory Since the Code of Hammurabi in Babylone the ancient history of Punishment before all things was deterrent, and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him. One of the primitive methods of punishments believes that if severe punishments were inflicted on the offender it would deter him from repeating that crime. The ancient history of Punishment before all things was deterrent, and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him. One of the primitive methods of punishments believes that if severe punishments were inflicted on the offender it would deter him from repeating that crime.

  • Retributive theory 

The most stringent and harsh of all theories retributive theory believes to end the crime in itself. This theory underlines the idea of vengeance and revenge rather than that of social welfare and security. Punishment of the offender provides some kind of solace to the victim or to the family members of the victim of the crime, who has suffered out of the action of the offender and prevents reprisals from them to the offender or his family. 

  • Preventive theory 

Unlike the former theories, this theory aims to prevent the crime rather then avenging it. Looking at punishments from a more humane perspective it rests on the fact that the need of a punishment for a crime arises out of mere social needs that is, while sending the criminals to the prisons to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements. 

  • Reformative theories 

The most recent and the most humane theory, of all theories is based on the principle of reforming the legal offenders through individual treatment. Not looking to criminals as inhuman this theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crimes. Though it may be true that there has been a greater onset of crimes today than it was earlier, but it may also be argued that many of the criminals are also getting reformed and leading a law-abiding life all together. Reformative techniques also possess some elements of deterrent techniques.

Arguments for death penalty Incapacitation of the criminal Capital punishment permanently removes the worst criminals from society and should prove much cheaper and safer for the rest of us than long term or permanent incarceration. It is self evident that dead criminals cannot commit any further crimes, either within prison or after escaping or being released from it.[15] Cost  

Money is not an inexhaustible commodity and the state may very well better spend our (limited) resources on the old, the young and the sick rather than the long term imprisonment of murderers, rapists, etc.[16] 


Retribution 

Execution is a very real punishment rather than some form of reformatory punishment, the criminal is made to suffer in proportion to the offence. Although whether there is a place in a modern society for the old fashioned principal of ‘lex talens’ (an eye for an eye), is a matter of personal opinion. Retribution is seen by many as an acceptable reason for the death penalty. 


Deterrence 

It is hard to prove one way or the other because in most retentionist countries the number of people actually executed per year (as compared to those sentenced to death) is usually a very small proportion. It would, however, seem that in those countries (e.g. Singapore) which almost always carry out death sentences, there is generally far less incidence of crime, because of fear psychosis in the society. This tends to indicate that the death penalty is a deterrent, but only where execution is an absolute certainty. Statistics were kept for the 5 years that capital punishment was suspended in Britain (1965-1969) and these showed a 125% rise in murders that would have attracted a death sentence. Whilst statistically all this is true, it does not tell one how society has changed over nearly 40 years. It may well be that the murder rate would be the same today if we had retained and continued to use the death penalty. It is impossible to say that only this one factor affects the murder rate. In 1995, Singapore hanged an unusually large number of 7 murderers with 4 in 1996, 3 in 1997 and only one in 1998 rising to 6 in 1999 (3 for the same murder)[17] Singapore takes an equally hard line on all other forms of crime with stiff on the spot fines for trivial offences such as dropping litter and chewing gum in the street, caning for males between 18 and 50 for a wide variety of offences, and rigorous imprisonment for all serious crimes.


Ethical Issues

The world’s religious communities are divided on the death penalty. Despite a seemingly unambiguous commitment to non-violence (or “Ahimsa”) in both Hinduism and Buddhism, scholars within those traditions continue to debate the permissibility of lethal punishment. The Old Testament enjoins us to take an “eye for an eye” – the principle of lex talionis – while the New Testament exhorts us to “turn the other cheek”. And while Islam is generally regarded as compatible with the death penalty, the Quran’s emphasis on forgiveness suggests that Muslims should sometimes respond to evil with mercy, not retaliation.

While many European countries urge an ethic of rehabilitation in their criminal justice systems, many jurisdictions in the United States stand firmly in favour of capital punishment for serious crimes. Even a federal jury in Massachusetts, a liberal bastion, recently doled out the death penalty to the sole surviving perpetrator of the Boston marathon bombing. And while the United Kingdom abandoned the death penalty in 1964 – the year of the last executions – nearly half of the British public favours a reintroduction of it (though that figure has been dropping steadily). We will not make progress in the public debate about the death penalty unless we realise that it is only one element in a much bigger controversy: about the point of punishment itself. As The Conversation invites us to rethink the death penalty over the next few weeks, we must not conduct this discussion in a vacuum.  Considering the three main families in the philosophy of punishment can help us organise our conversation.


THE INTERNATIONAL SCENARIO

UN Secretary-General Ban Ki-moon’s remark reflects the global trend away from capital punishment. More and more Member States from all regions acknowledge that the death penalty undermines human dignity, and that its abolition, or at least a moratorium on its use, contributes to the enhancement and progressive development of human rights.

More than 160 Members States of the United Nations with a variety of legal systems, traditions, cultures and religious backgrounds, have either abolished the death penalty or do not practice it.

Yet, prisoners in a number of countries continue to face execution.

The Office of the High Commissioner for Human Rights, with its mandate to promote and protect all human rights, advocates for the universal abolition of the death penalty. The UN Human Rights Office argues this position for other reasons as well, including the fundamental nature of the right to life; the unacceptable risk of executing innocent people; and the absence of proof that the death penalty serves as a deterrent to crime.

In line with General Assembly resolutions calling for a phasing out of capital punishment , the UN Human Rights Office supports Member States, civil society and other stakeholders campaigning for a  moratorium on the death penalty and ultimately  its abolition  worldwide. Internationally, countries are classified on their death penalty status, based on the following categories:[18] 

1.   Abolitionist for all crimes

2.   Abolitionist for ordinary crimes[19] 

3.   Abolitionist de facto

4.   Retentionist

The international framework

From the early 1960s, although a majority of countries still used the death penalty, the draftees of the International Covenant on Civil and Political Rights (ICCPR) had already begun moves for its abolition in international law.

Although Article 6 of the ICCPR permits the use of the death penalty in limited circumstances, it also provides that “nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”

Safeguards guaranteeing protection of the rights of those facing the death penalty  In 1984, the UN Economic and Social Council adopted Safeguards guaranteeing protection of the rights of those facing the death penalty. 

Second Optional Protocol to ICCPR, aiming at the abolition of the death penalty In 1989, 33 years after the adoption of the Covenant itself, the UN General Assembly adopted the Second Optional Protocol to the ICCPRthat gave abolition decisive new momentum. Member States which became parties to the Protocol agreed not to execute anyone within their jurisdictions.

UN General Assembly resolutions 

In a series of four resolutions adopted in 2007, 2008, 2010, 2012 and 2013, the General Assembly urged States to respect international standards that protect the rights of those facing the death penalty, to progressively restrict its use and reduce the number of offence which are punishable by death


 CONCLUSION

Sanction is an essential ingredient of law. Punishment is a social custom and institutions are established to award punishment, after following criminal justice process. Governments prohibit taking life, liberty or property of others and specify the punishments, threaten those who break the law. Death penalty in India is not completely abolished but given in rarest of the rare cases which in my opinion  must  be  retained  for  incorrigibles  and  hardened criminals but its use should be limited to rarest of rare cases so as to reduce the chances of arbitrariness in judicial process and failure of Justice 

As a society we find ourselves in a strange bind — on the one hand seeking more violent and harsher punishments for certain crimes and at the same time struggling with rampant impunity for certain others. Justice is not served in either situation. To tweak Martin Luther King’s words, the arc of the moral universe must bend towards a more empathetic version of justice rather than a retributive. The state cannot seek to take life because it has an equal commitment to everyone within its fold. When a crime is committed, the perpetrator is not the only one breaking the social contract. Obviously the state has failed to protect the victim and society but at the same time it has also failed the perpetrator in equal measure albeit in a different way. At the risk of repetition, it is not to suggest that the perpetrator has no individual responsibility but that we must also recognise the failure of society and state one  


SUGGESTIONS 

a)      It is recommended that measures like provisions for police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.

b)      Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by the law makers, there is no reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences. It is recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war.

c)      A more rational, principled and informed debate on the abolition of the death penalty for all crimes should happen. 

d)      Further, it is sincerely hoped that the movement towards absolute abolition will be swift and irreversible.



The author of this article is Vansh Gandhi, a third-year law student at National University of Study and Research in Law.

 

[1] Should capital punishment be abolished? The Times of India, June 27, 2004.

[3] Justice PN Bhagwati in Bacchan Singh v. State of Punjab, 1982 AIR 1325

[4] Death Sentences and Execution, Report by Amnesty International

[5] Should we Do away with Capital Punishment?, Anup Surendranath, The Hindu, May 11, 2017

[6] Death Penalty: The Case of Life v. Death, Leonard A Stevens (McCan & Geoghegan, 1978) 

[7] Constituent Assembly Debates on 3 June, 1949, Part II available at Http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm

[8] Law Commission of India, 35th Report, 1967, at para 12, available at http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf

[9] Death penalty "barbaric, anti-life": SC judge, Times of India, Nov 15, 2011

[10] AIR 1973 SC 1947

[11] AIR 1979 SC 1916

[12] (1983) 2 SCC 277

[13] (1986) Cri LJ 364

[14] AIR 1983 SC 957

[15] David Anderson, “The Death Penalty – A Defence”, http://www.yesdeathpenalty.com/argument_1.htm

[16] Phil Porter, The Economics of Capital Punishment, Clarendon Press, 1998

[17] Death Penalty Information Centre, “Facts about Deterrence and the Death Penalty”, http://web.amnesty.org/pages/deathpenalty (visited on 28/12/06)

[18] Report of the Secretary-General, E/2015/49 [advance, unedited version] at page 4; Annex II, Amnesty International, Death Sentences and Executions in 2014, ACT 50/001/2015.

[19] Capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, Report of the SecretaryGeneral, E/2015/49 [advance, unedited version] at page 4 21 Annex II, Amnesty International, Death Sentences and Executions in 2014, ACT 50/001/2015.

 

This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).


0 comments

Comments


bottom of page