Criminal Law

Abolition of Capital Punishment

By Aaron S John

Crimes have existed since the get-go. The first time it was recognized and declared as an offence punishable by law was by the Sumerians of Iraq. They laid down laws that differentiated between criminal and civil wrongdoings. This dates back to 2100-2050 BC. To curb this, many rulers and kings came up with different types of punishments. The first punishment that was ever laid down was the corporal and capital punishments. Corporal punishments, also known as physical punishment. Here the primary intention is to cause physical pain to the criminal. Capital punishment, on the other hand, is performed to kill the criminal.

A brief history of Capital Punishment 

To understand the concept and origin of capital punishment, we need to know little about the history relating to capital punishment. The death penalty has existed for many centuries and can be traced way back to the 18th century. King Hammurabi of Babylon introduced this; he had stated 25 various crimes wherein the death penalty would be awarded. There were many different ways through which a person was killed. Most of these ways would be considered inhuman by today’s standards. Few ways through which a person was killed earlier were by burning him alive, drowning the wrongdoer, beating a person to death, and impalement. This practice became very famous in the 10th century when the Britishers used this extensively. This was used to induce fear in the minds of the people. This is called the Deterrent theories. The idea behind this was to inflict severe punishments to prevent the offender from committing the crime again. Since then, many countries have stopped this process, including the United Kingdom, as they believed that this was an inhuman way to punish someone.

Capital Punishment in India

Currently, there are a total of 58 countries that follow this process. There are many ways through which a person can be killed. In India, hanging and shooting are used, whereas different methods are used in the United States of America. The most commonly used ones are hanging the wrongdoer, electrocution via electric chair, gas chamber, open firing, and lethal injection. In India, capital punishment is awarded in the “rarest of rare” case. As of now, more than 720 people have been awarded this. The statement of the “rarest of rare” case is as vague as it gets. This has opened the door for debate among people to determine in what cases can this be awarded. 

The Indian Constitution has an article that solely focuses on the Right to Life concept and its protection. Article 21 talks about this; it states that no person shall be deprived of ‘right to life which is promised to every citizen in India. In India, capital punishment can be awarded in more situations than you think. Some of the crimes which attract the death penalty are-

  • Conspiring to commit a criminal act 
  • To commit murder
  • To go to war against the government
  • Abetting to a mutiny
  • To commit dacoity and murder

All these are punishable, and death sentences under the Indian Penal Code (IPC) are awarded. Only the president has the right and power to grant mercy to a wrongdoer in a situation of the death penalty.

Criticisms of Capital Punishment

Few people who strongly believe in retribution are against the concept of capital punishment because they feel that the death penalty provides inefficient retribution. They also argue and believe that life imprisonment without an option of parole can cause more suffering compared to the painless death after a brief period of imprisonment. The death penalty is considered to be conceptually flawed by many jurists. They believe that it fails to deter people.

The death penalty often seems to be the easy way out of trouble as the wrongdoer only experiences temporary pain. In olden times this was done to create fear in the mind of the criminals; hence death penalty was conducted publicly. But nowadays, it is not performed with an audience, thus interfering with the idea of deterrence.

There are also disputes regarding whether the death penalty is legal and consistent with the legal system and justice. Those who are supportive of this belief believe that there should be laws that are designed in such a way that only those who genuinely deserve such harsh retribution be awarded Capital Punishment.

In 2007, the UN General Assembly stated that no evidence states that the death penalty has any deterrent value. It also states that any steps taken on this are irreversible and irreparable. Along with the UN, other institutions like Amnesty International also opposed this, stating that this opposes Articles 3 (Right to Life) and Article 5 (Right not to be tortured) of the Universal Declaration of Human Rights.

My take on Capital Punishment

 There are 7 theories laid down by jurists under which they state 7 different theories via which a wrongdoer should be punished. One of the famous ways of punishing an individual in the olden days was to use the deterrent theory. Like mention earlier, this theory was used a lot because of the eye for an eye concept that existed in medieval times. This way of punishment is still used in many countries that follow Sharia law.

Many times, the validity of the death penalty has been challenged in Indian courts. The first time the Indian Courts were challenged in the landmark case of Jagmohan v. State of Uttar Pradesh. Under this case, the Hon’ble Supreme Court upheld its validity and stated that capital punishment is legal. It further stated that the death penalty was reasonable.

I believe that capital punishment should be made illegal as it is inhuman and killing a person contradicts the whole idea of punishing him. When we try to punish a person for his wrongdoings, we try to keep in mind two things. The first one being the crime he has committed, and the second one being to what extent did he commit it. This makes it easier for a person to award the wrongdoer a punishment that is substantial to the crime he has committed. If a person has committed a grievous crime like murder, then before rewarding him the death penalty, one must know the whole background of that person.

When a person has been awarded a punishment, the background of the person is often ignored; this, in my opinion, is unfair as the background of the person plays an important role and had a direct impact on the thinking of a person. A person who has a disturbed childhood is more likely to commit a crime than a person who had a good childhood. Imagine granting jail time to a person who tried committing suicide. In this case, that person’s mental health will worsen even more. The correct way to deal with this case will be to send the person to rehab. Hence the court should first research the mental health of the person to understand why the person or what made the person commit an act like suicide.

I feel that the reformative theory and preventive theory are the way to go for providing a meaningful retributive method. The reformative theory states that a person who has been awarded any sort of punishment should be able to re-join society. A person, no matter what sort of grievous crime he has committed, is capable of reforming himself and can re-join as a healthy contributing member of society. To ensure this happens, the state has to take certain measures that will help the criminal to reform and change his thinking and behaviour and subsequently change himself. The preventive theory states that a person who has committed a crime should be imprisoned rather than executed regardless of the extent of the crime. While he is imprisoned, he should perform intense labour. 

I also believe that what differentiates humans from other animals is the concept of humanity and to differentiate between what is wrong and what is right. Morals can change from person to person, but for the majority part, a person can differentiate between what should be acceptable and what should not be acceptable. Capital punishment is like a thin line on the sand which makes it so controversial as few are for it and few are against it. An act that is very old and was followed by a lot of generations need not necessarily be always correct.

Conclusion

As a final remark, I believe that capital punishment is against the morals of human beings. Killing someone is not the correct way to punish someone. Though this has only been awarded in very rare cases, the courts have tried to rely maximum on penalties other than this. Before awarding the death penalty, few things need to be considered. India, as of today, still follows the death penalty and has stood firmly behind retaining capital punishment. The court maximum has tried to minimize this punishment and relied upon granting other alternatives as a punishment. The numbers also reassure the fact that capital punishments are awarded in very few cases. There have only been three executions in the previous decades, and all of them were related to terrorist activities. Let us hope that these numbers never increase and our nation become more merciful while at the same time adapting tactful measures to contain crime.

Categories: Criminal Law, Opinion

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