“ I have said repeatedly that I think death penalty should be applied in very narrow circumstances for the most egregious of crimes” —Barack Obama
When it comes to the death penalty every judicial body irrespective of nationality thinks twice, thrice, or uncountable times to adjudicate and subsequently release the verdict. The reason lies in the very principle of punishment i.e. reformation, which may be in threat for consequent capital punishment. Eventually death penalty remains a public attention and its historical background, consequences, protections, rules, regulations and procedures are undisclosed to people.
Historical Background
Code of king Hammurabi of Babylon, the 6th Babylonian king enacted it in 1754 BC. It is considered first established law related to death penalty, which codified penalties for 25 heinous crimes. Apart from this the Draconian Code of Athens, which made death the only punishment for all crimes falls in the same category. It may have been a myth, but legend says that the Draconian Code was written in blood instead of ink. The Torah (Jewish Law), often termed as Pentateuch lays down death penalty for murder, kidnapping, practicing black magic, blasphemy and sexual crimes. Other stringent capital punishment laws are Hittite Code of 14th Century BC, Roman Law of Twelve Tablets of 5th BC, Murder Act of 1752, they adopted common mode of death inclusive of lethal injection, electrocution, gas chamber, hanging, beheading, boiling in oil, burying alive, crucifixion, burning, disembowelment, flaying alive, impalement, stoning, strangling, thrown to wild animals, drowning and quartering.
In countries like America, death penalties was largely influenced by Britishers or they brought the practice of capital punishment to America. First recorded execution was of Captain George Kendall, in the Jamestown of Virginia in 1608 for being a spy of Spain. After the long quest of independence from Britain many countries ended capital punishment and laws related to it due to its arbitrariness.
Historical Background in Indian Context
Before colonization of India, the numerous forms of death penalties used by kings were beheading, thrown to wild animals and deprivation from food. But British government followed hanging as penalty. Britishers were pioneer of death penalties in India during their regime. The British government policy on capital punishment was clearly stated in 1946 by the then home minister, Sir John Thorns in the various debates of legislative assembly. He reiterated “the government does not think it is wise to abolish capital punishment for any type of crime for which that punishment is now provided”. Earlier in 1931, when one member from Bihar, Shri Gaya Prasad Singh sought to introduce a bill to abolish capital punishment was negated by the same home minister. After independence India retained several laws from British colonial government which induced CrPC of 1898 and IPC of 1860. The IPC prescribed six punishment inducing death also.
Evolution of Death Penalty in India
Till the 5 years of adopting the Indian Constitution death penalty was contemplated as normal punishment for murder. Following alteration in 1955 it was totally discretion of session judge to offer one sentence either death penalty or life imprisonment whichever seems him pertinent. Later in 1973 CrPC was amended, making compulsion for every session judge to enlist the reasons for offering death sentence to the Parliament. In Darwinism of death penalty, Bachan Singh vs State of Punjab, 1980 plays an imperative role. The following cases is a landmark case determining the constitutional validity of the death penalty for murder provided in Section 302 of IPC and procedure embodies in Section 354 Subsection (3) of CrPC. In the subsequent case, the Supreme Court(SC) of India laid down the “rarest of rare” doctrine simultaneously imposing the limitations on death penalty in very severe or heinous crimes. This ‘rarest of the rare’ norms had met some sort of tranquillity in Machhi Singh and Others vs State of Punjab, 1983 where brutal manner, meanness and proportion was taken into consideration.
Protection from Death Penalty in India
Article 20 of the Indian Constitution grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or corporation. Another prominent feature is review petition which is dealt under section 114 and order 47 of CrPC. If the review petition is also nullified by SC then curative petition can also be filed in apex court for the same cause. The concept of curative petition was evolved by SC of India in Rupa Ashok Hurra vs Ashok Hurra, 2002. And the last remedy is mercy petition or pardoning power of president, vested in Article 72 of the Indian Constitution.
Argument Against Death Penalty
The intention of punishment dwells on three points, retribution, reformation and deterrence. Retributive theory or “eye for an eye” seems orthodox and negates the doctrine of reformation. It is argued that theory of reformation i.e. transforming the criminal into a good person gets defeated due to the very idea of capital punishment. Deterrence is the postulate which suggest fear to act as dissuasion for not committing any crime. But there is no factual data which corroborates the following relationship or proves that that penalty creates more deterrence then life imprisonment. The major flaw of capital punishment lies in the ambit of judicial bodies i.e. mistaken conclusion by judiciary. Supposedly, if in future the accused rewarded with death penalty proves to be innocent then the following mistake is not rectifiable. Many justice lovers and in fact Law Commission of India (LIC) worries about arbitrariness of death penalty. In 2015, LCI argued that constitutional regulation of capital punishment has failed to prevent death sentence from being imposed arbitrarily. Even it deprives the individual of Article 21 of Indian Constitution, which ensures right to life.
Currently 56 countries including India retain capital punishment, 106 have completely abolished it for all crimes, 8 have abolished it for ordinary crimes and 28 are working for it. China, US, Indonesia, Pakistan, Bangladesh, Nigeria, Philippines, Ethiopia, Saudi Arabia, Iran, Japan, south Korea, Taiwan and Sri Lanka has been maintaining capital punishment. China is believed to execute many peoples as compared to other counterparts.
Rising-Declining Trend
After handing out of 186 death sentences in 2018 which was a 20 year high, the number of capital punishment given out at trial in 2019 declined sharply to 102. But contribution of the death sentences for sexual crimes is on the rise. As there is proliferation and clear focus on perpetrators of sexual crimes as particularly “deserving” death penalty. Maharashtra is home to most number of such convicts (76) followed by Uttar Pradesh (44) and Madhya Pradesh (40). We can observe a rising-declining trend in the mentioned stats. In 2016 the reported death sentences were 150; 108 in 2017 and 162 in 2018. On the portfolio of states, since independence in 1947, the majority of execution have been carried out in Uttar Pradesh, according to the National Law University, Delhi. The state has executed a total of 354 people, with next highest number being Haryana (90) followed by Madhya Pradesh (73).
UN and Global Demand
The National Coalition to Abolish the Death Penalty (NCADP) is the largest organisation situated in United States founded in 1976. NCADP is the only organisation which has popular mandate to abolish death penalty. It also provides extensive information regarding imminent and passed executions. Capital punishment is an controversial issue for many countries. Various organisation like European Union and United Nations is committed for its abolition. In the EU, Article 2 of the Charter of Fundamental Rights prohibited the use of capital punishment. But its reach is limited as the following is applicable to only ratifiers of European Convention on Human Rights which does not include Armenia, Russia and Azerbaijan. UN is working for the same mandate for many years. United Nation General Assembly (UNGA) has adopted many non-binding resolutions. The UNGA embraced resolutions in 2007, 2008, 2010, 2012 and 2014 calling for a global moratorium on execution with an aim of gradual eradication.
India and Quest for Abolition
Many jurist believes that death Penalty is impossible to administer fairly or rationally. The SC of India has repeatedly accepted that it has arbitrarily imposed capital punishments. On an average executions occurs in 5.2 cases for every one lakh murders. It depends overwhelmingly on the personal beliefs and values of adjudicator. One can be morally strong or another can have less emotional quotient which reduces the judicial balance in the context of death penalty. Punish, yes, but why it is in the same cold-blooded, premeditated and brutal manner as prisoner killed his victim. Hence more comprehensive regulation is needed to deal with capital punishment.
As per conclusion Global demand for abolition of capital punishment needs an eclectic platform embracing all global stakeholders as it disturbs the important principle of reformative theory or death penalty should be given in very atrocious crime. The term atrocious crime should only contain monstrous acts. The judiciary must acknowledge that country like India promotes reformation rather than “eye for an eye” philosophy.
