Does the society need capital punishment to punish its convicts or are we taking away the lives of convicts who have every right to live on this earth???
‘‘I think life is sacred whether it is abortion or death penalty’’
Death penalty or capital punishment is a legal process wherein a person is put to death by a state in accordance to a crime committed.
Capital punishment has been used over the years by almost every society in order to punish the guilty for some particular crimes such as punishment for premeditated murder, espionage, treason, or as part of military justice. In some countries sexual crimes such as rape, adultery and sodomy carry the death penalty, so does religious crimes such as apostasy (the formal renunciation of the State religion). In many Retentionist Countries (countries that use death penalty) drug trafficking is also a capital offense. In China, human trafficking and serious cases of corruption are also punished by the death penalty.
Only 58 nations (including India) are actively practicing capital punishment, whereas 95 countries have abolished the use of capital punishment.
Back in 1947 India retained the 1861 penal code which provides death penalty for murder. It has been estimated that 1422 executions have taken place in 16 Indian states between 1953 and 1963; and it is hard to measure the rate of death sentence execution between 1980 and 1990. It is estimated that 2 to 3 persons were hung to death every year.
In the Judgment of ‘Bachan Singh v/s State of Punjab (1980)2SCJ475’, 1980, the Supreme Court ruled that death penalty should only be used in the ‘rarest of rare’ cases, but does not give a definition as to what ‘rarest of rare’ means.
In 2013, an amendment to the law permitted death as a punishment in cases where rape was fatal or left the victim in a persistent vegetative state; as well as for certain repeat offenders.
Previously, in reviewing the death penalty, the Law Commission rejected its abolition citing the size of the country and diversity of its population across which law and order had to be maintained.
“A great deal has changed in India,” the commission’s 2015 report said. It listed a higher national wage, changes in development, the introduction of a new code of criminal procedure in 1973, the emergence of constitutional due process standards, calls for abolition of the death penalty from political parties and judicial developments among the reasons to review capital punishment.
India’s Supreme Court has raised questions about “arbitrary sentencing” in death penalty cases. Making the sentencing less arbitrary would be difficult since any categorization of offenses doesn’t take into account the differences between cases.
Article 21 of the Indian constitution provides to its citizens ‘protection of life and personal liberty’ – no person shall be deprived of his life or personal liberty except according to procedure established by law. Fundamental rights don’t cease to exist at the gate of prison. UN human rights experts have welcomed recommendations made by India’s Law Commission to abolish death penalty with the exception of terror offences and called on Indian authorities to move towards the complete abolition of capital punishment.
Few questions to our Judiciary System over the legality or legitimacy of death penalty with respect to Human rights are:
1. Is the judiciary valuing innocent lives which have perished to that of a person committing a heinous crime such as murder?
2. Do criminals who commit a heinous crime such as murder lose the right to live on this earth?
3. Are innocent convicts being executed?
4. Does death penalty take away the right for future appeal that would have been filed by the convict?
5. What is the remedy to wrong executions?
6. Does death penalty to a convict provide proper remedy to the family that has lost its member and gone through the horror and pain of losing their loved one?
Crime rates have not decreased in spite of death penalty or capital punishment in India or any other country with such practices. The death rate in India per 1000 people was reported at 8.04% in 2010 where half of those were criminal homicide. The inclusion of death penalty hasn’t provided any Midas touch to bring down the death rates.
Death penalty is partial to individuals: Ajmal Kasab a terrorist from Pakistan who was one of the accused in the Mumbai attack, 2008 (also known as 26/11), who was captured alive by the police and after due legal process and production of proper evidence he was found guilty for the terrorist attack and was charged for possession of dangerous weapons, was sentenced to death by the Supreme Court of India on 29th August 2012. Instead he had filed a mercy petition to the President of India but was substantively hanged after much delay on November 21, 2012. This delay has kept the convicts in death row for several years.
There are 26 mercy petitions pending before the President of India where some are dated back to 1992. The common people are executed faster. This brings about a sense of partiality and forms a loophole in our own judicial system. It wasn’t for the first time that the sentence for death to a terror convict had taken a political turn.
Similar division was seen when the Parliament attack convict Afzal Guru was hanged.
The death penalty is implemented or executed rarely. Out of 300 murderers only 1 gets a death penalty. Just look at the ratio.
It is necessary in national and people’s interest that other cases of capital punishment are not kept suspended for an indefinite period. Keeping in mind the concerns of the people and doubts raised by them, the judiciary and the government should work towards solving these cases and not keep them pending for long.
There is an endless debate on Retention of Capital Punishment and Abolishment of capital punishment. The endless war between Capital punishment and Human rights.
Those who support retention of capital punishment felt its strong need in cases where the sanctity of the society was violated. Those convicted for capital offences do not deserve an opportunity for reformation, and at times are indifferent to reform.
Those who support abolishment of capital punishment felt that the issue deserves not an emotional but a rational evaluation. They believe that a less severe sentence will give offenders an opportunity to reform themselves after realizing the magnitude of the crime.
There is a speculation that death penalty is the worst way of violating human rights, because right to live is the most important right. A few believe that Judicial hanging is one of the forms of legal murder. Legal murder is no justice. The mental torture that a person goes through while being executed is far beyond imagination. It is inhuman and a monster within the society.
But then there would be total anarchy if death penalty would be abolished because everyone fears death, who would want to end their life? So death penalty may act as a deterrent for future crimes that are going to be committed. Abolitionists may contend that death penalty should be abolished because human life is precious and cannot be valued for anything. A person who has committed a crime is aware of his mistakes and he is alone responsible for his act and consequences. Executions are done keeping in mind the safety of the public.
Executing a convict may not bring back a person who is already dead , but executing the convict, future acts may be prevented.
In order to ban death penalty in India, the public should be convinced that justice can be provided without executing the convict by brutality (there are attempts being made for painless executions, but death is death and it is inevitable).
However, abolishing death penalty may lead to rise in crime rates, laws will be broken more often and various kinds of illegal vigilante style justice may rise.
There can be no end to this debate because until heinous crime exits, there will be Capital Punishments.
Authored By: Adv. Radhika Sarda
