Capital Punishment - Is an Integral Part of Criminal Justice System?
Capital punishment, often referred to as death penalty is the most severe form of punishment whereby a person who has committed a heinous crime is put to death by the state. A concept of capital punishment is not new and has its existence since ancient period. The footprints of death penalty can be traced back to the Eighteenth Century B.C in the Code of Hammurabi in which death penalty was codified for 25 crimes. An idea of “eye for an eye” was supported by this code. In ancient times there were other forms of capital punishment which were prevalent in the world such as dragging a body by a horse, cutting the head by use of an axe, rolling a wheel full of spikes on a person and guillotining etc. In India, death penalty is executed by both hanging and shooting.
Table of Contents
- CAPITAL PUNISHMENT – IS AN INTEGRAL PART OF CRIMINAL JUSTICE SYSTEM?
- LEGAL POSITION IN INDIA
- INTERNATIONAL POSITION
- CONCLUSION
In the present era, a concept of death penalty has been given a new meaning by the criminal justice system.
LEGAL POSITION IN INDIA
It is pertinent to note that despite a declaration of moratorium against death penalty by UN General Assemby, India retains Capital Punishment as a highest degree of Punishment. A case titled “Bachan Singh V State of Punjab, AIR 1980 SC 898” where the question of constitutional validity of death penalty was brought before the Supreme Court. By answering to this question Supreme Court laid down the “Doctrine of rarest of rare cases” and held that the death penalty must be executed only in rarest of rare cases by following the life imprisonment as a rule and death sentence as an exception. The Hon’ble Justice P.N Bhagwati also cited the quote of Bernard Shaw “Criminals do not die by the hands of the law”. They die by the hands of other men.
In India “doctrine of rarest of rare” is considered as a yardstick for granting capital punishment. The case of Nathuram Godse is the first instance of rarest of rare nature in India.
The Law Commisision of India in its 35th and 262nd Report had also recommended for the abolition of death penalty in order to eliminate criminals and maintain peace in the society.
There are several offences under Indian Penal Code, 1860 where death penalty is awarded as a punishment such as waging war against the Government of India (section 121), Murder (302), Abetment of mutiny (section 132), Infliction of an injury which cause death of a victim or resulting in a persistent vegetative state of a victim (sec 376A), Rape of a woman under 12 years of age (sec 376AB), Abatement of sucide of child or insane (section 305) etc.
In some other statutes also, this severe form of punishment has been provided such as Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, The Protection of Children from Sexual Offences (POCSO) Act, 2012, Narcotic Drugs and Psychotropic Substances Act, 1985 and Unlawful Activities (Prevention) Act, etc.
In India there are several offenders to whom death penalty was sentenced and executed such as Dhananjoy Chatterjee in 2004 (convicted for murder and rape), Mohammad Ajmal Amir Qasab in 2012 (Mumbai blast), Muhammad Afzal Guru in 2013 (parliament attack), Yakum Memon in 2015 (Mumbai blast), Mukesh kumar Singh, Pawan Gupta, Vinay kumar Sharma and Akshay Kumar Sharma in 2020 (rape convicts) .This was the first time in India four convicts were hanged at the same time.
INTERNATIONAL POSITION
Death Penalty is widely criticized in many international documents and consider it as a cruel and inhuman form of punishment. There are various international treaties and obligations which talks about the abolition of death penalty such as:
- Under United Declaration of Human Rights which was adopted by UN in 1948, Article 3 provides life as a human right and that makes the death penalty as a violation of human right.
- The Second Optional Protocol to the International Covenant on Civil and Political Rights(ICCPR) also provides for the abolition of the death penalty.
- Protocol No.6 to the European Convention also mention about the abolition of death penalty.
- Article 37(a) of the Convention on the Rights of the Child explicitly prohibits the use of the death penalty against persons under the age of 18.
CONCLUSION
No doubt, the idea of the legislature behind imposing death penalty for heinous crimes is to serve an example for would–be criminals so that fear of death might prevent them from committing such heinous crimes. But the question that comes in everybody’s mind is does death penalty actually act as a deterrent? The answer is, it failed. If this highest degree of punishment is actually acting as a deterrent in the society, then the data of crime would not have been rising, rapes would not have been occurring. Practically, there is no relation between fear of death and occurrence of crime. One of the most common argument against the concept of death penalty is that it is the most degrading form of punishment and is a violation of human right. If taking a breath of an offender away is a moral wrong then crime against the victim is a violation of human right. Undoubtedly, yes the number of years spent by convicted persons in jail waiting for the execution of death penalty is itself the violation of human right. A topic of capital punishment has always been a debatable topic and at present its application is restricted to the rarest of rare cases only.