CAPITAL PUNISHMENT: PROS & CONS. WHEN AND WHY IT CAN BE JUSTIFIED?

This article is written by Shazia Parveen, an intern under Legal Vidhiya

Abstract

To punish offenders, protect the rights of victims, and remove potentially dangerous people from society so they won’t commit another crime, the government and courts apply the death penalty. Since the Stone Age, when rulers were thought of as the personification of justice and order in the community, this aspect of civilisation has existed. A death sentence has consequences that are unavoidable and irreversible. China is the country that executes the most people yearly. In India, only those who have committed the worst crimes are given the death penalty. The author consults trustworthy, unbiased sources, facts, and subject-matter experts to refute or support a claim. The study provides examples and quotations to support the researcher’s conclusions.

Keywords: capital punishment, death penalty, deterrence, justice

Introduction

In this research paper, we are diving deep into the controversial and complex subject of capital punishment, also known as the death penalty. It’s a topic that sparks passionate debates and raises important questions about justice, morality, and the role of the state in punishing offenders. Supporters of capital punishment argue that it acts as a strong deterrent, dissuading potential criminals from committing heinous acts due to the fear of facing the ultimate punishment. They believe that it sends a powerful message to society that certain crimes will not be tolerated, and that justice is being served. Additionally, propionates assert that the capital punishment provides closure and a sense of justice to the families of victims, offering them some form of solace and closure. However, opponents of the capital punishment raise significant concerns about its ethical implications and potential for irreversible errors. They argue that taking a life as punishment violates the fundamental right to life and constitutes cruel and inhumane treatment. The possibility of wrongful convictions and the inherent biases within the criminal justice system also raise doubts about the fairness and equity of capital punishment. Moreover, studies examining the deterrent effect of the death penalty have produced conflicting results, with some suggesting that it has no significant impact on crime rates. Critics also highlight the disproportionate application of capital punishment, with racial and socioeconomic biases playing a role in who receives the ultimate punishment. By exploring both sides of the argument, this research paper aims to provide a comprehensive understanding of the complexities surrounding capital punishment.

Capital punishment in India

The seriousness of the crime committed should be used to establish the severity of the punishment. Punishment for offenders must be met with the same amount of severity from their victims. Among other justifications, the Indian death sentence explains the barbarism of the people who live under it. Following the principle provides roughly as many benefits as drawbacks. You may make a case for either position. A death sentence may be carried out in a variety of ways. Legal means of execution include hanging, lethal injection, electrocution, suffocation, and gas inhalation. Lethal injection, electrocution, and beheading are some further methods of execution. The current most compassionate form of execution is this one.

As previously noted, the death penalty is a form of capital punishment that the state may impose for major offenses. It is also known as the death penalty, because it is best carried out by having the offender put to death. Criminal activity and criminals can be found everywhere. There is not a single nation that has a crime rate of zero percent; as a result, punishments are always associated with crime, and capital punishment is always associated with the most horrific crimes. The imposition of the death sentence not only brings justice to those who are suffering, but it also establishes a precedent that wrongdoers will be held accountable for their actions.

One may argue that applying the capital punishment goes against Article 21 of the Indian Constitution, which states that no one may be deprived of their life or personal liberty except in accordance with a legal process. However, this argument ignores the larger goal of providing justice to those who have suffered while also punishing those who have committed such serious and heinous crimes. The Code of Criminal Procedure, 1898, which came into effect in 1898, came into play when tracing back to the statutes that defined death punishments for specific offenses, as under Section 367(5). Additionally, judges were compelled to provide a written explanation as to why they decided against passing an order for the death penalty if they felt the need to do so. Later in 1955, Section 367(5) of the Code of Criminal Procedure was repealed, and as a result, the courts were no longer obligated to provide justifications for not applying the death penalty. Following this, a further amendment was made in 1973 that once again mandated that judges must provide justification for any orders imposing the death sentence or life imprisonment for a specific period of time.[1]

Supreme court on validity of capital punishment in India.

Article 21 of the Indian constitution ensures the fundamental right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law. This has been interpreted legally to suggest that the state may take someone’s life by enacting a law if there is a method that is just and valid. The Supreme Court has also confirmed the constitutional legitimacy of the death penalty in “rarest of rare” situations, despite the central government’s insistence that it would keep the death penalty on the books as a deterrent and for individuals who pose a threat to society. The Supreme Court upheld the constitutionality of the death penalty in the cases of Jagmohan Singh v. State of Uttar Pradesh [2](1973), Rajendra Prasad v. State of Uttar Pradesh [3](1979), and Bacchan Singh v. State of Punjab [4](1980). It was said that a convict may receive the death sentence if the death penalty is permitted by law and the process is fair, just, and reasonable. However, this will only occur in the “rarest of rare” circumstances, and the courts should provide “special reasons” before hanging someone.

Criteria for Rarest of Rare

The highest court established the guidelines for what would qualify as the “rarest of rare” in its historic decision in Bacchan Singh v. State of Punjab. The Supreme Court established certain broad illustrative parameters and stated that it should only be granted when the possibility of imposing a life sentence is “unquestionably foreclosed.” This judgment was made entirely at the discretion of the court. The apex court did establish the concept of evaluating aggravating and mitigating circumstances, though.   It is necessary to create a balance sheet of the aggravating and mitigating factors in a specific case to determine if justice would be served by any punishment other than the death penalty.

• In the case of Dhananjoy Chaterjee v. State of West Bengal he was accused of raping and then murdering a 14-year-old girl, Hetal Parekh. Dhananjoy was a security at the flat where the victim resided. The girl was raped and afterwards choked to death, according to the official judgment. Because the guard was in charge of the society’s and its residents’ protection, the judiciary deemed the offense to be among the “rarest of rare.” The accused was supposed to be hanged on June 25, 2004, but his family appealed for mercy, and the then-President of India, A.P.J. Abdul Kalam, rejected it. On his 39th birthday, he was finally hanged in Kolkata’s Alipore Central Jail.
• In the case of Mohammad Ajmal Amir Kasab v. State of Maharashtra Ajmal Kasab was a part of the group that was responsible for the infamous 26/11 attacks in Mumbai. The media in our nation actively followed this case, which is likely why it was expedited. An11,000-page charge sheet was filed against Kasab which made a strong case against him. He kept changing his statement from time to time and moved up to the Supreme Court pleading for mercy. President Pranab Mukherjee upheld the judgment of capital punishment on the November 5,2012 and he was hanged to death on November 21, 2012.
• In the case of Afzal Guru. On December 13, 2001, he was allegedly the mastermind of the attacks on the parliament. Eight security guards and a gardener were killed in a five-armed terrorist attack on the Indian Parliament. A media representative was also shot during the attack and eventually died as a result of their wounds. Afzal was tracked down and apprehended on December 15, 2001, thanks to the Delhi Police’s special unit, which was given the case. He entered a guilty plea in front of the media, but afterwards withdrew it, saying that the police had put pressure on him to do so. He was ultimately given a death sentence by a special court established under the Prevention of Terrorism Act on December 18, 2002. Due to various pleads and protests the case went on till February 6, 2013, when his plea was rejected by president Pranab Mukherji. His execution was a carried out as a secret mission on February 9, 2013[5]

Pros and cons of capital punishment

i. Pros.

a. Strong deterrence to criminals

It is crystal apparent that criminals who commit extremely horrific offenses would be subject to the law’s highest punishment, which may include execution, because the death penalty is only used in the most serious situations. It conveys a clear message and deters individuals from acting illegally.

b. Expenses incurred

The death penalty is sometimes seen as a more cost-effective option for dealing with those responsible for exceptionally horrific crimes due to the significant cost of running prisons, insuring the safety and well-being of inmates, as well as monitoring those on parole.

c. Stops the continuance of crimes

If a punishment as severe as the death sentence is eliminated, there is a good chance that crime rates will increase. According to reports, the death penalty was resurrected after a seven percent increase in crime following its abolition in the 1960s. Therefore, such a harsh penalty is required to stop the repetition of offenses of this nature.

d. No threat of an escape

While serving their sentences, prisoners frequently attempt to escape, although they typically fail. However, if they manage to get away, they could once more murder people in broad daylight, making it crucial to take out the threat by catching the murderer. You must consider the fact that he is the same individual who murdered someone else, even if you think murder is terrible.[6]

ii. Cons.

a. Continuance of the violence cycle.

The death sentence is typically only imposed for the most heinous and violent offenses, like murder, yet it is obvious that this punishment just serves to feed the cycle of violence. Since it entails murdering the murderer, the death penalty appears to be a harsh punishment for a murder conviction. This fact has led many to argue that the death sentence is, by definition, violent.

b. What if the judiciary is mistaken?

It is possible that an innocent person could be falsely charged, tried, and sentenced to death based on faulty or insufficient evidence. Even if a person receives the death penalty and is later shown to be innocent, there is no way to reverse it. Instead of being released, the same person may have filed a claim for compensation for his unjust imprisonment and continued living his life if he had been imprisoned.

c. No chance of rehabilitation

In situations where the offender lacks the mental capacity to understand the seriousness of his conduct, rehabilitation and a series of consultations should take the place of immediate punishment. In such circumstances, the death penalty would be excessive because it is likely that the offender lacked mens rea (guilty mentality) at the time of the crime. As a result, the death penalty deprives those who merit it of a second chance.

Cruel in its form

The act of taking another person’s life is rare in and of itself. It would be more than just cruel to punish someone in such an unusual and brutal way as this. Although criminals should be punished, life in prison is a more humanitarian alternative to the death penalty.[7]

WHEN AND WHY IT CAN BE JUSTIFIED

The increase in horrific offenses is sufficient evidence to support the capital punishment. Only the execution of the criminal may justify the violent murder, rape, and sexual assault of young children, young girls, elderly women, and other heinous crimes. Such crimes are indicative of the mindset of the perpetrators, and if they are not put to death, they pose a menace to society. Prison does not adequately ease the suffering of the victims, and these criminals ought to be executed in order to serve as an example for the rest of society. Despite the existence of both natural and human rights, it is impossible to demonstrate humanity with someone who has engaged in inhuman actions. The 2012 rape case in India was so terrible that it destroyed all humanitarian justifications. In this instance, the state’s granting of the death penalty constitutes a humanitarian act. There was no other penalty that would have been appropriate in this situation. Due to their inability to alter their tendencies, these prisoners cannot be socialized.

The second idea is that execution will reduce the likelihood of recidivism, which is a global social and political problem. The strong punishment establishes a standard in society and instills dread in violators. Due to overpopulation, a lack of jails, and management, many authorities find it challenging to keep their inmates. Because they may readily flee, these criminals continue to pose a threat to society. The crimes for which the death penalty is applied are referred to as capital offenses. These offenders easily escape and therefore remains a continuous threat to the society. The crimes in which capital punishment is granted are called as capital offences. These offences are barbaric and brutal which is disturbs the societal peace. It creates fear in the innocent humans. Therefore, law of retaliation has to be again and again be practiced so that the society keep their trust on the government and these criminals do not get motivation for repetition of the same crime[8]

Conclusion

The capital punishment is not a novel idea. however, has evolved along with modern civilization. In the past, brutality was used to defend brutality; today, adopting a less cruel manner of execution does the same. According to the crime they committed, the perpetrators should receive the appropriate punishment. The death penalty is not a social evil. The brutal criminals are a threat to society; therefore their demise has no negative effects on the environment but instead fosters confidence in the government. Both arguments for and against the hypothesis are considered. Other religions are against it for humanitarian reasons, while some sects favor it on the basis of victim justice. Although the reformative hypothesis is preferred by most people to the deterrence idea But when there is cruelty, deterrent is required. Every state has the right to uphold its philosophy, but this discussion will never end.

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[1] https://dejurenexus.com/wp-content/uploads/2021/03/Capital-Punishment-Pros-and-Cons.-When-and-Why-it-can-be-justified-By-Cherie-Dharmani.pdf( visited on 25 august 2023)

[2] Jagmohan Singh v. State of U.P., 1973 AIR 947, 1973 SCR (2) 541.

[3] Rajendra Prasad v. State of U.P., 1979 AIR 916, 1979 SCR (3) 78.

[4] Bachan Singh v. State of Punjab, AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

[5] https://www.studocu.com/in/document/tilak-maharashtra-vidyapeeth/ba-llb/capital-punishment-pros-and-cons-when-and-why-it-can-be-justified/26078404( visited on august 24, 2023)

[6] https://dejurenexus.com/wp-content/uploads/2021/03/Capital-Punishment-Pros-and-Cons.-When-and-Why-it-can-be-justified-By-Cherie-Dharmani.pdf(  visited on 25 august 2023)

[7] https://ignited.in/I/a/306153( visited on 25 august 2023)

[8] https://www.ijlsi.com/wp-content/uploads/Capital-Punishment-Pros-and-Cons-When-and-Why-it-can-be-Justified.pdf (visited on 26 august 2023)