Mains Articles

Capital Punishment [Mains Article]

In India, the provisions relating to Capital punishment are embodied in Indian penal code and Criminal procedure code. However, it is the need of the hour to abolished death penalty.
By IT's Mains Articles Team
August 07, 2019

Contents

  • What is a Capital Punishment?
  • Background
  • Offences punishable by death in India
  • Role of International organizations in supporting removal of capital punishment
  • Global capital punishment scenario
  • Capital Punishment in International Human Rights Treaties
  • Challenging constitutional validity
  • Arguments in favor of Capital punishment
  • Arguments against Capital punishment
  • Conclusion

Capital Punishment

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What is a Capital Punishment?

Capital-Punishment-1-IASToppers

  • A Capital Punishment or Death sentence is a legal process where a person is put to death by the state as a punishment for a crime committed by him/her.
  • It is the highest degree of punishment that can be awarded to an individual under any penal law in force in any part of the world.
  • In India, section 368 of the Criminal Procedure Code gives the power of confirmation of death sentence to the High Courts.

Background:

  • During the time of empires in India, the ruler of a certain state was the ultimate authority and the source of all justice. The ruler, thus had the power to condemn any man to death whoever may he or she be, even on a whim.
  • In the British era also, there have been countless instances of Indians being hanged after trial or even before it.
  • However, after 1947 when India became a democratic state, the system of awarding death penalties changed drastically.
  • The Indian Penal Code in accordance with the provisions enshrined in the Constitution of India provided for awarding of capital punishment for certain specific offences only.
  • Article 21 of the Constitution, which guarantees to every citizen the fundamental right to life, also expressly states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
  • Hence, not all offences are punishable by death, in fact, most of the agencies do not elicit capital punishment; instead, it is only reserved for the most heinous of crimes.

Offences punishable by death in India:

According to the Indian Penal Code along with other acts eleven, offences committed within the territory of India are punishable by death:

Section under IPC or any other Act

Offense

120B

Being a party to a criminal conspiracy to commit a capital offence

121

Waging, or attempting to wage war, or abetting waging of war, against the Government of India

132

Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny

194

Giving or fabricating false evidence with intent to procure a conviction of a capital offence

302, 303

Murder

305

Abetting the suicide of a minor

364A

Kidnapping, in the course of which the victim was held for ransom or other coercive purposes

376A, Criminal law amendment act, 2013

Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender

396

Banditry with murder – in cases where a group of five or more individuals commit banditry and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.

Part II, Section 4 of Prevention of Sati Act

Aiding or abetting an act of Sati

31A of the Narcotic Drugs and Psychotropic Substances Act

Drug trafficking in cases of repeat offences

 

Role of International organizations in supporting removal of capital punishment

  • Well known International human rights organizations such as Amnesty International, European Centre for Human Rights (ECHR), have constantly been striving to achieve the goal of worldwide abolition of death penalty for any offence.
  • One of the major achievements of the international human rights organizations has been the passing of Juvenile Justice (Care and Protection of Children) Act, 2000. Before the passing of the Juvenile Justice Act in 2000, although never practised, the law allowed people under the age of 18 to be hanged.
  • Moreover, United Nations is also making efforts to abolish the death penalty.
  • In the year 2007, the UN proposed to all its member nations to put a stop on awarding death penalty in their respective states for any kind of offence. However, India firmly rejected the proposal.
  • In 2018, the UN adopted its seventh resolution for abolishing this punishment. However, India again vote against the resolution.

Global capital punishment scenario

Global capital punishment IASToppers

  • According to Amnesty International, in 2017, 142 countries had abolished the death penalty in law or practice.
  • Burkina Faso abolished the death penalty in its Penal Code in June 2018. In 2018, Gambia and Malaysia declared an official moratorium on executions.
  • In 2018, most known executions took place in China (highest executions), Iran, Saudi Arabia, Viet Nam and Iraq. Excluding China, 78% of all reported executions took place in just four countries: Iran, Saudi Arabia, Viet Nam and Iraq.
  • Several countries saw a rise in executions, including Belarus, Japan, Singapore, South Sudan and USA.
  • At least 690 executions were known to have taken place globally in 2018 which is a decrease of 31% compared to 2017 and reached the lowest figure in the past decade.
  • In 2018, Indian courts imposed 50% more death sentences than in the 2017 (162 from 108). which is the highest number of death sentences imposed in nearly two decades.

globle IASToppers

Which countries have abolished or retained Capital punishment?

Capital Punishment IASToppers

Capital Punishment in International Human Rights Treaties

International-Covenant-on-Civil-and-Political-Rights IASToppers

  • The International Covenant on Civil and Political Rights (‘ICCPR’) is one of the key documents discussing the imposition of death penalty in international human rights law. The ICCPR does not abolish the use of the death penalty, but Article 6 contains guarantees regarding the right to life.
  • The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty is the only treaty directly concerned with abolishing the death penalty, which is open to signatures from all countries in the world. It came into force in 1991, and has 81 states parties and 3 signatories.
  • Similar to the ICCPR, the Convention on the Rights of the Child (‘CRC’) explicitly prohibits the use of the death penalty against persons under the age of 18.

capital punishment 12IAStoppers

  • The Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (‘the Torture Convention’) and the UN Committee against Torture have been sources of jurisprudence for limitations on the death penalty as well as necessary safeguards. The Torture Convention does not regard the imposition of death penalty as a form of torture or cruel, inhuman or degrading treatment or punishment (‘CIDT’). However, some methods of execution have been seen as forms of CIDT by UN bodies.
  • In the evolution of international criminal law, the death penalty was a permissible punishment in the Nuremberg and Tokyo tribunals, both of which were established following World War II. Since then, however, international criminal courts exclude the death penalty as a permissible punishment.

Of the treaties mentioned above, India has ratified the ICCPR and the CRC, and is signatory to the Torture Convention but has not ratified it.

Challenging constitutional validity

  • The constitutional validity of the death penalty has been challenged many times but the decision has remained same to not to abolish capital punishment.
  • It was first challenged in Jagmohan v. State of Uttar Pradesh in which the Supreme Court upheld its validity stating that the capital punishment cannot be abolished in the public interest as it violates Article 19 of the Constitution.
  • The 20th Law Commission in 2015, under the chairmanship of Justice A. P. Shah, recommended the abolition of death penalty except in terror related cases. However, the commission did not recommend this abolition immediately, but in a way that its complete abolition can be brought about in the near future.
  • In Bacchan Singh v. The state of Punjab, the Supreme Court made it clear that the death penalty could only be awarded in the ‘rarest of rare’ cases which shows the intention of the court to minimize the practice of awarding capital punishment. This judgement became a benchmark for all the courts in India on which they were to base their decisions of giving death sentences in cases where the guilty had committed a capital offence.

Arguments in favor of Capital punishment

  • A guilty must be punished proportionate to the severity of the crime.
  • Giving a killer the death sentence will stop others doing such serious crime.
  • The very small chance of executing the wrong person is balanced by the benefits to society of putting off other murderers.
  • Death sentence in India should be there in the statute books to contain terrorism.
  • Capital punishment is an act of justice and not an act of vengeance.
  • As per Japanese, the death penalty reinforces the belief that bad things happen to those who deserve it. This reinforces the contrary belief that good things will happen to those who are good.

Arguments against Capital punishment

103-death-penalty-debate-IASToppers

  • Everyone has a right to live, even those who commit murder, sentencing a person to death and executing them violates that right.
  • Innocent people might get killed because of mistakes or flaws in the justice system.
  • Every State has the sovereign right to determine its own legal system and appropriate legal penalties.
  • Some capital crimes are committed in such an emotional state that the perpetrator did not think about the possible consequences.
  • Capital punishment is vengeance rather than retribution and is a morally dubious concept.
  • Death sentence has not served as a deterrent to control crime.
  • Death sentence violates international human rights laws.
  • Many executions are botched and thus produce excessive and unjustified pain and torture.
  • Most nations have banned capital punishment, and those nations that still employ it are often very authoritarian and brutal nations.

Conclusion

  • Justice means reform. The death penalty denies the opportunity to reform. Hence, by abolishing of capital punishment, India can take one more step forward towards civilization and social maturity.
  • At the end, it is up to the Judiciary and legal experts to decide the validity of the death penalty in today’s world.

 

 

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