LEGALITY OF CAPITAL PUNISHMENT

Author: Astha Rao, Amity University Noida

Editor: Vaibhavee Jaipuriar, Sharada University Noida



Introduction to capital punishment:

Every one of us is familiar with the term punishment but very few are familiar with the legal terminology “Capital Punishment”, this is the sanction of the death the penalty was given to an individual for criminally breaching the law/laws. In addition to these laws and methods regarding the death penalty varies from county to county some hang till death some shoot while some give a lethal injection. In this article, we are going to specifically look into what condition capital punishment is given to a person in different countries and exceptions/conditions.

Capital punishment : prior and present time:

Capital punishment has been used as a method to deter crime since the earliest societies. As tribal societies advanced into social classes and people created their own self-governed rules, capital punishment became a common punishment for a number of crimes, including treason, sexual assault, and military offenses. The Code of Hammurabi is one of the most primitive written documents that supported capital punishment, it was written on stone tablets around 1760 BC. There were 282 laws that were collected by the Babylonian King Hammurabi, comprising the theory of an “eye for an eye.” Numerous other ancient documents have supported the existence of capital punishment, including the Christian Old Testament, the Jewish Torah, and the writings of an Athenian legislator named Draco, who imposed capital punishment for a variety of crimes in ancient Greece.

Early methods of the death penalty were designed to be torturous, slow, and painful. Later civilizations found these ways to be unusual and cruel and searched for more humane practices. During the 18th and 19th centuries, less painful and faster approaches to capital punishment, including beheading with the guillotine and hanging were used.

Now, capital punishment has become more controversial globally. Those against capital punishment are of the opinion that the practice is unfair and inhuman.

Why do we need capital punishment:

Capital punishment has been used as a method to deter crime since the earliest societies. As tribal societies advanced into social classes and people created their own self-governed rules, capital punishment became a common punishment for a number of crimes, including treason, sexual assault, and military offenses. The Code of Hammurabi is one of the most primitive written documents that supported capital punishment, it was written on stone tablets around 1760 BC. There were 282 laws that were collected by the Babylonian King Hammurabi, comprising the theory of an “eye for an eye.” Numerous other ancient documents have supported the existence of capital punishment, including the Christian Old Testament, the Jewish Torah, and the writings of an Athenian legislator named Draco, who imposed capital punishment for a variety of crimes in ancient Greece.

Nirbhaya rape case:

Background:

“Nirbhaya” is a pseudonym used for the rape victim of the infamous that took place on 16th December 2012, the Delhi gang-rape incident one of the December chilly night of the Delhi Nirbhaya and her friend (male) were waiting for going home but they weren’t getting any conveyance for that so after sometime spotting the private bus they both decided to lead to home by boarding on that bus. They were assaulted on the moving bus by six males and one of whom was a minor aged 17 years

The friend when he tried to save Nirbhaya he was brutally beaten up, and Nirbhaya was not just brutally raped but also her body was violated her body was mutilated beyond the human imagination her intestine was pulled out of her private organs and then thrown out of the moving bus. Later after a few days of being hospitalized, she died of multiple organ failure and cardiac arrest.

Held:

The five accused were awarded by capital punishment by the trial court in 2013 and one of them was a juvenile (17 years) at the time of the attack and was awarded to serve 3 years in the juvenile reforms and therefore it was the maximum punishment that could be awarded to him.

Conclusion:

The minor accused who raped the victim twice violated her body with an iron rode was awarded to serve 3 years in juvenile reforms and therefore was only 5 months short of 18 years of age and though this was the maximum punishment that could be awarded to him by the juvenile board according to the Juvenile Justice (Care and Protection of Children) Act, 2000 which clearly states that the age of the accused on the date of crime only matters not the age on the day of verdict though the verdict unleashed the anger from the Indian citizen and specifically from the parents of Nirbhaya, as the crime clearly came under the doctrine of “rare of the rarest crime” and the minor should have been ruled under the criminal acts, but this is understandable that judges can’t give the verdict how they feel about the case, nature of the crime, and the accused they are bound by the laws and the Indian law doesn’t allow the judges to award capital Punishment to a juvenile

Capital Punishment for Juveniles:

Internationally, the execution of juveniles is mainly considered anachronistic, inhuman, and clashes with fundamental principles of justice. The International Covenant on Civil and Political Rights bans the execution of juveniles.[1]

In a 2005 case, Roper v. Simmons, the Supreme Court of the United States ruled that the execution of those who were under 18 at the time of committing offence violates their federal constitutional guarantee against cruel and unusual punishments.[2] Since 2009 only three countries, namely – Sudan, Saudi Arabia and Iran are known to have executed an individual for a crime committed by him before the age of 18.[3]

The Juvenile Justice (Care and Protection of Children) Act, 2015, lays down that if a minor who is above or has completed sixteen years of age is involved in a heinous crime then he can be treated as adult.[4]

Capital punishment to pregnant woman:

Pregnant woman and their unborn has been historically given some special considerations in the law and in the country’s policies. The universal declaration of human rights speak in its preamble about ‘undeniable rights to all member of the human and human families’and states in Article 3 that everyone has their ‘Right to Life’

The protection and care of pregnant women and their unborn child is specifically mentioned in the United Nation documents also.

Capital Punishment and the Mentally Retarded Offenders:

According toc Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR): “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life The practice of executing people with mental retardation is abhorrent. In recent times, the U.N. special rapporteur in the summary, extrajudicial or arbitrary executions has received reports regarding the execution of people with mental retardation in only three countries namely, the United States, Kyrgyzstan, and Japan.[1]In a 2002 case, Atkins v. Virginia the Supreme Court of United States held that it would be cruel and unusual punishment to impose death penalty on people with intellectual disability.[5]

Constitutionality of Capital Punishment: Indian Aspect:

The Indian Penal Code, 1860 provides for the death sentence for a number of offenses. However, the offender still gets multiple opportunities to appeal against the same. The Sessions Court when awards the death penalty as punishment needs confirmation from the High Court under section 368 of the CrPC. Despite that, the offender may file an appeal in the Supreme Court of India. In case this attempt also fails, he can still submit a ‘mercy petition’ to the Governor of the State under Article 161 or the President of India under Article 72 has the power to grant the offender pardon. These provisions make sure that no room for error is left when an accused is sentenced to death.

Landmark Judgements:

The constitutional validity of the capital punishment has been challenged in a plethora of cases. It was first challenged in the case of Jagmohan v. State of Uttar Pradesh. In this case, the counsel for the appellant had put forward the following arguments –

1.Execution abridges all the fundamental rights enlisted under Clauses (a) to (g) of Article 19(1) and, hence the law relating to the capital sentence is unreasonable and not in the public interest.

2.Uncontrolled discretion of Judges to award capital punishment is hit by Article 14 because if two persons are found guilty of murder on similar facts they can be treated in two different ways, one with the death penalty and the other with a sentence of life imprisonment.

3.Legal provisions do not provide a procedure for trial of circumstances essential for making the choice between imprisonment for life and capital punishment. Because of the absence of any procedure established by law, the protection which is given by Article 21 is violated, and therefore capital punishment is unconstitutional.

After considering the arguments the Court upheld the validity of capital punishment and held that it does not violate Article 19, 14, and 21. The Court said that deprivation of life is constitutionally permitted as it was recognized as a permissible sentence by the drafters of our Constitution.

However, Justice Krishna Iyer, in the case of Rajendra Prasad v. State of Uttar Pradesh[6] mentioned two things that are required to impose death penalty –

i. It must be imposed in the extraordinary circumstances.

ii. The reason for imposing the death sentence must be recorded.

In Mithu v. State of Punjab[7] the mandatory death sentence under Section 303 was held unconstitutional. The Judges were of the opinion that Section 303 violated the Articles 14 and 21 and hence, it was deleted from the IPC.

In Bachan Singh v State of Punjab[8] the question of the validity of the capital punishment was again brought up. The doctrine of “rarest of the rare cases” came into existence in this case. The majority held that capital punishment does not violate Article 19 and 21 and that death penalty can only be constitutional when it is imposed as an exceptional penalty in the rarest of the rare cases.

Conclusion:

There is no doubt that every human life is precious. But Capital punishment is the extreme penalty imposed by the Courts and is given in very rare cases. Even in In India, there have been many instances where the sentence of the death penalty has been commuted to life imprisonment. Capital punishment may be abolished in extremely advanced countries where citizens are normally law-abiding or the state has resources to correct the behavior patterns of the offenders, but not otherwise. Harsh punishment like the death penalty is required in contemporary society. The death penalty acts as a deterrent, as death is the greatest fear of an individual. However, the sentence of capital punishment must not be awarded arbitrarily, the due procedure of law ought to be followed and there shouldn’t be any scope for error left

[1] Juveniles and the Death Penalty, ACLU (Oct. 14, 2020, 6:52 PM), https://www.aclu.org/other/juveniles-and-death-penalty. [2] The Death Penalty for Juveniles, Capital Punishment in Context (Oct. 14, 2020, 7:18 PM), https://capitalpunishmentincontext.org/issues/juveniles#:~:text=In%20a%202005%20decision%20called,against%20cruel%20and%20unusual%20punishments. [3] Iran, Saudi Arabia, Sudan: End Juvenile Death Penalty, Human Rights Watch (Oct. 14, 2020, 7:36 PM), https://www.hrw.org/news/2010/10/08/iran-saudi-arabia-sudan-end-juvenile-death-penalty. [4] Astha Mishra, Adult time for adult crime – The road to juvenile justice, SCC Online (Oct. 14, 2020, 7:52 PM), https://www.scconline.com/blog/post/2018/01/31/adult-time-adult-crime-road-juvenile-justice/. [5] Why People with Intellectual Disability Are Exempt from the Death Penalty, Death Penalty Information Center (Oct. 15, 2020, 8:30 AM), https://deathpenaltyinfo.org/policy-issues/intellectual-disability/why-people-with-intellectual-disability-are-exempt-from-the-death-penalty. [6] Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 S.C 916. [7] Mithu v. State of Punjab, 1980 2 SCC 684. [8] Bachan Singh v State of Punjab, AIR 1980 SC 898.

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