DEATH PENALTY: A COMPARATIVE ANALYSIS By - Rohan Kumar & Swet Nisha

DEATH PENALTY: A COMPARATIVE ANALYSIS

                      

Authored By - Rohan Kumar, Student,

& Swet Nisha, Student,

Amity law school,

Amity University, Patna

Email id: sumitrohankumar@gmail.com

Email id: swetnisha1237@gmail.com

                                                                                                                                                                                                                                                                                   

Abstract:

 In a democratic society, “capital punishment” or “death penalty” is the highest level of punishment awarded in order to maintain law and order situation and to ensure peace and tranquility. But killing of another human being in the name of justice is in fact, considered as murdering someone. Focus should be on eliminating the crime not the criminal. The only country in the world, china, where the practice of death penalty is still at its peak with over 1000 executions every year, whereas in India doctrine of “Rarest of the Rare” is followed and often death sentence gets commuted to life imprisonment. But India has still executed 4 criminals between the period of 2002 to 2015.Both the countries have various similarities when we talk about procedure and law of capital punishment, but in China once the death penalty is awarded it cannot be revoked. This is why United Nation (UN) opposed the concept of death penalty and stated that “Life is precious, and death is irrevocable”. Further UN also said that in the name of justice killing another human being also kills the fact that we are human. Who gets to live and who gets to die, we are no one to make such decision. God has the sole authority to decide on the matter. Instead of hanging someone to death we should adapt an alternative approach i.e. the reformative approach so that one could get a chance to improve himself and can live a peaceful life thereafter.    

                                          Capital Punishment is basically the state-sanctioned killing of a person for a crime. Since the British time, Capital Punishment or the death penalty has been part of our judicial system and still a legal form of punishment for crimes in India. While 109 countries across the globe have abolished Capital Punishment, 55 countries still retain capital punishment, few other countries do not practice it but they have provisions of Capital Punishment in their judicial framework. Countries like India, Pakistan, China, the USA, and Japan have retained capital Punishment for certain crimes. 

         Key words: Capital punishment, pardoning power, Rarest of rare, Retribution, Deterrence.

                                                                                                                                                                                              

INTRODUCTION:

“We are all the creation of god. I am not sure a human system created by a human being is competent to take away a life based on artificial and created evidence”. - A.P.J. Abdul Kalam[1]

“Cesare Beccaria” was one of the most influencing people upon American attitudes toward criminal justice. Beccaria emphasized individual dignity and prosperity within the criminal justice system. He was vocal for the use of torture and capital punishment. He opposes capital punishment except under very restricted circumstances, and he contends that torture should never be used against an accused whose guilt has not been officially established. 

 

World Day Against the Death Penalty (10 October) is a day to advocate for the abolition of the death penalty and to raise awareness of the conditions and the circumstances which affect prisoners with death sentences. The day was first organized by the “World Coalition against the Death Penalty in 2003”. It has since taken place annually on 10 October[2].

 

 There is a provision of punishment when any person does any wrong, to make him realize that he has done something wrong, that he should not do. A small child who doesn't have any intention to do any wrong gets a punishment from his mother. So that he can get to know about the difference between a good act and a bad act, consequences of both is far differing from each other.
 All punishments incorporates the same motive i.e. Consequence for the offence must be severe. There are two main reasons for inflicting the punishment: One is the belief that offender should suffer, it is right and just to punish that person; the other is the belief that imposing punishment on wrongdoers discourages others from doing that wrongful act. Capital punishment also possesses the same motive[3]. 

 

 The term capital came from the Latin word “capitalis” which means head. Hence, in a capital crime beheading had been the punishment for accused. The capital punishment debate is a ongoing one and the most relevant debate in our society. As the human rights concerns are increasing in the countries, the existence of capital punishment has been questioned as immoral. However, it is an odd argument that by keeping one person alive at the cost of the lives of numerous members of the society and in fact, which is morally wrong.

      The recent country’s largest execution of 81 people by Saudi Arabia government on 12th of march 2022 bring back the topic of abolition of capital punishment especially from democratic country like India on the ground of human rights and moral principles[4].    

         

HISTORICAL BACKGROUND:

      In pre-independence India the punishments were given by the king of the area by giving them what they called “danda”. It was given to the people for the violation of “Dharma” that he or she may have committed. During that time, the punishment was given depending on caste a person belongs to as when caste was regarded as the parameter for their wealth and their status[5].  

 

                                   Until 1931, not a single objection was raised up in the British India's Legislative Assembly about the capital punishment, when Shri Gaya Prasad Singh, one member of the assembly from Bihar, introduced a bill to completely abolish the capital sentence for the offences under the Indian Penal Code, 1860. However, the then Home Minister, Sir John Thorne replied to the motion and clearly stated that The Government does not think that it is wise to abolish capital punishment for any type of offence for which that death punishment is now provided[6].  

During the period of independence, India retained most of the laws from the pre- colonial era, which included the Code of Criminal Procedure, 1898 (Cr.P.C.1898) and the Indian Penal Code, 1860 (IPC 1860). Section 53 of IPC, 1860 deals with the kinds of the punishments for the offender includes death penalty.  

    The existence of capital punishment was not new in the modern welfare world; its roots are found in the ancient history[7].  

 

 

 

Ancient methods                                                                               Current methods                                    1. Crushing by elephant                                                                    1. Hanging- India, Japan,  

                                                                                                          Singapore, Pakistan, Iran  

2. Blowing from gun                                                                         2. Shooting- Indonesia 

3. Burning                                                                                          3. Lethal injection- U.S.A,

                                                                                                              China, Thailand 

4. Poisoning                                                                                       4. Electrocution- Philippines,

                                                                                                                             U.S.A 

 5. Suffocation (sealed room)                                                             5. Gas inhalation- U.S.A, 

                                                                                                                   Nazi Germany

  6. Boiling to death                                                                             6. Beheading- Saudi Arabia

ANALYTICAL STUDY:

1. China[8]
   Capital punishment or death penalty is considered as a legal punishment in the People's Republic of China. Death penalty is mostly awarded to the offender of murder or drug trafficking and executions are carried out by lethal injection or gun shot.
   
   By both confirmed and estimated data available, the number of deaths from capital punishment in China is far higher than any other country, while it is comparable to Vietnam and Singapore, and lower than several other countries, including Saudi Arabia, Iran and Iraq. The number of executions has dropped steadily since 2007, when the Supreme People's Court regained the power to review all death sentences; for instance, the “Dui Hua Foundation” estimates that China has executed 12,000 people in 2002, 6,500 people in 2007, and roughly 2,400 in 2013 and 2014.

The exact numbers of people executed in China is classified as a state secret, intermittently death penalty cases are posted publicly by the judiciary in the certain high-profile cases that happen there. Other media houses have become outlets for confirming death penalty cases usually after a sentence has been carried out. In case of the inaccessibility to official data of the number of executions that has been executed within the death penalty system, Data compiled by NGOs such as Amnesty International are the most authentic and the most cited source of reports regarding number of executions and the rate at which it is done. Academic researchers must use the same during the study.

As much as 1718 executions have been taken place during 2008, according to Amnesty International, based on all information available. Amnesty International believed that the total figure was most likely to be higher than what is reported now.

 

1. United Kingdom[9]
   In United Kingdom, until the second half of the 20th century, capital punishment was used as a punishment. In 1964, “Peter Anthony Allen” and “Gwynne Owen Evans” were the last people executed in Britain. In 1965, capital punishment was suspended for murder and finally it got abolished in 1969. In 1965, as a public experiment, capital punishment was suspended to see does it work in such situation or not. In 1969, it was permanently abolished. Until 1998 when it was completely abolished, capital punishment for offences such as treason remained as a legally defined punishment.

 In 2004, 13th protocol to the European Convention on Human Rights was passed and since UK is a signatory to the convention so it became binding on it. This Protocol was prohibiting the restoration of the death penalty for as long as the UK is a member to the convention. The act Murder (Abolition of the Death Penalty) Act of 1965 is the law under which capital punishment is abolished currently.          

                                                  

1. India
   In India, under the Indian penal code 1860, the country’s main substantive penal legislation death penalty is a legal punishment and permissible for certain offences which are “rarest of the rare” in nature. The most recent executions in India took place in 2020, when four men who committed gang rape and murder of Nirbhaya hanged till death in Tihar Prison Complex in Delhi.
   The other mode for the execution of capital Punishment apart from hanging till death is shot to death, although it is given in rarest of the rare cases, the doctrine established by Supreme Court in various judgments. As a mode of punishment, capital punishment is given in many sections of the Indian Penal Code 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic Substances Act 1985, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act 1987, The Air Force Act 1950, The Army Act 1950 and The Navy Act 1957.                                                                  

 

ROLE OF RELATED AUTHORITIES

• Pardoning Power of President of India: Article 72[10]:

      Article 72 of the constitution empowers the president to grant pardons to persons who have been tried and convicted of any offence in where:

1.  Punishment or sentence is for an offence against a union law.

2. Punishment or sentence by a court martial.

3. Sentence is a sentence of death.

 

Pardoning power of the president includes:

1. Pardon- Removes both sentence and conviction and completely absolves the convict.

2. Commutation- substitution of harsher form of punishment to a lighter form. i.e. death sentence to rigorous imprisonment.

3. Remission- Reducing the period of sentence.

4. Respite- Lesser sentence in place of original one due to some fact i.e. disability, pregnancy.

5. Reprieve- stays on the execution of a sentence for a temporary period.

 

• Pardoning Power of Governor: Article 161:
  • The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. 

 

• • But the pardoning power governor differs from that of president in two respects:

a) Court martial    b) pardoning of death sentence  

STATUTORY PROVISIONS:

          Sections under IPC[11]

1. 1. 1. 1.  120 - Being a party to criminal conspiracy to commit a capital offence 
         2. 121- Waging, or attempting to wage war, or abetting waging war, against the Government of India 
         3. 132- Abetting a mutiny in the armed forces(if a mutiny occurs as a result), engaging in mutiny
         4. 194- Giving or fabricating false evidence with intent to procure a conviction of a capital offence
         5. 195A- Threatening or inducing any person to false evidence resulting in the conviction and death of an innocent person
         6. 302&303- Murder 
         7. 305(IPC)- Abetting the suicide of a minor
         8. 307(2) - Attempted murder by serving life convict 
         9. 364A- Kidnapping, in the course of which the victim was held for coercive purposes or ransom 
         10. 376A, Criminal Law Amendment Act, 2013- Rape if the perpetrator imposes injuries that result in the victim’s death or incapacitation in a persistent vegetative state or is a repeat offender 
         11. 376AB- Rape of a child below 12 years of age
         12. 376DB- Gang Rape of a child below 12 years of age
         13. 376E- Certain repeat offences in the context of rape 
         14. 396- Dacoity with Murder- in cases where a group of five or more individuals commits dacoity and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty 

 

 

Arguments: In Favour of the Death Penalty

• Retribution[12]: One of the key postulates of retribution is that people should get what they deserve which must be in proportion to the seriousness of their crime.
• Society has a moral obligation to protect and safeguard its citizens. By putting such person to death, society ensure that convicted killer don’t kill again.  
• Capital punishment is considered by society as a balance of good over evil.
• Deterrence[13]: Capital punishment is often justified with the proposition that by executing convicted murderers, we will prevent prospective murderers from killing people.
• By executing convicted murderers, it will deter them and the prospective criminals from killing people.
• There are several examples of persons condemned to death taking the opportunity of the time before execution to expiate, express remorse, and more often experience profound spiritual rehabilitation.
• Victims’ family largely support the death penalty.  

Against the Death Penalty Arguments

• The statistical evidence doesn’t confirm that deterrence works[14].
• Various methods used in executing criminals is not absolutely free from pain and torture.
• A man waiting in death house for reprieve experiences both physical pain as well as mental pain. The later is worse than the former. 
• Countries in Europe and America has abolished it although most of them with some qualifications. This is a proof of society can control criminal activity even without resorting to harsh punishments.
• Capital punishment is more expensive than the cost of maintaining prisoners even for long term.
• On the basis of sentimental objections to capital punishment are it is against spirit of humanity and it brutalises the human intellect.
• Execution of the Innocent[15]: The most common argument against capital punishment is that it is very likely that, innocent people may get killed, because of mistakes or flaws in the justice system.
• According to Amnesty International: As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.

Capital punishment is against the moral principle of absolute liberty and equality. Quotation of Mahatma Gandhi “an eye for an eye make the whole world blind” somehow justifies the above statement. Aristotle (father of political science) was against the capital punishment on the ground of moral imbibeness.

 

CASES AND JUDGEMENT:

  1. The Supreme Court ruled in Rajendra Prasad v. State of U.P. (1979)[16] that the death penalty would not be appropriate unless it could be proven that the defendant poses a serious and ongoing threat to social security. Three types of criminals, in the opinion of Justice Krishna Iyer, should get the death penalty:

(1) In cases of white-collar crimes,

(2) For crimes against the social order, and

(3) For eliminating a dangerous killer who possess harm to society. 

 2. The Supreme Court in Machhi Singh vs. State of Punjab (1983)[17] laid down some guidlines in which death sentences can be imposed. J. Thakkar spoke about five circumstances which are mentioned below:

“Firstly: Manner of Commission of murder – When the murder is committed in an extremely brutal manner which arouse intense and extreme indignation and anger in the community, for instance, when the house of the victim is set on fire to burn him alive when the body is chopped into pieces or the victim is subjected to inhuman torture.

Secondly: Motive – When the murder is committed for a motive that evinces depravity and meanness, e.g. a hired assassin, a cold-blooded murder to inherit property or gain control over property of a ward, or a murder committed for the betrayal of the motherland.

Thirdly: Anti-social or socially unacceptable nature of the crime – where a scheduled caste or minority community person is murdered in circumstances which arouse: social wrath; or bride burning for dowry, or for remarriage.

Fourthly: Magnitude of the Crime – Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community, or locality.

Fifthly: Personality of the victim of murder.”

The question of whether or not the death penalty is constitutionally valid has been answered in Rajendra Prasad vs. State of Punjab (1979), to which Justice Krishna Iyer empathetically stressed on the fact that the death penalty is violative of articles 14, 19, and 21 the golden triangle of Indian constitution. He laid down two things that must be required to impose the death penalty:

1. There must be a special reason which should be recorded
2. It must be imposed only in extraordinary circumstances.  

3. In Bachan Singh v. State of Punjab (1980)[18], the issue was revisited, and the five-judge bench of the Supreme Court reversed its earlier ruling in Rajendra Prasad by a vote of 4 to 1 (Bhagwati J. dissenting). Because the "public order" contemplated by clauses (2) to (4) of Article 19 is different from "law and order," it was expressed that the death penalty, as an alternative punishment for murder, is not unreasonable and, therefore, is not in violation of articles 14, 19, and 21 of the Indian Constitution. It also enunciated the principle of awarding the death penalty only in the "rarest of rare cases." In his opposing opinion, Bhagwati J. stated that "the death penalty is not only unconstitutional because it violates Articles 14 and 21 but also undesirable from several points of view.”       

4. The Supreme Court affirmed the death penalty for four prisoners in the case of Mukesh and Others v. State (NCT of Delhi)[19], stating that the case qualified as "the rarest of rarest" and that the crime committed was shocking to mankind. Later, the Supreme Court dismissed the inmates' requests for reviews. The death warrants were requested by the victim's parents from the Delhi court.

The Delhi government also requested issuing death warrants for the four prisoners so that their death sentences may be carried out. The Tihar government is required by a Delhi court ruling to notify convicted individuals about their remaining legal options. Later, the Delhi High Court rejected Pawan Kumar Gupta's argument that he was underage when committing the crime.

The Delhi High Court dismissed a complaint that Pawan's father made against the only eyewitness, who was asking for the filing of an FIR. The four prisoners were hanged to death on January 22, 2020, in Tihar Jail, Delhi.       

4. Shabnam v. State of Uttar Pradesh[20]  

The case is quite a remarkable case, considering the fact that a woman has received a death penalty and that is going to be executed for the first time in India. Question arises that why all of a sudden the court is so determined to award a woman with death penalty, considering the fact that in a country like India, women is personified as the one “who has a soft and tender heart, who is genuinely innocent inside and out and that she can never do a crime”.

As per the facts of the case, Shabnam Ali and her lover Saleem had allegedly murdered all the members of Shabnam’s family, and they had not even spared a 10-month-old baby, who was Shabnam’s brother’s son. 

In the year 2010, the Sessions court of Amroha awarded a death sentence to both of them.

This decision was upheld by the Allahabad High Court in the year 2013 and by the Supreme Court as well in the year 2015.  

An innocent must not be punished; however a guilty should not be spared as well”.

Thus, the bench, after the review petition gave the same verdict again- Shabnam and Saleem must receive a death penalty. The court reasoned that the couple had heinously murdered 7 persons, including a 10-month-old infant.

 

LAW COMMISSION OF INDIA REPORT

In its 35th Report[21], law commission proposed that:

In India, there has been much deliberation regarding whether or not to retain the death penalty for a long time. In India, for the first time, the Law Commission looked into the death penalty and made its observation and presented its 35th Report, which concluded that “As an experiment, the death penalty may be abolished once so that it can be re-introduced again after completion of the experiment, but that, after looking to certain possibilities on the issue, it is suggested that capital punishment must be retained as it is in the country.” The Commission however declared in 2015 that it is high time that India should move towards the abolition of the death penalty[22].

In its 262nd Report[23] titled “The death penalty”, a 272 page draft report (August 2015), India’s Law Commission proposed speedy abolition of the death penalty for all crimes excluding terrorism-related offences and war. The report’s full recommendations are as follows: 

                 The Commission urged to the government that it should implement measures such as     police reforms, witness protection schemes, and victim compensation schemes as soon as possible.

• The Commission felt that the time had come for India to make a shift towards abolition of the death penalty, informed by the expanded and deepened contents and horizons of the Right to Life and personal liberty, strengthened due process requirements in interactions between the state and the individual, prevailing standards of constitutional morality and human dignity.
• Despite the fact that there is no other specific reason for treating terrorism differently from other crimes, concern is regarding abolishing the death sentence for terrorism-related offences and war will have an adverse impact on national security. 
• Given the concerns, the Commission saw no reason but to take the first step toward abolishing the death sentence for all offences except than that of terrorism-related offences.    

 

 

CONCLUSION:

 Capital punishment has been a contentious issue not only on a global level but also on a national level as in India. It serves to preserve resources that might be wasted or could be employed elsewhere if wrongdoers were imprisoned or confined behind bars. Given the fact that India’s prisons are currently overcrowded, their basic needs for existence consume a significant share of the economy. Since convicts do also have human rights, it is the government’s responsibility to protect their rights. The primary goal of the death sentence is deterrence, that is, to deter an individual from committing any such similar crime in the future, as well as to deter other prospective criminal from doing so by displaying severe repercussions. There is hardly any opportunity to avoid the repercussions of wrongdoing. Article 21 of the Indian Constitution, which says, “No person shall be deprived of his life or personal liberty…”, is not in accordance to the approval of a death sentence because depriving  someone of their life is against Article 21 of the Constitution.

Due to the fact that it is difficult and time consuming to seek justice in a country like India with so many cases pending, there have been instances where innocent persons have been put behind bars for many years. Rehabilitation is a necessary element in addition to the goals of prevention and deterrence. A criminal’s opportunity of rehabilitation ends when he or she is sentenced to death. This type of punishment is similar to putting a full stop to an individual’s life. It’s worth noting that while death penalties should reduce the number of crimes committed, crime rates have risen in recent years, along with the severity of offences. Result based statistics shows that, the motivation for capital punishment appears to be ineffective.

A sentence like capital punishment should be substituted by alternatives like those stated above in a country like India, where the Constitution protects the human rights of 1.3 billion people. Since god gave us life, only god, not the state or any authority is entitled to take it away from us. Taking all of this into account, new appropriate regulations should be created to ensure the successful execution of alternatives to capital punishment, as well as advice from professionals.

With the theme of 2022 year’s world day against the death penalty is safeguarding the health and rights of women and girls, capital punishment should not completely be abolished in such a vast democratic country like India, USA and prevail in the doctrine of rarest of rare cases. The concept of capital punishment helps in achieving the modern welfare state with a balance of fair and just judicial system.

 

---

[1] . 11th President of India from 2002 to 2007

[2] https://en.wikipedia.org/wiki/World_Day_Against_the_Death_Penalty

[3] Death Sentence in India - IPC - Death penalty - Legal Service India available at http://www.legalserviceindia.com/articles/dsen.htm l,  last seen at 2/12/2022/2022

[4] Available @legalserviceindia.com/legal/article-6558-capital-punishment-contemporary-perceptions-and-comparative-analysis.html

[5] Available at https://www.britannica.com/topic/capital-punishment                 

[6] https://www.ejusticeindia.com/capital-punishment

[7]https://blog.ipleaders.in/capital-punishment-in-india, last seen on 2/12/22

[8] "Overview and Analysis of Capital Punishment in India." I Pleaders, blog.ipleaders.in/capital-punishment-3/12/22.

[9] https://www.legalserviceindia.com/legal/article-8656-capital-punishment-in-india-critical-analysis.html

[10]Available at https://www.advocatekhoj.com/blogs/index.

[11]Available at https://blog.finology.in/Legal-news/capital-punishment-in-india#:~:text=The%20court%20further%20ruled%20that,2.

[12] https://study.com/academy/lesson/arguments-for-and-against-capital-punishment.html

[13]https://study.com/academy/lesson/arguments-for-and-against-capital-punishment.html

[14] https://deathpenalty.procon.org/top-10-pro-con-arguments/

[15] https://thelegallock.com/death-penalty-debate-arguments-in-favour-and-against

[16] Rajendra Prasad Versus The state of Uttar Pradesh AIR 1979 SC 918.

 

[17] Machhi Singh Versus the State of Punjab 1983 AIR SC 957

 

[18] Bachan Singh Versus The state of Punjab 1980 SC 898

 

[19] Mukesh & Anr v. State for NCT of Delhi & Ors. 2017) 6 Supreme Court Cases 1: (2017) 2 Supreme Court Cases (Cri) 673: 2017 SCC Online SC 533

[20]  Available at https://www.thelegalvidya.in/shabnam-v-state-of-uttar-pradesh-a-case-analysis

[21] https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-35-capital-punishment-vol1-vol3

[22] https://lawcommissionofindia.nic.in/reports/

[23] Law Commission of India chaired by Justice A.P. Shah submitted its 262nd report on 31st August 2015.