IDIA ODISHA CHAPTER 1ST NATIONAL ESSAY COMPETITION

TOPIC: CAPITAL PUNISHMENT IN INDIA

Author :

Akasmika Mishra
2nd year (3rd semester )
Madhusudan Law College
9937496059
akasmikamishra4@gmail.com

Co-Author:

Aradhana Rath
2nd year (3rd semester )
Madhusudan Law College
8895177389
INTRODUCTION

No society is totally free from crime when we talk about crime it becomes important to know the
meaning of the term crime. A crime is an act of omission are event the commission of which is
prohibited by law and which if committed, leads to prosecution by and in the name of the state
rather than an individual person and upon conviction, to punishment of some form administered by
agents of the state rather than the payment of compensation. Thus, society, crime and punishment
are interlinked with each other. As in every society where is crime so punishment is inevitable.
“Punishment is not for revenge but to lessen the crime and to reform the criminals”. Punishing the
offender is the primary function of all civil state. Punishment is given because it is believe that by
giving punishment too the criminals it restricts them from committing any crime in future and it also
set examples for other people in the society.

CAPITAL PUNISHMENT

Indian penal code provides different kinds of punishment of all forms of punishment, capital
punishment is perhaps the most controversial and debated subject among the modern penologist.

Capital punishment is also called Death penalty, execution of an offender sentenced to death after
conviction by a law for a criminal offence.

Capital punishment should be distinguished from extra-judicial execution without due process of
law. The term death penalty is sometime used inter-changeably with capital punishment, though
imposition of penalty is not always followed by execution, because of possibility of commutation to
life imprisonment.

The term capital punishment stands for most Severus form of punishment. It is the punishment
which is to be awarded for the most heinous, grievous and detestable crimes against humanity.
While the definition and extent of such crimes vary from country to country, state to state, age to
age, the implication of capital punishment has always been the death sentence. By common usage in
jurisprudence criminology and penology, capital sentence means a sentence of death.

HISTORY OF CAPITAL PUNISHMENT

Capital punishment is an ancient sanction. There is practically no country in the world where the
death penalty has never existed. History of human civilization reveals that during no period of time
capital punishment has been discarded as a mode of punishment. Capital punishment for murder,
treason, arson and rape was widely employed in ancient Greece under the laws of Draco, though
Plato argued that it should be used only for the incorrigible. The Romans also used it for a wide
range of offences, though citizens were exempted for a short time during the republic.

In colonial India death was prescribed as one of the punishment in the IPC, 1860 which listed a No.
of capital crimes. It remained in effect after independence in 1947. The first hanging in independent
India was that of Nathuram Godse and Narayan Apte in Mahatma Gandhi assassination case on 15
Nov, 1949.

The offences which are punishable with death sentence under India Penal Code include:

1. Waging War against the Satte (121)

2. Abetment of Muting (132)
 3. Giving or fabricating false evidence lading to procure one’s conviction for capital offence
(section 194)
4. Murder (302)
5. Abetment of suicide committed by child or insane (305)
6. Attempt to Murder by life convict if it hurt is caused (307)
7. Kidnapping for reason etc.(364-A)
8. Dacoity with Murder (396)
9. Rape if the perpetrator inflicts injuries that result in the victims death or incapacitation in a
persistence in a vegetative state or is a repeat offender (376-A)

In Bachan Singh Vs. State of Punjab, Supreme Court while upholding the validity of death penalty
expressed the opinion that offences resulting in death punishable by death sentence when they
meet the rarest of rare standard . The aggravating circumstances which justify the award of death
penalty have been summed up as follows:-

1. If the murder has been committed after previous planning nd involve extreme brutality.
2. If the murder involves exceptional depravity.
3. If the murder of a member of any armed forces of the union or of a member of any police
force or of any public servant and was committed:-
a. While such member or public servant was on duty.
b. In consequence of anything done or attempted to be done by such member or public
servant in the lawful discharge of his duty as such member or public servant as the case
may be or has ceased to be such member or public servant.
4. If the murder is of a person who acted in the lawful discharge of his duty under section 43 of
Code of Criminal Procedure 1973 or who had render an assistance to a magistrate his
assistance under section 37 and 129 of the code.
5. However, some of the mitigating circumstance which do not justify award of death penalty
may be summed up as follows:-
i. Where the offence is committed under the influence of extreme mental or
emotional disturbance.
ii. Where the accused is young or old.
iii. The probability that the accused do not commit criminal acts or violence as would
constitute a continuing treat to society.
iv. The probability that the accused can be reformed and rehabilitated.

The question as to what are the rarest of the rare cases justifying death penalty lies in the
discretion of judges. In Machhi Singh Vs. State of Punjab:-

The supreme Court held that the motive for or the manner of the commission of crime or
the anti-social or abhorrent of the crime are some of the relevant consideration to justify
death penalty.

ARUGMENT FOR AND AGAINST CAPITAL PUNISHMENT

Capital punishment while pretending to support reverence for human life thus, impact tend
to destroy it arguments are made in both in favour and against the retention of capital
sentence as a form of punishment. Capital punishment is generally restored to serious
offences like murder . According to one view it is morally excluded and to other a moral
necessity. But the central question relating to the efficacy of death penalty is protesting
human life.
 ARGUMENT IN FAVOUR OF CAPITAL PUNISHMENT

Death penalty is supported by some penologist . According to them , it discourages to the

outmost degree of criminal conduct on the part of those who were aware of existence and
horror of the painful mode of treating criminals . Death penalty is far more powerful and
effective deterrent than life imprisonment , men fear death than life imprisonment ,So it is
the strongest deterrent . some argue that death penalty is something which morality
depends as uniquely appropriate means of reprobation or retributions for the worst crimes
even if adds nothing to the protection of human life. It serves as a unique deterrent to the
professional criminals the alternative of imprisonment give rise to serious difficulties .

The following are some of the argument in favour of death penalty

1. There are some offenders who are not only incorrigible but who are immensely
dangerous to society and there is no reason why society should be burdened with
maintaining such person. If you cannot cure and if this incorrigible element is harmful of
human society why not to remove it altogether?
2. It must be remembered that punishment by state is a substitute for private revenge . if a
murderer is not punished with death , it is quite possible that the relatives of the victim
might murder the murderer and thus a chain of murders might set in. so long as human
emotions are powerful , the power of vengeance prevail, It is argued Capital punishment
is a necessary kind of punishment.
3. Death penalty cost the government less oppose to life imprisonment without parole.
Proponent say despite expenses incurred by government for imposing capital
punishment death penalty is still cheaper compared to the cost of life imprisonment.
Although there is no contention that the cost of former is high life imprisonment is
accumulatively higher giving expenses for food health care and other cost of sustaining
the lives of incarcerated individuals serving life.
4. Death penalty is just punishment just for crime committed against the right to life
freedom and safety of victim . It is the right of an individual to live peacefully and to b
free from harm , unfortunately crimes like murder , rape and assault committed by
perpetrators who have no regard for life and property of others . Since they violate Right
to life it will be fare that they are brought to justice and suffer the fate they rightfully
deserved . People who are for capital punishment also talk about free will wherein an
individual is given the right to do things in his or her own volition and he or she is
responsible for his or her own fate.

ARGUMENTS AGAINST DEATH PENALTY

Many critics oppose to death sentence as it is considered to be brutal and barbaric in nature. It may
be said that though capital punishment serves some purpose in the present context of our respect
for human dignity and the possibility of reforming the character of the offenders and experiment of
abolishing the capital punishment would be a worthy attempt. The major attack on the capital
punishment is on moral grounds.

The followings are some of the arguments against it:

1. None of the various methods used in executing criminals is absolutely free from pain or
torture.
2. Far worse than physical pain is the mental torture experienced by the condemned man
waiting in the death house for reprieve which is generally granted very late.
3. The poignant suffering experienced by the family and friends of those t be executed is
another socking phenomena too little appreciated by the public. The infamy connected with
the execution can never be eradicated from the memory of the victims . The children,
Mothers , Wives and Other close relatives are suddenly confronted with an overwhelming
life crisis that is out of proportion to the wrong committed by criminal.
4. Many countries in Europe and America have abolished capital punishment altogether. This is
enough proof that society can control criminal activity even without resorting to this
extreme type of punishment.
5. Death penalty does not have effective deterrence to the desire extent of upon the criminals
who commit murder as a result of psychopathic compulsory or impact of rage or those who
are of defective personality or often professional gunmen. Such a criminal realizes that his
chances of being apprehended and punished are inevitable slight and even though
convicted may be pardoned.
6. The present defective police , force system bring about a situation in which much less than
half of those guilty of murder are even arrested while a large portion of those arrested are
unjustly freed through the inefficiency of the court and the trail system. There can be no
doubt that a murder would be seriously deterred by absolute uncertainty of the relatively
mild punishment than by one in ten chance of having penalty inflicted on him.
7. Some have suggested that if one desire to make death penalty most effecting as a deterring
influence it would be desirable to make a great public spectacle of it and carry it out under
the most brutal and degrading circumstances . But history shows that even more serious
form of capital punishment publicly administered have slight or no deterrent influence .
8. Capital punishment is more expensive than the high cost of maintaining prisoner even for
long term institution.
9. Some of the sentimental objection to Capital punishment are that it is against the spirit of
humanity , it brutalises the human intellect or that God alone has right to take human life.

Life is very precious for all for which our law of land guarantee under article 21 that is Right
to life and personal liberty. For the protection of this right it also provide certain laws. For
example if a person kill someone he will be punished by the state , But the punishment
should not be so harsh like death sentence , because the murderer also have Right to life. As
we cannot provide life to a person , in the same manner we don’t have the right to take it.
So the criminals can be punished in other manner like life imprisonment , which offer them
an opportunity to reform themselves and realise their fault. The number of critics are more
than the number of supporters of death penalty . There are many reasons to oppose it.
Death penalty is irreversible In nature in which many innocent person may suffer
irredeemable harm if they are wrongly hanged. Death penalty does not necessarily act as a
deterrent it is a violation of human rights and is an inhuman and cruel form of punishment .
Indian has rectified the covenant and civil and political rights which require parties to abolish
the death penalty . Even the international criminal court for the offenses like genocide , war
crimes and crime against humanity cannot award the death penalty. Many countries have
already eliminated it.For example Nepal officially abolished the death penalty in 1990 and
did not reintroduced it , even in the aftermath of the civil war. Similarly , despite a long civil
war has maintained a moratorium on the penalty , Isreal has only executed ones’ since its
formation. A total 140 countries have abolished it while 39 countries have not. The law
commission of India in its 262nd and declare that the abolition of death penalty must become
a goal for India it had recommended for a start. They scraping at death penalty for all crimes
except terrorism related offenses and those that amount to wagging war against the state.
Retributive justice is important but it must not is not decent to the level of vengeance. The
law commission had sought a written to the notion of retributive and reformative justice
and urged change in terror in such a manner that victims are not made to think that the
death penalty is the only best or ultimate form of punishment. It is observed that the
administration of the death penalty even within the restrictive environment of “ rarest of
rare” . doctrine is constitutionally unsustainable . the continued administration of death
penalty raises a issue of miscarriage of justice errors as well as the plight of the poor and
disenfranchised in the criminal justice system. The question of death penalty is not freed
from the subject element and the confirmation of death sentence or its connection by count
depends a good deal on the press and preference of the judges . Constituting the bench, As
per the SC , there was a 95.7% error rate among trail courts (from 2000-2005) which
awarded the penalty and 23.2% error rate among SC rulings on death (2000-2013) . There is
increase in support for the view that the death penalty for terrorist may not only be the
effective but above counter producer .when they are awarded the penalty they become
martyrs influencing other misguided youngsters to expose a similar cause on the other hand
, imprisonment of a terrorist can help in obtaining information relating to their activities and
other terror outposts . Enhancing the efficiency of legal system will be more effective than
enhancing the punishment.