Jurisprudence of Death Penalty

Abstract: Whenever we see or read news regarding decisions of courts involving cases wherein death penalty is awarded, we tend to think why such a harsh punishment still persists in the times we’re currently living in, given the fact how much importance is given to human life and rights. This article attempts to unravel the history behind such a punishment and India’s position with respect to this punishment. Further, the arguments of both the sides, i.e., those who are against it and those who support it are discussed. Finally, in the inference it has been stated what lies ahead for this specific punishment and what could be done at ground level to avoid misuse of this power.?

Keywords: Capital punishment, Executions, Code of Criminal Procedure, Death penalty and Article 21

Introduction:

As the name suggests, the term death penalty means a punishment received by a person after a trail in court of law for committing certain offences, wherein he is executed and deprived of his life. It is also termed as capital punishment. In general, this punishment is awarded in cases where the crimes are extremely heinous, grievous and detestable. Even though a majority of countries have abolished the use of this punishment, it still persists in countries like India, U.S., China, Iraq, etc.

In India, Indian Penal Code (IPC),1860 prescribes six types of punishment that can be imposed under law and death penalty is included among them. Section 354(3) CrPC states that special reasons are required to support the punishment of death penalty.

The contention whether this punishment is just or not in context of modern-day society has been subject to a long-standing debate. The question still remains whether in today’s evolving criminal jurisprudence this practice has become anachronous or is still ‘just’ for good of society?

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History:

The formal execution of criminals has been used in nearly all societies since the beginning of recorded history. In the past penalties included crucifixion, impalement, crushing, disembowelment, stoning, burning, decapitation, etc. Compared to these methods, the method used in present time would seem more humane.?

The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code of King Hammurabi of Babylon, which codified the death penalty for 25 different crimes. Hammurabi’s code, a code of laws developed by king of one of the first empire, claimed that retribution i.e., an eye for an eye and a life for a life, was justice. Both the Greeks and Romans invoked the death penalty for a wide variety of offences. Socrates and Jesus were perhaps the most famous people ever condemned for a capital crime in the ancient period. In the sixteenth century, in Britain, under the rule of Henry VIII, nearly 72,000 people (estimated) were given death penalty for offenses such as marrying a Jew, not confessing to a crime, and treason. Although the scenario changed in Britain in following centuries as death penalty was not giving as widely as it was established under law. Offenders were generally pardoned as they agreed to banishment; some were sentenced to the lesser punishment of transportation to the then?American colonies?and later to Australia.

Historically, executions were public events, attended by large crowds, and the mutilated bodies were often displayed until they rotted. In mid-nineteenth century, in Britain death penalties?were banned, though they continued to take place in parts of the?United States?until the 1930s.

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Indian scenario:

In the aftermath of attaining independence from British rule, Indian law makers retained several codes in our legal system which were used and developed during British era. Indian Penal Code, 1860 (IPC) and Code of Criminal Procedure, 1898 (CrPC) were among such codes. IPC prescribes death penalty as one of the punishments and CrPC mentions relevant requisites for giving such punishment.

In the subsequent decades following independence, several private member bills were introduced in parliament but none was adopted. The question whether a convict deserves death penalty or not has been left open-ended by the legislature. According to Section 354(3) in the Code of Criminal Procedure, while imposing the capital punishment, the judge should specify “the special reasons” for doing so. ?In Bachan Singh vs State of Punjab (1980)[1] the Constitution Bench suggested a humane and reformist framework in the matter. It said that the gallows could be resorted to only in the rarest of rare cases, that too when “the alternate option is unquestionably foreclosed”. Thus, Bachan Singh requires the trial courts not only to examine the gravity of the offence but also the condition and the ‘reformability’ of the accused. So, it is quite evident that the decision of granting capital punishment is very much in hands of the judge, who is expected to decide in such a case objectively. For a same offence (let’s say ‘murder’), a convict might be given death sentence by a court, while in another instance similar offence under different circumstances might invoke lesser punishment.

Once a death sentence is given by the Sessions Court, the same shall be confirmed by High Court under Section 366 CrPC. Further, if the convict appeals against such punishment in Supreme Court and fails, the only door left for him to knock is that of President of India. Under Section 72 and 161 of Indian Constitution, President and Governor respectively have been given power to grant pardon, to any person who has been convicted of an offence (In case of latter the power extends to matters of that particular state).

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Contentious issue:

One might wonder why in this date and age such a barbaric punishment still persists. Ever since its existence, there has been a perpetual debate whether it should be abolished or not. This topic has kindled debate upon its morality and effect of this punishment on criminal behaviour.

Now there are different contentions both in favour and against capital punishment. Those in favour contend that a person who took someone’s life, forfeits his/ her own right to life. So, in a way giving such a punishment is a way of reinforcing moral umbrage not only of the victim’s family but also of society in general. This sect also believes that such a punishment will act as a deterrent in comparison to other punishments to any future crime.

Those who are against contend that capital punishment is counterproductive as it legalizes the very act it wants to repress i.e., killing. One of the famous persons to stand against capital punishment was Cesare Beccaria. This trait was rare during the time he existed as death penalty was given for a number of crimes. He argued on moral and practical grounds against capital punishment. He said that unless a state faces grave circumstances, such a punishment should be avoided. Secondly, he said that the belief that such a punishment will act as an example to people is wrong as an execution does not have a major impact on the mind of a person. The effect if any is ephemeral in nature.

Another contention in opposition of this punishment is that capital punishment can’t be fairly applied as the poor section of the society suffers the most. In the Indian scenario, the legal assistance received by the poor facing serious charges is far from satisfactory. Their arguments and different factors surrounding the case are not put forward properly in the trail. So, as a result of poor defense they’re not able to convince judge to avoid death penalty and are generally convicted when compared with a person who has enough resources to fight a legal battle.

Research Methodology:

The research for this article is done keeping in mind what exactly were the stakes in respect of capital punishment in past and the present. Respective provisions, commentaries and cases have been studied to reach the conclusion that has been stated in the article. The aim of this piece is to bring about clarity in reader’s perception about capital punishment as means of justice by mentioning about both sides of the coin rather than keeping it unilateral.

Conclusion:

The main reason death penalty still persists in the modern-day society is that there are certain crimes that shock the very conscience of the society and so such a crime deserves such a treatment. Sometimes giving an alternate punishment doesn’t satisfy the criteria that comes under the sense of ‘justice’ of a society. A person in general measures state’s action in terms of its personal effect on him/her. Thus, he/she supports death penalty as it gives a sense of safety. In some cases, circumstances are such that the person convicted has moved beyond human domain and his very existence might just be a danger to society. Such a scenario would demand harshest punishment and so capital punishment can’t just be abolished, at least not yet or in near future keeping the society in mind.

But it is also true that such an inhuman and barbaric punishment should not be a part of a justice system. Capital punishment could be termed to be violative of right to life envisaged in Article 21 of our constitution. There have been developments in this direction as seen in Supreme Court’s judgement in Bachan Singh case wherein the Court stresses upon special reasons before imposing the extreme punishment of death, as opposed to the norm of sentence of life, after their assessment of aggravating factors and mitigating circumstances, i.e., circumstances related to the crime and the convict’s life history which exasperate and alleviate respectively, the death worthiness of the convict. In the study of recent cases pertaining to death penalty, it can be observed that Supreme Court has begun to inquire into sentencing methodology with great interest. In Rajendra Pralhadrao Wasnik vs The State of Maharashtra[2], the Court was open to bringing on record material related to the convict such as his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Following up on such trail, the Court in Mofil Khan vs State of Jharkhand[3], held that “the State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused” and that “the Court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.” The MP High Court in the recent case, Manoj & Ors vs State of Madhya Pradesh (2022) issued directions to the State to place before the court all the reports of all the probation officers relating to the accused and reports talking about their conduct and nature of the work done by them while in prison. Another important aspect of this order is that it also states that a trained psychiatrist and a local professor of psychology conduct a psychiatric and psychological evaluation of the convict.

Humans are susceptible in making error in taking decisions and our system is no alien to it. Post Bachan Singh case and follow-up judgements points towards a trajectory where our judiciary is changing its approach towards giving capital punishment and is more inclined to give a second thought to this punishment. What could be done is that a new legal mechanism be evolved where a comprehensive check-up dealing with the socio-economic and hereditary backgrounds of the accused from experts in the fields of social work, psychiatry, psychology, anthropology, etc. is done.

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·?????Unknown, Early History of the Death Penalty, Death Penalty Information Center, ?https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty

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[1] Bachan Singh vs State of Punjab, (1980) 2 SCC 684

[2] Rajendra Pralhadrao Wasnik vs The State of Maharashtra, (2019) 12 SCC 460

[3] Mofil Khan vs State of Jharkhand, 2021 SCC OnLine SC 1136