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Is Capital Punishment Ethical?


Capital Punishment is defined as, “the practice of killing people who have committed a serious crime,” as per Merriam Webster. 

This is a form of punishment that imposes the death penalty, under which the offender is to be executed after being sentenced to death by a court of law. It is the highest degree of punishment awarded to anyone under the law in any part of the world and is a tool used by the judiciary to punish an individual who is guilty of the most heinous and degrading crimes against society. The Indian Penal Code doesn’t describe the word ‘heinous’ but as per past judgments, the Supreme Court defines SC rules, ‘Heinous Offences’ as defined under JJ Act does not include Crimes Punishable beyond 7 yrs but have no minimum Sentence

James Fitzjames Stephen, an English jurist, believed that no other punishment deters man so effectively from committing crimes as the punishment 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. The history of human civilization reveals that there has never been a  period of time wherein capital punishment has been completely 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 (fl. 7th century BCE), though Plato argued that it should be used only for the incorrigible. The Romans also used it for a wide range of offenses, though citizens were exempted for a short time during the republic. This finds support in the observation made by Sir Henry Marine who stated that “The Roman Republic did not abolish death sentence though its non-use was primarily directed by the practice of punishment or exile and the procedure of questions“.

Capital Punishment in India: 

Careful scrutiny of the debates in British India’s Legislative Assembly reveals that no issue was raised about capital punishment in the Assembly until 1931, when one of the Members from Bihar, Shri Gaya Prasad Singh sought to introduce a Bill to abolish the punishment of death for the offenses under the Indian Penal Code. However, the motion did not pass after the then Home Minister replied in the negative, to the motion. The Government’s policy on capital punishment in British India prior to Independence was clearly stated twice in 1946 by the then Home Minister, Sir John Thorne, in the debates of the Legislative Assembly. “The Government does not think it wise to abolish capital punishment for any type of crime for which that punishment is now provided

Aim and Objective of Death Penalty: 

The objective of the death penalty is to make an example of the evildoer and deter other like-minded people. Out of the various theories of punishment, the two i.e. the retributive and the deterrent theories, provide justification for the application and implementation of the death penalty. The retributive theory emphasizes the retention of death punishment for horrendous crimes. This theory is based on the principle “An eye for an eye”, ‘‘a tooth for a tooth’”. It consists not in simple but in proportionate retaliation, that is in receiving in return for a wrongful act, not the same thing but its equivalent. The deterrent theory sets an example for the wrongdoer. This theory operates on two counts: 

i. Firstly, when the offender is punished by infliction of death; society gets rid of him; 

ii. Secondly, it impresses the consciousness of people at large and thus serves the purpose of preventing others from committing crimes

This theory also emphasizes the need for the death penalty as a token of emphatic disapproval of society for murderous crimes. The aims of punishments are now considered to be retribution, justice, deterrence, information and protection, and modem sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public repulsion to the offense and to punish the offender for his wrongful conduct. In viewing the concept of justice as an aim of punishment, emphasis is given to making the legislation a modern one. However, judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. This means that both the punishment should fit the offense and that like offenses should receive similar punishments. 

Current Status of Capital Punishment: 

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all individuals. It adds that no person shall be deprived of his life or personal liberty except according to procedure established by law. This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life. While the central government has consistently maintained that it would keep the death penalty in the statute books to act as a deterrent for those who are a threat to society. The Supreme Court has upheld the constitutional validity of capital punishment in the  “rarest of rare” cases. In Jagmohan Singh v. State of Uttar Pradesh (1973)Rajendra Prasad v. State of Uttar Pradesh (1979), and finally in Bachan Singh v State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided by the law and the procedure is a fair, just, and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases and the courts should render “special reasons” while sending a person to the gallows.

Criteria for the rarest of rare:

The principles as to what would constitute the “rarest of rare” have been laid down by the top court in the landmark judgment in Bachan Singh v. State of Punjab (1980). The Supreme Court formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely upon the court’s discretion to reach this conclusion. However, the Apex Court also laid down the principle of weighing, aggravating, and mitigating circumstances. 

A balance sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top Court held, may be asked and answered. First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after maximum weightage to the mitigating circumstances which speak in favor of the offenders? 

Alternative to capital punishment: 

The Supreme Court has entrenched the punishment of “full life” or life sentence of a determinate number of years as a response to challenges presented in death cases. The Supreme Court in its three-judge bench decision in the Swamy Shraddhanand case laid the foundation of this emerging penal option. The bench, however, observed that life imprisonment, subject to remission, was grossly disproportionate and inadequate to the crime committed. This laid down the foundation of the penal option of imprisonment for the rest of a convict’s life without remission. The observations in the Swamy Shraddhanand case have been followed by the Court in a multitude of cases such as Haru Ghosh v. State of West Bengal, State of Uttar Pradesh v. Sanjay Kumar, Sebastian v. the State of Kerala, Gurvail Singh v. State of Punjab where full life or sentence of a determinate number of years has been awarded as opposed to the death penalty. 

Clemency Powers: 

In case the Supreme Court turns down the appeal against capital punishment, a condemned prisoner can submit a mercy petition to the President of India and the Governor of the State. Under Articles 72 and 161 of the Constitution, the President and Governors, respectively 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 offense”. Neither of these powers is personal to the holders of the Office but are to be exercised (under Articles 74 and 163, respectively) on the aid and advice of the Council of Ministers.

Law Commission on Death Penalty: 

The Law Commission of India in its 262nd Report (August 2015) recommended that the death penalty be abolished for all crimes other than offenses related to terrorism and waging war. The recommendations made were as follows:

  1. The Commission recommended that police reforms, witness protection schemes, and victim compensation schemes should be taken up expeditiously by the government.
  2. The Commission accordingly recommended that the death penalty be abolished for all crimes other than terrorism-related offenses and waging war. Further, the Commission said that it sincerely hopes that the movement towards absolute abolition will be swift and irreversible.

​​The march of our own jurisprudence — from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to the rarest of rare cases – shows the direction in which we have to head. Informed also by the expanded and deepened contents and horizons of the Right to life and strengthened due process requirements in the interactions between the State and the individual, prevailing standards of constitutional morality and human dignity, the Commission felt that time has come for India to move towards abolition of the death penalty. Although there is no valid penological justification for treating terrorism differently from other crimes, the concern is often raised that abolition of the death penalty for terrorism-related offenses and waging war, will affect national security. However, given the concerns raised by the lawmakers, the Commission did not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offenses other than terrorism-related offenses. 

Sanchali Bhowmik is a third-year law student at Jindal Global Law School

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