By Rufaid Imtiaz

Abstract:

The controversial subject of capital punishment has often been used by the state machinery to force power over the population. Identifying the moral justification for its existence has been under criticism, however, it still finds support among various laws of the states. In this paper, we are analyzing its usage in two countries that are politically situated differently, India and Saudi Arabia. Following the Quran and Sharia, Saudi Arabia empowers the use of capital punishment through its religious alignments. India on the other hand has judicially opaqued capital punishment in the majority of the cases, with exceptions being provided to the rarest of the rare. Whether capital punishment should exist or not is a different question altogether, in this paper we will lay out the executive actions and its jurisprudence.

Introduction:

Punishment, which is one of the foundations of contemporary civilization, uses coercion to uphold land law. The state is obligated to execute wrongdoers to uphold the rule of law, and if in the past, there was no specific law or order in place for such crimes, the state is empowered to carry out the laws framed by the legislative bodies. Over time, modern theories of punishment evolved, and the State was given the rights and power to keep law and order. The most heinous form of punishment authorized by the government is capital punishment. 

Even though the crime might have been heinous, the perpetrator might not deserve the death penalty. In the case of ‘Rajendra Prasad v. State of Uttar Pradesh’, Krishna Iyer stated, “The special reason must relate to the criminal, not the crime.” When a court awards a punishment, it bases its decision on a theory or proposition. These theories, known as ‘Theories of Punishment,’ are divided into five categories: 1.) The Deterrence Theory 2.) Prevention Theory 3.) Reformation Theory 4.) Theory of Experimentation 5.) Retributive Justice Theory. The death penalty is widely used in China, India, the United States, and Arab countries, but it is opposed by many others. As the liberal advocates against the death penalty claim, it should be used only in extreme cases, and taking someone’s life is not how justice should be served. This paper aims to classify all such possibilities and commentaries that talk about capital punishment in several politically affiliated and distinct countries. For the sake of uniformity and better comparison, this paper focuses on two countries: India and Saudi Arabia.

India’s Scenario:

When punishment is levied for someone’s culpability, it is done for two reasons: initially, the person who committed the crime must suffer as a result of it; and second, punishing the wrongdoer acts as a warning to others. Considering the death penalty in light of punishment, in India, to determine whether the death penalty is appropriate for a specific criminal case, The “rarest of the rare” doctrine is used. This means the death penalty will only be used in extreme cases.

Following Bachan Singh’s decision, a three-judge bench in the case ‘Macchi Singh & Others V. State of Punjab declared that a collective community conscience will only expect holders of judicial powers to do so and impose the death penalty if:

1. If the murder is committed in such a brutal or repulsive manner that it is intense and elicits extreme outrage from the community.
2. The murder of a Scheduled Caste member is committed to arousing social rage.
3. In the case of “bride cremation” or “dowry death.”
4. When there is a high criminal activity rate.
5. If the victim of a murder is:

• an innocent child,
• a vulnerable woman or person rendered without the assistance of mature epoch or illness,
• when the injured party is an individual about whom the slaughterer has authority or trust.

Rarest of the rare doctrine:

To reduce the use of capital punishment, the Supreme Court ruled in ‘Bachan Singh v. State of Punjab that the death penalty should be accorded only in the most egregious of cases. According to the Supreme Court’s Rule of Law in the case of Bachan Singh, the death penalty is constitutional only if it is used as an alternative to life imprisonment, and it should only be used in the most extreme cases when the alternative option is foreclosed. Furthermore, the Supreme Court stated in the case of ‘Santosh Kumar Bariyar v. State of Maharashtra’ that “the rarest of rare” dictum “only serves as a framework in upholding the provisions mentioned in Section 354(3) of CrPC and entrenches the rule that life imprisonment is the norm and death penalty is an exception.” According to Article 21 of the Indian Constitution, no one’s “Right to Life” shall be infringed unless done with due process of law. In the case of the death penalty, infringement of such rights gets triggered, which eventually poses a question on its viable application.

Law Commission Report of 2015:

Despite 1303 death penalty convictions, India has only carried out seven executions since 1998. 3751 death sentences have been commuted to life sentences in the last two decades. Yakub and eleven others were sentenced to death in 2007, but their convictions were overturned in March 2013 by a special court for their roles in the 1993 Mumbai bombing, which killed nearly 260 people and injured many more. In the last fourteen years, only four people have been hanged. It was only in 2020 that four convicts in the Delhi gang rape case were sentenced to death.

To safeguard national security, India’s Law Commission, which is an independent body that provides expert advice to the government on legal matters, has recommended that the country abolish the death penalty for all crimes other than terrorism-related offenses. This recommendation was made by the Law Commission in two previous reviews, in 1967 and 2015. Even though death sentences in India are rarely carried out, the commission believes the penalty should be abolished.

Saudi Arabia’s Scenario:

Saudi Arabia is an Islamic country. Its legislation is based on both Sharia’s principles and customary law i.e., traditional Islamic law. Saudi Arabia’s constitution is formed by the ‘Quran’ and the ‘Sunna’. Article 1 of Saudi Arabia’s constitution states that “The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital.” Article 26 states that “the state protects human rights by the Islamic Shari’ah.” Article 38 mentions that “there shall be no crime or penalty except by a Shari’ah or organizational law. There shall be no punishment except for acts committed after the coming into force of the organizational law.” This indicates that the legal system of Saudi Arabia is based on divine declaration rather than judicial decisions.

There are three types of crimes laid down in Islamic criminal law i.e., the hudud, the visas, and the ta’zir. ‘Hudud’ includes crimes that are dangerous for Islamic society and includes seven crimes. Four of these are adultery, apostasy, armed robbery, and rebellion; capital punishment is fixed for these crimes and there is no discretion for the judge to change the punishment if the accused is proven guilty. Qisas are offenses against an individual rather than Islam or Islamic society, these offenses are described in the Quran. It includes murder and injury. The punishment is either reflected by the crime or consists of a material effect for example if the murder was intentional and unjust then the punishment is capital punishment. Ta’zir includes all the other crimes and for deciding their punishment, judges have full discretion. 

To be a judge (also known as qadi in Saudi Arabia), the person must be a “great follower of Islam”, and scholar training is required. The district court or Musta’jalah does not have the power or jurisdiction to get involved in cases that could result in capital punishment. The high courts or kubra have generally one qadi bench but in matters relating to Hudah & qisas crimes, three qadi bench sits to examine, investigate, and give the verdict. The accused can review the judgment with a five qadi bench and will just check whether the previous bench has looked at everything correctly. The Supreme Court only reviews the death penalty case, wherein the reviewing just involves checking the guilt.

Punishments in Saudi Arabia:

• Hudud crimes-

Adultery or zina is generally proved in two ways. First is if the person who committed the adultery swears four times that he committed the crime, and the details are believable; the second way is if four people have seen the accused committing the crime of adultery. This crime is punished by stopping the guilty person. Apostasy or riddah is punished by beheading the convict. In the case of armed robbery or hirabah, the convicts are generally killed. But if the person who was robbed is still alive, then the punishment of death is removed, and the convict just must give the monetary benefits to the victim. Rebellion or baghy is punished by giving capital punishment to the convict as it is the greatest crime to the Islamic society from the people outside.

• Qisas crimes-

In cases of murder and bodily injury, the accused is given the death penalty if the act was unjust and/or intentional. Additionally, it is a requirement that the complaint should be made by the closest relative. That family member can choose and let the court know if they want monetary benefits instead of letting the convict get capital punishment. It is also advocated by the religion, as it is believed in Islam that people who choose the compensation over death penalty go to heaven.

• Ta’zir cases-

In Ta’zir crimes the punishment is given so that the act is not repeated, hence if the qadi believes that the accused will repeat the offense or any other offense based on their personality, they will be awarded capital punishment. The death penalty is given based on the severity of the crimes. There are also crimes under it that are prescribed for capital punishment i.e., sorcery, heresy, or spying by infidels.  

Under the laws of Saudi Arabia, an accused is believed innocent until proven guilty. To convict an accused, the qadi looks at all the facts and clears all reasonable doubts. If the qadi has a 100% reason to believe that the accused is guilty then only capital punishment is awarded. If the qadi gets doubt about the guilt, the accused will not get capital punishment.

Conclusion:

India and Saudi Arabia have different approaches to capital punishment. In India, capital punishment is legal but is only imposed in rare cases such as terrorism, murder, or treason. There is a mandatory appeal process for anyone sentenced to death, and the President of India has the power to grant clemency.

In Saudi Arabia, capital punishment is used frequently and is often carried out by beheading. The country’s legal system is based on Islamic law, and the death penalty can be imposed for crimes such as murder, drug trafficking, and apostasy. The appeals process is limited, and there have been concerns about due process and fairness in the legal system.

Overall, the use of capital punishment is controversial in both countries, with debates around its effectiveness, fairness, and ethics. There are significant differences in how it is applied in each country. India tends to use it less frequently, while Saudi Arabia has a high rate of executions. Additionally, the method of execution varies between the two countries, and the process of imposing the death penalty can also differ significantly.

Author’s Bio:

Rufaid Imtiaz is a fifth-year law student at O.P. Jindal Global University. He has a keen interest in law and its intersection with other subjects including religion, history, and political science. He enjoys writing on law and politically lineated issues. 

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