According to oxford Dictionary, Capital punishment is the legally authorized killing of someone as punishment for a crime. Capital punishment is the death sentence awarded for capital offences like crimes involving planned murder, multiple murders, repeated crimes; rape and murder etc where in the criminal provisions consider such persons as a gross danger to the existence of the society and provide death punishment. Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. There is a great deal of debate over how powerful a deterrent capital punishment is. Most of us have an instinctive feeling that the death penalty must deter, at least to some extent. Deterrence is one of the fundamental reasons for punishment of any kind. Since death is considered the harshest punishment available under the law, it seems logical that it must also be the most effective deterrent to crime. The English barrister Sir James Stephen remarked, “No other punishment deters men so effectually from committing crimes as the punishment of death.” “In any secondary punishment, however terrible, there is hope; but death is death; its terror cannot be described more forcibly.” The federal prisons now have custody of a man sentenced to life imprisonment, who, since he has been in prison, has committed three more murderers on three separate occasions- both of prison guard and inmates. There is no further punishment that he can receive. In effect, he has a license to murder.”
Capital Punishment, legal infliction of death as a penalty for violating criminal law. Throughout history people have been put to death for various forms of wrongdoing. Methods of execution have included such practices as crucifixion, stoning, drowning, burning at the stake, impaling, and beheading. Today capital punishment is typically accomplished by lethal gas or injection, electrocution, hanging, or shooting.
The death penalty is the most controversial penal practice in the modern world. Other harsh, physical forms of criminal punishment—referred to as corporal punishment—have generally been eliminated in modern times as uncivilized and unnecessary. In the majority of countries, contemporary methods of punishment—such as imprisonment or fines—no longer involve the infliction of physical pain (see Corporal Punishment). Although imprisonment and fines are universally recognized as necessary to the control of crime, the nations of the world are split on the issue of capital punishment. About 90 nations have abolished the death penalty and an almost equal number of nations (most of which are developing countries) retain it.
The trend in most industrialized nations has been to first stop executing prisoners and then to substitute long terms of imprisonment for death as the most severe of all criminal penalties. The United States is an important exception to this trend. The federal government and a majority of U.S. states allow the death penalty, and on average 75 executions occur each year throughout the United States.
“The death penalty is our harshest punishment. It is irrevocable; it ends the existence of those punished, instead of temporarily imprisoning them. Further, although not intended to cause physical pain, execution is the only corporal punishment still applied to adults. These singular characteristics
contribute to the perennial, impassioned controversy about punishment.”
1.2.1 Definition of Capital Punishment
It has been a tradition for a lawyer to start dealing with a subject after defining the scope their subjects in order to avoid various interpretations of the subject itself. As the saying goes “a well started problem is a half solved problem” I am going to use capital punishment as a meaning “killing of a person by a judicial process or the lawful infliction of death as a punishment.” Death penalty is used to punish wrongdoers for certain crimes. In this paper capital punishment, death penalty, and ultimate punishment are used to express the same thing.
1.2.2 History of Capital punishment
The exact date of origin of capital punishment is not known. But there is a view that the authorized taking of human life must be as old as mankind. In the form of human sacrifice, this taking reflects a believe in the sanction of life; in the form of punishment, it forces us to confront our baser selves.
It has been found very difficult, or more accurately impossible for scholars and students of law interested in the history of capital punishment as to how, when, where, upon whom and by whom it exactly inflicted at first. There is no clear evidence as to the first use of capital punishment. As to Holy Bible, as it is clearly expressed in Genesis Art.4, the first murderer ‘Cain’ was not sentenced to death. From the close reading of the verse of this Bible, Abel’s death at the hands of his brother Cain, didn’t gave raise to capital punishment. This is because Cain’s punishment was banishment instead of death. But although Cain was not sentenced to death for murder, the Old Testament makes reference stating that “whosoever sheds the blood of man, by man shall his blood be shed.” But one thing is true that the Old Testament was ineffective when Cain committed a murder. The Law of Moses comes be effective sometimes after the death of Abel.
The first recognized death penalty laws date back to the eighteenth century B.C. and can be found in the code of king Hammurabi of Babylon in which death penalty was prescribed for over twenty different offenses. This is very similar with the ordinance of Bible mentioned above, in which both demands “an eye-for-eye” punishment.
Death penalty is also part of Hittite code in the fourteenth century B.C. The Draconian code of Athens, in the seventeenth century BC, made death the lone punishment for all crimes.In the fifteenth century BC, the Roman law of Twelve Tables also contained the death penalty. Generally the ancient civilization and Middle East had the death penalty in their codes. Historically many different crimes were deemed to be capital offences by civil and religious authorities of the day. Offences like murder, treason, arson and rape were widely employed in ancient Greece by the death punishment under the laws of Draco (fl.7th century BC) and the Romans used it for a wide range of offenses.
Capital punishment has been prescribed for many crimes not involving loss of life, including adultery, and blasphemy and the ancient legal principle Lex talionis (talion)- “an eye for an eye, a tooth for a tooth, a life for a life”, which appeared in the Babylonian code of Hammurabi, was invoked in some societies to ensure that capital punishment was not properly applied.
Execution of criminals and political opponents has been used by nearly all societies. In most places the practice of capital punishment was reserved for murder, espionage, treason, or as part of military justice. In some countries, sexual crimes, such as rape, adultery, incest and sodomy, carry the death penalty, as do so religious crimes such as apostasy (the formal renunciation of state religion) were inflicted to death.
In many countries of the world drug trafficking is also capital offense. In countries like China human trafficking and serious corruption are capital offences punished by death.
Capital punishment in the ancient times was often avoided by the alternative of banishment and sometimes by payment of compensation. And also, for instance, from the eighth century to the mid-eleventh century in Japan, it was customary for the emperor to commute every death sentence and replaces it with a deportation to a remote area.It replaces the capital punishment to other punishment, which is less severe or to which is not severe as before.
In the history of capital punishment, until the existence of code of Hammurabi, there was no unified system of justice, which formalized the relation between classes. Code of Hammurabi was the first to set a different punishment and compensation according to different classes/group of victims and perpetrators. The Torah (Jewish law), also known as Pentateuch (the first five book of the Christian old testament), lays down the death penalty for offences like murder, kidnapping, magic, violation of Sabbath, blasphemy, and a wide range of sexual crimes, although evidence suggests that actual executions were rare.
Capital punishment is condoned or accepted in Islam. In the Medieval Islamic world, there were a handful or small number of Sheikhs, who were opposed to killing as punishment and also in the ‘One thousand and One Night’, which is also known as ‘Arabian Night’, a fictional storyteller Sheherazade is portrayed as being the ‘Voice sanity and Mercy’, generally opposed the death punishment.
The Qur’an prescribes the death penalty for several hadd (fixed) crimes-including adultery and apostasy of Islam. But murder was not among them. In Islam murder is treated as civil crime and is covered by the law of qisas (retaliation), whereby the relatives of the victim decide whether the offender is punished to death by authorities or made to pay diyah (wergild) as compensation.
Generally, capital punishment is historically controversial issue both nationally and internationally. It is believed that it exists before society’s organized.
The historical significance of capital punishment is not only related to punishment but also to the social control. Capital punishment by its nature was often administered upon those who identified as members of social problem populations.In such cases where it was believed that these populations did not respect the established authority or where it is believed that these populations were viewed as dangerous to the established authority, capital punishment is administered.
1.2.3 Methods and Modes of Executing Capital punishment
Before the age of Enlightenment, that is 18th century, in Europe as well as in every corner of the globe, execution of capital punishment was characterized by torture and slow brutality. Executions were carried before an assembly of crowd. One of the most defining characteristics of European Enlightenment was a call for moderation in existing punishments.In the history of capital punishment different modes of execution are exercised. Among these beheading, boiling in oil, burning alive, burning, crucifixion, disembowelment, drawing, flying alive, hanging, impalement, stoning, strangling, being thrown to wild animals, and quartering (being torn apart) were highly exercised. Those all were practiced as modes of punishment in the ancient times.
In Britain, hanging became the usual method of execution in the tenth century AD. As many as 72,000 people were executed in the sixteenth century during the reign of Henry VIII by common execution methods including boiling, burning at the stake, hanging, beheading, and drawing and quartering.
In America, when the young United States adopted the practice of capital punishment from England, it also adopted the methods of the mother country. The methods like quartering and boiling the convict alive are the methods adopted by the United States from Britain. In nineteenth century the practice of hanging replaced these techniques on the ground that they were too “barbaric”.
In the history of capital punishment America tried (attempted) to make the mode of execution more humane. The 1890s saw the introduction of electrocution as less painful method of execution than hanging. Nevada introduced lethal gas as the more humane method of executing capital punishment in 1924, but the “chair” was the primary form of execution until 1980s. Different states of United States use different methods of execution of capital punishment. Today the most common method of execution in United States are lethal injection (sixteen states), electrocution (fifteen states), lethal gas (eight states), hanging (four states), and firing squad (two states).
In United States, of the 143 executions carried out between 1977 and 1991, 54 were by lethal injection, 83 by electrocution, 5 by gas chamber, and 1 by firing squad. Among the states of America eight states provide for more than one method of execution and grant the condemned person a choice, usually between lethal injection and other methods. Generally lethal injection is considered as more humane than others and it was first used by Texas in 1982 and today this method dominates executions in United States. According to its proponents the main advantage of this method is that it’s painless.
Regarding justification of punishment scholars are not of the same opinion. They provide different reasons why we use punishment. There are many possible reasons that might be given to justify or explain why someone ought to be punished. Depending on its cultural, moral, and religious attitudes different societies have different outlook as to why criminals must be punished. Based on these differences, people have different purposes for punishing criminals.
1. Retributive Theory
According to this theory punishment is interested in correcting past wrongs. It looks backward to the crime and asks what justice requires correcting the past wrong.It looks towards the original offense and seeks to punish the offender proportionately. This theory which, is the most stringent and harsh
of all other theories, believes to end the crime itself. This type of justification for punishment is the oldest of others.
The Golden Rule states “Do unto others as you would have others do unto you”. Law enforcement seems to have its own version on the Golden Rule, which translated as “Do unto others as they have not done to you”. According to retributive theory punishment applied simply in proportion to the seriousness of the offense. When a judge sentences for the purposes of retribution, punishment is simply applied in proportion to the seriousness of the offense. The “eye for an eye” system of justice described in the Old Testament is an early form of retribution. It maintains that punishment is justified because it gives wrongdoers what they deserve. The suffering of wrongdoer is seen as good in itself, even if it has no other benefit.
According to the retributivist theory, the more serious the crime the more serious the punishment should be. It underlies the idea of vengeance and revenge rather than that of social welfare and security. Therefore, the retributive theory is an objective of sentencing has no effort to change the offender and provide nothing to the society except a form of revenge. Since those men have done a wrong they must suffer for it. The proponents of this theory say that our sense of moral rightness demands punishment.
A retributive theory basically relies on principle of fairness, justice, and equity and it refrains from being discriminatory or vindictive in its sentencing approach.That means generally, although sentences might be severe and more frequent, the retributive theory suggests that they would be fairer and would impose punishment on those who deserve it.
Retributive theory implies punishment on offences irrespective of its deterring effect on others. That means punishment should be imposed on the criminals not only to deter others from committing same crime but it should be imposed because the offenders deserve it. However, some argued that this is a “zero sum game” that such acts of street justice blood revenge are not removed from society, but responsibility for carrying them out is merely transferred to the state.
Generally, retribution sets an important standard of punishment on the offender. The transgressor must get what he deserves, but no more. Therefore, a thief put to death is not retribution, because it is more than the act of the wrongdoer; but a murder to put death is. Those all leads us to conclude the principle of “an eye for an eye, a tooth for a tooth …a life for a life” has a deterrent effect.
2. Deterrence Theory
This theory aims to prevent crime through the example of offenders being punished. That is, it looks forward to the prevention of future crimes. It is to act as a measure of prevention of future crimes. It is to act as a measure of prevention to those who are contemplating criminal activity. According to these theories; punishment should not be designed to exact retribution on convicted offenders but to deter the commission of the future offences.
In the ancient history of punishment all things was deterrent, and the chief end of the law of crime was to make the evil-doer example and a warning to all that like minded with him. The argument is that persons seeing and knowing that others are punished for committing crimes will be deterred from committing such offences by themselves.
Deterrent theorists distinguish the effect of punishment as a general deterrent and its effect is a special deterrent. Punishment acts as a general deterrent insofar as the threat of punishment deters potential offenders in the general community and it acts as a specific deterrent insofar as the infliction of the punishment on convicted defendants leaves them less likely to engage in the crime. General deterrence is directed at preventing crime among general population, while special deterrence is aimed at preventing future crimes by particular offender. The basic reasoning behind general deterrence is impeccable. One can easily understand that persons are deterred from actions likely to have painful consequences. Generally the basic idea of deterrence is to deter both offenders and others
from committing a similar offense.
3. Incapacitation and Special Deterrence
Incapacitation refers to the believe that dangerous criminal offenders should be locked away for a long period of time but special deterrence refers to the concept that the pains of their imprisonment should be so severe that on release convicted offenders will not dare to repeat their criminal act. This theory believes on the absence of dangerous peoples to minimize or totally void crime. At the heart of both incapacitation and the special deterrent the concept is the believe that a small number of people commit a great number of criminal offenses and that if they put out of circulation, their absence will have a significant role on the crime rate.However, there are various researches that invalidate the above logic.
Generally if people who have directly experienced punishment for something they did in the past refrain from future criminal activity because of the fear of being punished again, that is specific deterrence and if people who have not experienced punishment themselves but are deterred from crime by the fear that they might get the same punishment experienced by others it is known as general deterrence. When the judge hands down a sentence and tells the offender, “this ought to make you think twice next time,” the judge is thinking of a penalty as a specific deterrent; and if the judge says, “I intend to make an example of you,” the penalty’s general deterrent value is being emphasized.
4. Rehabilitation and Reformation Theory
Traditionally rehabilitation and reformation were used interchangeably to express the same thing but it is not correct. Reform is direct consequence of punishment, whereas rehabilitation is an alteration of an offender’s behavior by non-punitive means so that he/she no longer violates laws.It is generally expected that the criminal justice process will somehow reform or rehabilitate those caught up in it, or at least will not make them worse. It is recognized that virtually all persons who are processed, even those
convicted and sentenced to life imprisonment, will eventually return to the community.
This theory is the leading and the dominant feature in the most modern legal punishment. The theory rests upon the believe that human behavior is the product of antecedent causes, that these causes can be identified and that on the basis of therapeutic measures can be employed to effect changes in the behavior of persons treated.
This approach sees criminal behavior as a consequence of social order or psychological shortcomings. The purpose of sentence, then, is to correct or threat these shortcomings in order to prevent future crimes.It is impossible to divorce individual from the community. Because individual is also one part of the community. This theory is the most recent and most humane theory, of all theories raised above. It is based its foundation on the principle of reforming legal offenders through individual treatment. This theory presumes that it is proper to sentence an offender based on the likelihood of reform in the future rather than in the criminal conduct already committed.It held to make the offender good to rehabilitate or to change the mind of the offender through counseling, education and training.
The rehabilitation philosophy holds that people are at the mercy of social, economic, and interpersonal conditions and interactions. Criminals themselves are the victim of racism, poverty, family disorganization, and other social problems. Therefore, it is the societies duty to help them compensate for their societal produced personal problems. There is a view, hold most prominently, but by no means exclusively by persons in psychiatry, that we ought never punish persons who break the law and that we ought instead to do something much more like what we do when we treat someone who has a disease. According to this view, what we ought to do to all such persons is to do our best to bring it about that they can and will function in a satisfactory way with in society. The society has an obligation to show the criminal that he/she is not rejected or detested by the community that he/she is not considered as the enemy of the community
and the community understands his misfortune that derives him to this evil. The functional equivalent to the treatment of a disease is the rehabilitation of an offender, and it is rehabilitative system, not punishment system.
Rehabilitation theory is the philosophy that society is best served when wrongdoers are not simply punished, but provided the resources needed to eliminate (avoid) criminality from their behavioral patterns.It suggests that criminals can be treated and possibly even cured of their proclivities or tendency toward a crime.
Since the root of a crime is embedded in a complex array of phenomena, economic, social, and cultural in nature the concern should be in identifying the problem and afford the appropriate treatment. A man may be restrained from particular act of crime on a particular occasion but the criminal nature in him is not touched, the criminal instincts are extirpated and they will bloom again in some other deed of crime. Truly, unless the punishment has the effect on character, unless education is regarded as an essential concomitant of punishment, the can be no hope of making punishment useful. We must realize that it is the criminality of human being not the humanity that must be uprooted.
It is far cheaper and more efficient and humane to help young offenders become established in the community than to punish them with a prison sentence and lock them in to a life of crime. Rehabilitation theory emphasized on the criminal offender and focused on correcting them.
These mentioned above are only few among strongest justifications of punishment. There also other justifications like education and incapacitation. But it is worth considering here that none of them exclude the others completely, rather they interrelated to each other. And the most effective punishment is the one that holds most of these justifications harmoniously.
1.1.2 Theory of punishment
The term punishment connotes a moral dimension of responsibility and blame. It is not like responding to one force of nature by creating a counter-force. Such a simple mechanistic will not do. It needs beyond such mechanism. Punishing a person is not like a disciplining dog for tailing to heel-rather, punishment sends two important messages: that the society holds the actor responsible and blame worthy for her conduct, and that moral condemnation by the community, with whatever stigma is attached, is appropriate.
Punishment and offences share some common denominator in that both involve the infliction of pain or suffering to the victim. However there is a big difference between the two. Jeremy Bentham describes these dissimilarities as follows.
The catalog of punishment is the same with that of offences. The same evil done by the authority of law, will constitute a punishment or an offense. This offense is the enemy of all and punishment is the common protector. Offense for the individual of a single person produces a universal evil, punishment by suffering of individual produces a general good….
Having this nature, in order to achieve its pursuit, punishment should be effective. An effective punishment is guaranteed when the punishment is just and equitable. Therefore, punishment, as much as possible seeks to bring the complete public protection at the same time avoiding the infliction of needless suffering on the offender. When I say just and equitable punishment, I want to say attention should be paid not only to the interest and need of the collectivity but also the offender and the victim as well.
Purpose of research &
Used Methodology (Doctrinal and Non Doctrinal)
Research is a procedure of logical and systematic application of the fundamentals of science to the general and overall questions of a study and
scientific technique which provide precise tools, specific procedure and technical rather than philosophical means for getting and ordering the data prior to their logical analysis and manipulation. Different type of research design is available depending upon the nature of research project, availability of capable manpower and circumstances.
Objectives of Research
The purpose of research is to discover answer to questions through the application of scientific procedures. Through each research study has its own specific purpose, we may think of research objectives as falling into a number of following broad groupings:
1. To gain familiarity with a phenomenon or to achieve new insights into it;
2. To portray accurately the characteristics of a particular individual, situation or a group;
3. To determine the frequency with which something occurs or with which it is associated with something else;
4. To test a hypothesis of a causal relationship between variables.
Research Design :
The research design is the blueprint for the fulfillment of objectives and answering questions. It is a framework which determines the course of action towards the collection and analysis of required data. It is a master plan specifying the method and procedures for collecting and analyzing needed information. Descriptive Research is used in this study, as the main aim is to describe characteristics of the phenomenon or a situation.
Time Schedule :
The collection of data was done during the month of April 2009.
Data Collection :
The source of data includes primary and secondary data sources.
• Primary Sources : Primary data has been collected directly from sample respondents through questionnaire and with the help of interview.
• Secondary Sources : Secondary data has been collected from standard textbooks, Newspapers, Magazines & Internet
Sample Design :
Sample design is definite plan determine before any data is actually obtaining for a sample from a given population. The researcher must decide the way of selecting a sample. Samples can be either probability samples or non-probability samples.
Target Population : General Public
Sample Unit : Individual
Sampling Technique : Convenient Sampling
Sample Size : 100 Respondents
Chapter 1: Development and types of capital punishment.
• History and various principles of capital punishment in India.
Crimes that can result in the death penalty are known as capital crimes or capital offenses. Capital punishment has been used in societies throughout history as a way to punish crime and suppress political dissent. In most places that practice capital punishment today, the death penalty is reserved
as punishment for premeditated murder, espionage, treason, or as part of military justice. In some countries sexual crimes, such as rape, adultery and sodomy, carry the death penalty, as do religious crimes such as apostasy (the formal renunciation of the State religion). In many retentionist countries (countries that use the death penalty), drug trafficking is also a capital offense. In China human trafficking and serious cases of corruption are also punished by the death penalty. It is a matter of active controversy in various states, and positions can vary within a single political ideology or cultural region. The methods of execution and the crimes subject to the penalty vary by jurisdiction and have varied widely throughout time. Some jurisdictions have banned it, others have suspended its use, but others are trying to expand its applicability. Capital punishment is cruel, inhumane and barbaric, and does not belong in the penal system of any modern, progressive culture.
The word “capital” in “capital punishment” refers to a person’s head. In the past, people were often executed by severing their head from their body. The phrase ‘capital punishment’ comes from the Latin word. The term capital originates from Latin capitalis, literally “regarding the head” (Latin caput). Hence, a capital crime was originally one punished by the severing of the head.
Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial.
It can only be used by a state, so when non-state organizations speak of having ‘executed’ a person they have actually committed a murder. It is usually only used as a punishment for particularly serious types of murder, but in some countries treason, types of fraud, adultery and rape are capital crimes.
Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece under the laws of Draco (fl. 7th century bc), though Plato argued that it should be used only for the incorrigible.
Death was formerly the penalty for a large number of offenses in England during the 17th and 18th centuries, but it was never applied as widely as the law provided. Beginning in the Middle Ages, it was possible for offenders guilty of capital offenses to receive benefit of clergy, by which those who could prove that they were ordained priests (clerks in Holy Orders) as well as secular clerks who assisted in divine service (or, from 1547, a peer of the realm) were allowed to go free, though it remained within the judge’s power to sentence them to prison for up to a year, or from 1717 onward to transportation for seven years.
From ancient times until well into the 19th century, many societies administered exceptionally cruel forms of capital punishment. In Rome the condemned were hurled from the Tarpeian Rock; for parricide they were drowned in a sealed bag with a dog, cock, ape, and viper; and still others were executed by forced gladiatorial combat or by crucifixion. Although by the end of the 20th century many jurisdictions (e.g., nearly every U.S. state that employs the death penalty, Guatemala, the Philippines, Taiwan, and some Chinese provinces) had adopted lethal injection, offenders continued to be beheaded in Saudi Arabia and occasionally stoned to death (for adultery) in Iran and The Sudan. Other methods of execution were electrocution, gassing, and the firing squad.
Historically, executions were public events, attended by large crowds, and the mutilated bodies were often displayed until they rotted. Public executions were banned in England in 1868, though they continued to take place in parts of the United States until the 1930s. In the last half of the 20th century, there was considerable debate regarding whether executions should be broadcast on television, as has occurred in Guatemala. Since the mid-1990s public executions have taken place in some 20 countries, including Iran, Saudi Arabia, and Nigeria, though the practice has been condemned by the United Nations Human Rights Committee as “incompatible with human
“Death row” is so inhumane. On the basis of a binding ruling by the European Court of Human Rights (1989), EU countries may extradite an offender accused of a capital crime to a country that practices capital punishment only if a guarantee is given that the death penalty will not be sought.
Types of Execution
There are seven main types of execution:
1. Hanging: Hanging where the prisoner is blindfolded and stands on a trap door, with a rope around his neck. The trap door is opened suddenly. The weight of the prisoner’s body below the neck causes traction separating the spinal cord from the brain.
2. Shooting,: where a firing squad shoots the prisoner from some meters away.
3. Guillotine: A device consisting of a heavy blade held aloft between upright guides and dropped to behead the victim below.
4. Garroting: in which a tightened iron collar is used to strangle or break the neck of a condemned person.
5. Electrocution: One of the more recent is electrocution, where the prisoner is fastened to a chair by his chest, groin, arms and legs. Electrodes are placed around a band around the head, and then jolts of 4-8 amperes at voltage between 500 and 2000 volts are applied at half a minute at a time.
6. Lethal Injection :The newest forms of execution are lethal injection where a lethal poison is injected into the prisoners arm
7. Gas Chamber: Where the prisoner is placed in a room with Sodium Cyanide
crystals and left to die.
Changes the Death Sentence
Actually the ancient forms of execution were often cruel and inhuman. Many historical penalties include boiling to death, flaying, slow slicing, crucifixion, guillotine, stoning and execution by burning. . Executions in ancient China were carried out by many painful methods such as sawing the condemned in half, flaying him while still alive, and boiling. Cruel forms of execution in Europe included “breaking” on the wheel, boiling in oil, burning at the stake, decapitation by the guillotine or an axe, hanging, drawing and quartering, and drowning. But as people had been to move civilization they tried to give the capital punishment in such way that is less painful and more human.
Following this trend, in the early 19th century in Britain hanging by turning the victim of ladder or by dangling him from the back of a moving cart, which causes death by suffocation was replaced by only “Hanging” where the subject is dropped a longer distant to dislocate the neck and server the spinal cord. Taking this advantage, criminals were realized from death at that time because Neck was not mentioned. So hanging could be possible by hands or by legs.
1. Crucifixion 2.Flaying 3. Guillotine
Then the death sentence replaced “Hanging by Neck”. But still there was a link that no time dimension was mentioned. Finally the death sentence converted into “Hanging by Neck until Death”. And still this sentence is used in our country to give the capital punishment. Then people are introduced by some new execution methods which are less painful but more humane such as-gas chamber, lethal injection, electrocution etc. now many countries used these methods for giving the capital punishment.
However after this process many alternatives to hanging were introduced such as electrocution, lethal injection, gas chamber etc. Now these methods are using for giving capital punishment which are more humane and less painful.
• Capital punishment in international scenario.
• The United States ranked fifth for the highest number of executions.
• The U.S. takes a spot behind China, Iran, Iraq, and Saudi Arabia for the most executions in the world last year, sitting ahead of Yemen and the Sudan.
• This ranking comes as no surprise to Brian Evans, Amnesty International’s acting director on the Death Penalty Abolition Campaign, who said the same countries are in the top eight every year. (See video: “Inside Death Row.”)
• But why is the U.S.—which seems like somewhat of an outlier politically, culturally, and geographically—always in the top five?
• According to Evans, the U.S. has a strict attitude toward punishment in general. Having a severe attitude toward the death penalty is only natural when you consider that the U.S. leads the world in mass incarceration of prisoners and holds records for solitary confinement and sentences to life in prison.
• 2. Saudia Arabia saw the execution of one man by “crucifixion.”
• Methods of execution vary between regions based on culture and available technology, and they usually include standard tactics, such as hanging, beheading, firing squad, and lethal injection. In Saudi Arabia, however, one accused man was put on display after being beheaded in a practice known as crucifixion, according to the country’s state news agency, SPA.
• The reasoning behind executions also vary around the world. In Papua New Guinea, for example, a woman and her two daughters are currently being held
captive with charges of sorcery and risk a death sentence. It’s common in the Pacific country for those accused of sorcery, especially women, to face horrific acts of violence that often end in death.
• 3. China keeps its execution numbers secret.
• The Chinese government is notorious for keeping statistics about their criminal executions secret, and in past years, Amnesty International was forced to rank China based on the minimum number of executions that researchers could confirm. Since that number was always drastically lower than the assumed reality, researchers now use reliable media sources and human rights groups—rather than official government sources—to estimate the number of executions in China.
• Using this data, the 2012 report estimates that thousands of criminals were killed in China last year alone, while the tally for the rest of the world combined stands at 682.
• 4. Japan’s executions actually increased in 2012 after a long hiatus.
• While the global trend for the death penalty is actually declining around the world, Japan—and other notable countries such as India and Pakistan—resumed executing criminals after a long stint of being execution-free. At least seven death row inmates were killed in Japan last year, ending a 20-month period without executions.
• Why the change? “It all depends on which political party is in power,” Evans said. One prime minister will come into power and abolish the practice, then the next will just reinstate it, leaving the lives of criminals in the hands of changing political whims.
• 5. Just 21 countries in the world carried out the death penalty last year.
• In the broad scope of things, only a fraction of the world’s total countries (the total being 195 by National Geographic’s count) actually used
execution as a means of punishment last year. That number is down from 28 countries just a decade earlier, suggesting a downward trend in the global practice.
• The few countries that do still practice execution are situated in “regional pockets” around the world, Evans noted. Just four countries in the Middle East, for example, are responsible for all the executions in the region. And in the U.S., death penalty laws differ by state, with hotbeds of execution in the U.S. South, Ohio, and Arizona.
• Prevalence of Capital punishment.
• From the study of history, we can see the prevalence of capital punishment since time immemorial, which includes death by hanging the offender in public, lethal injections, electrocution etc. The punishment has since been abolished by almost 139 countries of the world and amongst those who retain it, partially or wholly include countries in Asia including India, Pakistan and China, Latin America and Caribbean including Trinidad & Tobago and Cuba, North America including the USA. The reasons in favour of retaining capital punishment include safety (of society), deterrence and costs (of maintaining such criminals in the prisons). It can be seen that capital punishment is an appropriate penalty for many offenders who are perpetrators of the inhuman act of killing people with utmost impunity and disregard for human life.
• The use of capital punishment is also viewed as a means of vengeance for the victims/ families of the victims of such barbaric acts. But this is far from being the aim of capital punishment as it is not always possible to hand out the sentence in every instance where the family/ the public at large believe that it is the most suitable punishment. A good example of the same is the Indian case involving Dara Singh who burned alive Mr. Graham Staines, an Australian missionary and his 8 year old son in 1999. The Supreme Court, dismissing the CBI’s plea for death sentence said that the case did not fall within the framework of ‘rarest of rare cases’.
• In India, the legal framework for use of Capital punishment is laid down
in the Indian Penal Code which permits use of capital punishment for murder in the ‘rarest of rare cases’. Section 302 of the Indian Penal Code says that a person committing murder shall be punished with death, or [imprisonment for life] and shall also be liable to fine and Section 303 of the Indian Penal Code reads thus: Whoever, being under sentence of [imprisonment for life],commits murder, shall be punished with death. The sparing use of this sentence in the country is also in conformance with its obligation of judicious use of this penalty as a party to the International Covenant for Civil and Political Rights (ICCPR). The country’s judiciary uses this punishment upon an unequivocal establishment of the culpability of the offender/ offence in a case before it which, the court believes truly falls within the definition of the ‘rarest of rare case’.
• It is, however, interesting to note that despite the punishment being handed down by the courts, both the lower and appellate ones, not many have been carried out. According to official statistics, only 1 sentence, that of Dhananjoy Chatterji in 2004 was carried out since the execution of ‘Auto’ Shankar in 1995. And the execution in 2004 has been the last in the country. Death sentences have recently been handed down to rapist Umesh, where the Supreme Court confirmed the death penalty handed down by the Karnataka High Court and in the case of Surinder Koli, the serial killer who committed the heinous act of strangulating young girls and raping their dead bodies. Such cases defy the laws of basic human courtesy towards the dead and the death sentence is seen as a welcome punishment by many. Further to this, Ajmal Kasab, the lone surviving terrorist of the Mumbai attacks in 2008 is awaiting confirmation of death sentence from the Bombay High Court end of February. However, where warranted the state has to take suitable measures to carry out the sentence of the courts since implementation of the same is necessary to achieve the result so intended.
• India has been hesitant in abolishing capital punishment and had even voted against a United Nations General Assembly resolution in 2007 calling for moratorium on the death penalty. This action is justified and even people’s consensus is in favour of retaining the same with over 70% of the public voting for continuing the usage of death penalty as a means of
punishment. Although nothing is more inhuman than taking away the human life, Capital punishment meted out to offenders who show no remorse for their barbaric actions may set an example in the society of the consequences of such an act and incite fear in the minds of anyone contemplating a similarly hideous act. The liberty of life of a person cannot be at the cost of another or in most cases several others in the society. Therefore, capital punishment meted out to serial killers, rapists and terrorists, who have no consideration for human life and are blinded by lust, power and misguided by unethical considerations restores the people’s faith in the judicial system. However, the judiciary has an obligation to be prudent in the use of this sentence and act upon a well founded and unbiased judgement in its decisions. To conclude, every act performed in moderation always results in greater good for oneself and the people around.
• Capital punishment in America.
• Capital punishment (also called the death penalty) in the United States is limited under the Eighth Amendment to the United States Constitution, and, in practice, is used almost exclusively for aggravated murders committed by mentally competent adults. However since 1994 the death penalty can be used against people who sell illegal narcotics and those accused of treason.
• Capital punishment was a penalty for many felonies under English common law, and was enforced in all the American colonies prior to the Declaration of Independence. It is currently a legal sentence in 32 states, and in the federal civilian and military legal systems. Thirty-four states have performed executions in the modern era. Since capital punishment was reinstated in 1976, Texas has performed the most executions, and Oklahoma has had (through mid-2011) the highest per capita execution rate.
Death penalty statutes in the United States as of March 2013 Color key:
No current death penalty statute
Death penalty statute declared unconstitutional
No one executed since 1976
Has performed execution since 1976
• The methods of execution and the crimes subject to the penalty vary by state, and have changed over time. The most common method since 1976 has been lethal injection. In 2012, 43 inmates were executed in the U.S. and 3,146 were on death row – an execution rate of less than 2%.
• Over the past 20 years, the death penalty has slowly declined in popularity in the United States from an all time high in 1994 of 80% in favor, though 63% are still in favor of it.
Section 1983 contested
Under the Antiterrorism and Effective Death Penalty Act, a state prisoner is ordinarily only allowed one suit for habeas corpus in federal court. If the federal courts refuse to issue a writ of habeas corpus, an execution date may be set. In recent times, however, prisoners have postponed execution through a final round of federal litigation using the Civil Rights Act of 1871 — codified at 42 U.S.C. § 1983 — which allows people to bring lawsuits against state actors to protect their federal constitutional and statutory rights.
• Capital punishment in Britain.
• Capital punishment in the United Kingdom was used from the creation of the state in 1707 until the practice was abolished in the 20th century. The last executions in the United Kingdom were by hanging, and took place in 1964, prior to capital punishment being abolished for murder (in 1965 in Great Britain and in 1973 in Northern Ireland). Although not applied since, the death penalty was abolished in all circumstances in 1998. In 2004 the 13th
Protocol to the European Convention on Human Rights became binding on the United Kingdom, prohibiting the restoration of the death penalty for as long as the UK is a party to the Convention.
• In 1808 Romilly had the death penalty removed for pickpockets and lesser offenders, starting a process of reform that continued over the next 50 years. The death penalty was mandatory (although it was frequently commuted by the government) until the Judgement of Death Act 1823 gave judges the power to commute the death penalty except for treason and murder. The Punishment of Death, etc. Act 1832 reduced the number of capital crimes by two-thirds. The death penalty was abolished for counterfeiting and almost all forms of forgery in the same year. Gibbeting was abolished in 1832 and hanging in chains was abolished in 1834. In 1861, several acts of Parliament (24 & 25 Vict; c. 94 to c. 100) further reduced the number of civilian capital crimes to five: murder, treason, espionage, arson in royal dockyards, and piracy with violence; there were other offences under military law. The death penalty remained mandatory for treason and murder unless commuted.
• The Royal Commission on Capital Punishment 1864-1866 concluded (with dissenting Commissioners) that there was not a case for abolition but recommended an end to public executions. This proposal was included in the Capital Punishment Amendment Act 1868. From then executions in Great Britain were carried out in prison. The practice of beheading and quartering executed traitors stopped in 1870.
• The Criminal Justice Bill in 1988 provided a further opportunity for a debate; the new clause proposed by Roger Gale allowed for the jury in a murder case to “have the power, upon reaching a verdict of guilt of murder, to recommend .. death in the manner authorised by law”. It was rejected by 218 to 341. On 17 December 1990 a new Criminal Justice Bill again saw amendments designed to reintroduce capital punishment. The first covered anyone over 18 “convicted of the murder of a police officer acting in the execution of his duty” and was rejected by 215 to 350; a general reintroduction of death as the penalty for murder (with special provision
for the Court of Appeal to decide whether to substitute a life sentence) was then rejected by 182 to 367. Capital punishment for “murder committed by means of firearms, explosives or an offensive weapon, or for the murder of a police or prison officer” was rejected by 186 to 349.
• The most recent Parliamentary debate on a question proposing reintroduction of capital punishment came on 21 February 1994 when new clauses to the Criminal Justice and Public Order Bill were moved. The first, providing for death as the sentence for “the murder of a police officer acting in the execution of his duty”, was rejected by 186 to 383; A new clause providing for general reintroduction with power for the Court of Appeal to substitute life imprisonment was rejected by 159 to 403.
• Capital punishment in European Union.
The death penalty has been abolished in all European countries, except for Belarus. The absolute ban on the death penalty is enshrined in both the Charter of Fundamental Rights of the European Union (EU) and the European Convention on Human Rights of the Council of Europe, and thus considered a central value. Of all modern European countries, San Marino and Portugal were the first to abolish and only Belarus still practices capital punishment. In 2012, Latvia became the last EU Member State to abolish capital punishment in war time.
Abolition has been common in European history, but has only been a real trend since the end of the Second World War when human rights became a particular priority. The European Convention on Human Rights was adopted in 1950, but some countries took many years to ratify it. The United Kingdom retained the death penalty for high treason until 1998; however, this technicality was superseded by the absolute ban on the death penalty in 1976. William Joyce was the last person to be put to death for high treason in the UK, on January 3, 1946.
In 2011 Latvia was the latest country to ratify Protocol 13 in abolishing the death penalty for all crimes. The legislation entered into force three
months after the instrument of ratification was deposited in 2012. Azerbaijan and Russia have not signed protocol 13, while Armenia and Poland have signed but not yet ratified. All have, however, abolished the death penalty.
A moratorium on the death penalty has been in place in Russia until January 1, 2010. According to the November 19, 2009, decision of the Constitutional Court of the Russian Federation the death penalty shall not be practiced in Russia at any time before the ratification of the above mentioned protocol. The Constitutional Court has also clarified that the decision is not an extension of the moratorium, but the abolition of the capital punishment since it will be no longer possible to practice it legally.
2009 was the first year that no one was executed anywhere in Europe, however in March 2010 Belarus executed the last two people on its death row.
The European Union (EU) has long since been against the death penalty, supporting the European Convention, and its 2000 Charter of Fundamental Rights included an absolute ban on the death penalty in all circumstances. The Charter has been made legally binding by the Treaty of Lisbon as it got fully ratified and effective on December 1, 2009. The treaty also has a provision for the EU to join the Council of Europe and accede to the European Convention on Human Rights. The EU has been an active promoter of abolition worldwide and has been promoting a UN convention against it, however some national governments such as Poland have opposed such moves.
The Council of Europe has made abolition of the death penalty a prerequisite for membership. As a result, no execution has taken place on the territory of the organisation’s member states since 1997. The Parliamentary Assembly of the Council of Europe continues to monitor the capital punishment issue. The current General Rapporteur on the abolition of the death penalty for the Parliamentary Assembly is German member of parliament Marina Schuster.
• Capital punishment in Australia.
• Capital punishment has been formally abolished in Australia. It was last used in 1967, when Ronald Ryan was hanged in Victoria. Ryan was the last of 114 people executed in the 20th century and prior to his execution Queensland and New South Wales had already abolished the death penalty for murder. Brenda Hodge became the last person sentenced to death in August 1984. Her sentence was commuted to life imprisonment and she was paroled in 1995. It was removed as a punishment for murder in all states by 1984 when the state of Western Australia abolished the death penalty for all crimes, and the next year NSW removed death as a possible punishment for treason, piracy and arson of naval dockyards.
• Between Ryan’s execution and 1984 occasional death sentences were passed in Victoria, South Australia, and Western Australia, but were commuted to life imprisonment. In 2010 federal legislation prohibited capital punishment in all Australian states and territories.
• In 1973 the Death Penalty Abolition Act 1973 of the Commonwealth abolished the death penalty for federal offences. It provided in Section 3 that the Act applied to any offence against a law of the Commonwealth, the Territories or under an Imperial Act, and in s. 4 that “[a] person is not liable to the punishment of death for any offence”.
• No executions were carried out under the bridge of the federal government and the passage of the Death Penalty Abolition Act 1973 saw the death penalty replaced with life imprisonment as their maximum punishment. Since the Commonwealth effects of utilising this Act no more individuals have been exposed to the death penalty and it is now replaced with life imprisonment.
• On 11 March 2010 Federal Parliament passed laws that prevent the death penalty from being reintroduced by any state or territory in Australia.
• Capital punishment in Middle East and other countries.
Capital punishment is legal in most countries of the Middle East. Much of the motivation for the retention of the death penalty has been religious in nature, as the Qur’an allows or mandates executions for various offences.
Almost all death penalties were abolished by legislation in 1954 except for serious crimes committed during wartime. The last execution to ever take place in Israel was that of Adolf Eichmann, who was convicted for his role in the Holocaust, in 1962. A moratorium has since been placed on all further executions, and Jewish religious law makes the death penalty difficult for rabbinical authorities to discuss.
In Turkey, capital punishment was fully abolished in 2004 for all crimes.
In Lebanon in 2008, then-Justice Minister Ibrahim Najjar introduced a draft law to Parliament which would abolish the death penalty. While the law failed to pass, he continued to advocate for the abolition for the rest of his time in office.
Farouk Ksentini, chairman of Algeria’s National Advisory Commission for the Protection and Promotion of Human Rights (CNCPPDH), stated in 2010 that he would advocate for the abolition of the death penalty. This aroused opposition from Islamist groups
Chapter 2: Law related to capital punishment in India.
• Constitutional provisions related to capital punishment in India.
Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The judicial decree that someone be punished in this manner is a death sentence, while the actual process of killing the person is an execution. The capital
punishment is qualitatively different from other punishment in as much as it is irreversible and if an error is committed, there is no way to rectify the error. India retains the punishment despite the global move toward abolition of it. The Supreme Court in Mithu vs State of Punjab struck down Section 303 of the Indian Penal Code, which provided for mandatory death punishment for offenders serving life sentence.Imposition of the capital punishment is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.The number of people executed in India since independence in 1947 is a matter of dispute; official government statistics claim that only 52 people had been executed since independence. However, the People’s Union for Civil Liberties cited information from Appendix 34 of the 1967 Law Commission of India report showing that 1,422 executions took place in 16 Indian states from 1953 to 1963, and has suggested that the total number of executions since independence may be as high as 3,000 to 4,300.According to some sources, there have been over 1400 executions since 2001. In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban death penalty.
In colonial India, death was prescribed as one of the punishments in the Indian Penal Code,1860 (IPC) and the same was retained after independence.
|Section Under IPC |Nature of Crime | |120B |Punishment of criminal conspiracy | | 121 |Waging, or attempting to wage war, or abetting waging of war, against | | |the Government of India | |132 |Abetment of mutiny | | 194 |If an
innocent person be convicted and executed in consequence of such false | | |evidence to procure conviction of capital offence | | 302, 303 |Murder | | 305 |Abetment of suicide of child or insane person | | 364A |Kidnapping for ransom | | 396 |Dacoity with murder . | | |If any one of five or more persons, who are conjointly committing dacoity, | | |commits murder in so committing dacoity, | | |every one of those persons shall be punished |
• Capital punishment under the IPC 1860
• Section 194 in The Indian Penal Code, 1860
• 194. Giving or fabricating false evidence with intent to procure conviction of capital offence.– Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital 2[ by the laws for the time being in force in 3[ India]] shall be punished with 4[ imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; If innocent person be thereby convicted and executed. If innocent person be thereby conviceted and executed.– and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment hereinbefore described.
• Provisions related to capital punishment under the Criminal procedure code 1973 in India.
• Capital punishment under the other laws.
• Article 72(1) of the Constitution of India states:
• The President shall have the power to grant pardons, reprieves,respites or remissions of punishment or to suspend, remitor commute the sentence of any person convicted of any offence
• (a) in all cases where the punishment or sentence is by a Court Martial;
• (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
• (c) in all cases where the sentence is a sentence of death.
Execution Of Death Sentence
The execution of death sentence in India is carried out by two modes namely hanging by neck till death and being shot to death.
Hanging by neck
Colonial era legislation of Code of Criminal Procedure, 1898 provided for hanging by neck till death. This has adapted by the Code of Criminal Procedure, 1973. Section 354(5) of the above procedure reads as
“When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”
The execution is carried out in accordance with the section and Jail Manuals of the respective state .An attempt to challenge this method of execution failed in the Supreme Court, which stated in its 1983 judgement that hanging did not involve torture, barbarity, humiliation or degradation.
Shot to death
The Army Act and Air Force Act also provide for the execution of the death sentence.Section 34 of the Air Force Act, 1950 empowers the court martial to award the death sentence for the offences mentioned in section 34 (a) to (o) of The Air Force Act, 1950 .Section 163 of the Act , provides for the form of the sentence of death as:-
“In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death”.
This provides for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death.The Army Act, 1950, The Navy Act 1957 also provide for the similar provisions as in The Air Force Act, 1950.
• Power of pardon of executive in India.
• A pardon is the forgiveness of a crime and the cancellation of the relevant penalty; it is usually granted by a head of state (such as a monarch or president) or by acts of a parliament or a religious authority. Clemency means the forgiveness of a crime or the cancellation (in whole or in part) of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves. Commutation or remission is the lessening of a penalty without forgiveness for the crime; the beneficiary is still considered guilty of the offense. A reprieve is the postponement of punishment, often with a view to a pardon or other review of the sentence (such as when the reprieving authority has no power to grant an immediate pardon).
• Today, pardons are granted in many countries when individuals have demonstrated that they have fulfilled their debt to society, or are otherwise considered to be deserving. Pardons are sometimes offered to
persons who are wrongfully convicted or claim they have been wrongfully convicted. Some believe accepting such a pardon implicitly constitutes an admission of guilt as a pardon does not set aside the conviction, so in some cases the offer is refused. Cases of wrongful conviction are nowadays more often dealt with by appeal than by pardon however, a pardon is sometimes offered when innocence is undisputed to avoid the costs of a retrial. Clemency plays a very important role when capital punishment is applied.
• Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment. A similar and parallel power vests in the Governors of each State under Article 161.
• However, it is important to note that India has a unitary legal system and there is no separate body of state law. All crimes are crimes against the Union of India. Therefore, a convention has developed that the Governor’s powers is exercised for only minor offenses, while requests for pardons and reprieves for major offenses and offenses committed in the Union Territories are deferred to the President.
• Both the President and Governor are bound by the advice of their respective Councils of Ministers and hence the exercise of this power is of an executive character. It is therefore subject to Judicial Review as held by the Supreme Court of India in the case of Maru Ram v. Union of India  INSC 213, 1981 (1) SCC 107, Supreme Court. It was subsequently confirmed by Kehar Singh v. Union of India  INSC 370, 1989(1) SCC 204, Supreme Court. In the case of Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors  INSC 638, Supreme Court, it was held that “clemency is subject to judicial review and that it cannot be dispensed as a privilege or act of grace”. The court made these observation while quashing the decision of then Governor of Andhra Pradesh Sushil Kumar Shinde in commuting the sentence of a convicted Congress activist.
• Prevalence against the public execution.
• Landmark judgments on capital punishments.
The Supreme Court delivered the judgment in Santosh Bariyar v State of Maharashtra on the 13th of May 2009. This is sure to become a landmark case on the issue of death penalty, and a natural follow up on Justice Ganguly’s recent dissent in Rameshbhai Rathod v State of Gujarat (see this previous post for a discussion on that case). For all our previous posts on death penalty, readers may want to see this.
In Bariyar, the judgment of the Court is delivered by Justice Sinha. In a learned opinion, Justice Sinha revisits Bachan Singh as the defining law on the subject. True to his style, the judgment is a progressive one, and justified by a rigorous reading of precedents and constitutional norms. It is rare to see a sound legal judgment, which does not rely upon anecdotal evidence and platitudes. Given the workload of Supreme Cour judges, the rarity is understandable, yet these rare judgments are commendable.
Justice Sinha holds that the first important value underpinning Bachan Singh is that of individualised sentencing. Therefore, mandatory death penalty is unconstitutional (citing Mithu v State of Punjab). He recalls the Court’s words in Bachan Singh: ‘Judges should never be bloodthirsty.’ The comment is important, in light of Justice Pasayat’s approach to death penalty (although Justice Sinha’s judgment does not explicitly mention the latter). Yet Sinha’s insistence that public opinion is irrelevant to the judicial role in sentencing is a timely reminder that as counter-majoritarian institutions, courts should stop playing to the gallery: ‘Even if presume that the general populace favours a liberal DP policy, although there is no evidence to this effect, we can not take note of it….The constitutional role of the judiciary also mandates taking a perspective on individual rights at a higher pedestal than majoritarian aspirations. To that extent we play a countermajoritarian role. And this part of debate is not only relevant in the annals of judicial review, but also to criminal jurisprudence.’
The second fundamental ratio in Bachan Singh that the Court emphasises upon is perhaps most crucial, and will have far-reaching consequences. The Court says that Bachan Singh requires a mandatory pre-sentence hearing stage where evidence on setencing must specifically be adduced. Further, it says that the evidence must not only relate to the crime, but also the criminal, including her socio-economic background. Finally, the prosecution must show on evidence that the alternative option is unquestionably foreclosed. In other words, the prosecution must show that rehabilitation is an impossibility. This will be possible in rarest of rare cases, indeed. The relevant portions of the opinion are worth quoting at length:
It is accepted that rarest of rare case is to be determined in the facts and circumstance of a given case and there is no hard and fast rule for that purpose. There are no strict guidelines. But a sentencing procedure is suggested. This procedure is in the nature of safeguards and has an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and 14.
Pre-sentence Hearing and “Special Reasons”
Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a full fledged bifurcated hearing and recording of “special reasons” if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and that the matter attracts constitutional prescription in full force, it is incumbent on the sentencing court to oversee comprehensive compliance to both the provisions. A scrupulous compliance of both provisions is necessary such that an informed selection of sentence could be based on the information collected and collated at this stage. Please see Santa Singh v. State of Punjab, [AIR 1956 SC 526], Malkiat Singh and Ors. v. State of Punjab, [(1991)4SCC341], Allaudin Mian v. State of Bihar, [AIR 1989 SC 1456], Muniappan v. State of Tamil Nadu, [( 1981 ) 3 SCC 11], Jumman Khan v. State of U.P,
[(1991)1SCC752], Anshad and Ors. v. State of Karnataka, [(1994)4SCC381] on this.
Nature of Information to be Collated at Pre-sentence Hearing
At this stage, Bachan Singh (supra) informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at his stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis.
But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender. This issue was also raised in the 48th report of the Law Commission. Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence. Objective analysis of the probability that the accused can be reformed and rehabilitated can be one such illustration. In this context, guideline no. 4 in the list of Mitigating Circumstances as borne out by Bachan Singh (supra) is relevant. The court held:
4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
In fine, Bachan Singh (supra) mandated identification of aggravating and mitigating circumstance relating to crime and the convict to be collected in the sentencing hearing.
Chapter 3: judiciary and capital punishments.
• Judicial preview related to capital punishment.
• Between 1975 and 1991, about 40 people were executed. Since 1995 only one execution, that of Dhananjoy Chatterjee in August 2004, has taken place. The number of people executed in India since independence in 1947 is a matter of dispute; official government statistics claim that only 55 people had been executed since independence, but the People’s Union for Civil Liberties cited information from Appendix 34 of the 1967 Law Commission of India report showing that 1,422 executions took place in 16 Indian states from 1953 to 1963, and some have suggested that the total number of executions since independence may by as high as 4,300.
• The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in “the rarest of rare cases.” Capital crimes are murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government, and abetting mutiny by a member of the armed forces. In recent years the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities. Recently, the Indian Supreme Court in Swamy Sharaddananda v. State of Karnataka made imposing the death penalty even harder. The judgment holds that the “rarest of the rare” test prescribed in Bachchan Singh’s case was diluted in the Machchi Singh case. The judgment then goes on to say that the “rarest of the rare” must be measured not only in qualitative but also in quantitative terms. Thus, given that the general crime levels have been worsening since Machchi Singh’s case was decided, the categories of “rarest of the rare” should also change. Therefore, all the categories specified in Machchi Singh need not fit in with “rarest of the rare” today – a lot of the categories are no longer as rare. It remains to be seen post this judgment how Courts will apply the “rarest of the rare” formulation.
• About 40 mercy petitions are pending before the president, some of them from 1992. At least 3 are women. Many more are on death row after having been sentenced to die by lower courts, but on appeal most of them are likely to be commuted to life imprisonment by the State High Courts or the Supreme Court of India.
• It appears that judges in the lower courts are also getting increasingly averse to use capital punishment. For example in 2007 several high profile cases involving pre-meditated cold blooded murders, rape and murder of minors during rioting, terrorist bombings, etc. have not attracted the death penalty. But activists reveal a flaw, that due to the absence of sentencing guidelines in what constitutes “rarest of the rare”, in some less gruesome murders, the lower courts have awarded death sentences possibly due to poor defence presented by the lawyers of the economically backward.
• The death penalty is carried out by hanging. After a 1983 challenge to this method, the Supreme Court ruled that hanging did not involve torture, barbarity, humiliation or degradation.
• At least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to death, according to Amnesty International figures. No official statistics of those sentenced to death have been released. In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty.
• Conversion of capital punishment into life imprisonment.
• According to some researchers “executions maximize public safety through a form of incapacitation and deterrence. Incapacitating a person is depriving him/her of the physical or intellectual power. Executing a person takes away the capacity of, and forcibly prevents recurrence of violence. Deterrence is the act or process of discouraging and preventing an action from occurring. The possibility of execution, thus, gives a potential pause in the thought process of the murderer, using fear as an incentive for preventing recurrence or quite possibly the first occurrence of murder.”
• Opponents of the death penalty argue that although it is said to exist as a crime deterrent, in reality it has no effect on crime at all. “Modern supporters of capital punishment no longer view the death penalty as a
deterrent, but as a just punishment for the crime. Previously, the deterrence argument put the burden of proof on death penalty advocates, but recently this argument has become less effective as in recent years the appeal of deterrence has been supplanted by a frank desire for what large majorities see as just vengeance.”
• The opponents to death penalty argue that criminals who are in the “business” of killing make sure that they do not get caught; they skilfully concoct plans to make sure they are not suspected of criminal activity. A person who gets caught for killing another individual is usually someone who did not plan to murder in the first place. These individuals fall into the “crimes of passion” category. Crimes of passion are defined as unlawful acts of an individual which are unplanned and erupt as a result of a fit or rage or anger. These illegal actions usually stem from drunkenness or a short term loss of logical thinking, which can be attributed to anger. The death penalty would logically deter crime, but the problem is that most murderers are unplanned and are not a result of logic.
• Another reason that many people are against death penalty is that they feel that many a times innocent people are wrongfully executed, all in the name of justice, even though there are many safeguards guaranteeing protection of the rights of those facing death penalty.
• Abolitionists of death penalty want the procedures of punishment more humane and victim-oriented. They argue that the offender be required to compensate the victim’s family with his/her own income from employment or community service. To that end, the offender has to be kept alive. By
working, the criminal also “pays back” the society. For the imprisoned criminal there is no need of monetary compensation for his work. Money is of no value in jail. An example cited in this behalf is the case of Leopold and Loeb, both nineteen years old when they committed “The Crime of the Century” in 1924—kidnapping and murder of a fourteen year old boy just to see what it was like. They were not awarded death penalty but sentenced to life imprisonment. They worked at hospitals, taught illiterates to read, created a correspondence school, made important contribution in the World War II Malaria Project, and wrote a grammar book. “An inestimable amount of people were directly helped by Leopold and Loeb; both of them making a conscious commitment to atone by serving others”.
• Abolitionists also oppose capital punishment as it is cruel and extraordinary. The Eighth Amendment of the United States Constitution condemns cruel and unusual punishment and the abolitionists find it handy to quote in support of their view. However, the US Constitution was drafted when capital punishment was widely practiced and it was not specified as wrong or cruel or unusual. The framers of the Constitution mostly endorsed capital punishment, as also the philosophers of the time.
• Opponents of death penalty point out that expert after expert and study after study have emphasized the lack of correlation between the threat of the death penalty and the occurrence of violent crime. Also, the belief that execution costs less than imprisonment is false. The cost of the apparatus and maintenance of the procedures attending the death penalty, including death row and the endless appeals and legal machinery, far outweighs the expense of maintaining in prison the tiny fraction of criminals who would otherwise be slain.
• Necessity of capital punishment and the deterrent policy.
• What I am of the view is that as we are not a very well-off nation so at first we should investigate as to under what circumstances the person has committed the crime that is to say whether or not he has done that for his stomach. If he has done that just for sake of his stomach then I would say Imprisonment would be more appropriate. Also we should check whether he has committed the crime for the first time if yes then perhaps law can be a little lenient towards him.
However if he happens to be well-off and that he has done under his full consciousness and also if he has committed the crime more than once then I believe that it really is the need of the hour to set some examples for those who dare to commit any heinous mistake and the best way is the so called CAPITAL PUNISHMENT. As the most fearful thing is DEATH so by convicting them with capital punishment will instill fear in the minds of others who chooses such path of crime.
So in short I would summarize:
1. For the needy and the poverty ridden who commits a crime for his survival perhaps can be looked at with a little leniency and can be given imprisonment.
For the first time offender we can as well be lenient
Perhaps people are the best resource a country can have and to lose them any way is a great loss in itself. So in that context Capital punishment is out of question.
Imprisonment would provide them a chance to repent and if good counseling is given then we can bring the best out of him because it just requires a change in mindset to make a person good and make his do good.
1. For those who commits repeatedly there should be no respite because
they are the real bane to the society.
2. Giving CAPITAL PUNISHMENT sets an example for others who may dare to do such things in the future. It makes them think 100 times before ever joining the same group.
3. It eliminates any possibility of a person committing any mistake ever again. Once proved that the person is a evil to our society its a good way of cleaning the environment.
4. Any person who commits the most heinous kind of crime in full consciousness CAPITAL punishment is a must as he can do it any time in the future.
Views of philosophers and other peoples.
1. Capital punishment is a definite different the crime:
The chief argument that is offered to justify the continuances of the capital punishment is that it acts as a different to recurrence of crime. That is the general public when it finds that the wages of murder are death and degradation, deters from of suppresses those emotions which make a man violent and hostile.
Besides of the fear of death is removed from the consciousness of people they would commit murders very lightly knowing that maximum punishment it caught and convicted, they can have is a term in jail. Lambroso was an ardent advocate of death penalty.
However, the empirical evidence does not bear out this argument. In the countries, where death penalty is given, there is no decline in the number of murders year by year, and in those countries where capital punishment has been abolished there is no significant increase in the number of murders.
2. The capital punishment is a moral war:
A disciple of Mr. Lambroso, Mr. Garofalo Ware of the opinion, that capital punishment is a weapon by which the society fights a moral war against the inveterate criminals and incorrigible immoralists. How can society protect itself from the cut-throats, stranglers and sadist rapers?
How can society protect itself from Jack the rippers who have sexual intercourse and then cut out up the victims of their lust into pieces? The capital punishment is the only deterrent for such perverse souls.
3. The capital punishment is a social need:
According to eminent criminologists Victor Hugo capital punishment is a social need and that it is imperative of the maintenance of peace and last and order in the society.
In the absence of capital punishment people would openly resort to murders. Now-a-days, capital punishment has been abolished in a number of crimes but in fact, there has been downward trend in these cases.
4. The capital punishment is a selective process –
According to Hackel, the capital punishment is a selective process. It is a method by which Nature alimantes those individuals who are dangerous for the society and whose continued existence in the society poses a threat to social law and order.
According to Plato, the famous Greek Philosopher, “If a man cannot be harmless otherwise than in sleep, it is better for him to die than live.
However, this view is without any basis. If a man has committed a murder his elimination from the society is no effective solution. As a matter of fact it creates more problems than it allegedly resolves.
Firstly, if a person has been wrongly implicated and certain facts are
revealed after his execution which conclusively proves his innocence a grave injustice has been done and society cannot redeem itself in any way.
Secondly, murders are men of extreme nature and violent passions. They are out of the ordinary. If only there can be suitable environment it is quite possible that these persons may prove out to be mean of extra ordinary abilities who will benefit society a great deal. If the persons are given life term imprisonment instead of death sentence the above problems can be solved.
5. The capital punishment is a legal demand:
The supporters of the capital punishment contend that the capital punishment is a legal demand. If a killer is let off unpunished this would militate against the majesty of the law and gradually the respect for law will vanish from the society and a society which the respect for law is gone will go to dogs.
Moreover if a killer is let off punished, his killing instinct will get a boost and the relatives of the victims will feel depressed, Morose and Sullen. Losing faith in law and justice they may think of avenging the wrong at the personal level. Therefore it is necessary that the law breaker is punished.
6. The capital punishment is definite:
It is argued that .compared to life-term imprisonment, the capital punishment is defective and certain. In jail, the convict can escape. However, this argument though it is merely a truism, does not prove capital punishment to be superior to life term imprisonment.
7. The capital punishment is very easy:
It is argued that capital punishment is very easy, while the other types of punishment are highly complex, intricate and involved. But as Lewis has
argued in his book, ‘Meet the murderer’, “If a man is alive, he has at least some hope even if he is serving long-term imprisonment. There is hospital that one day he may be proved innocent or one day he may realize the folly of his existence on account of which he may undergo conversion and become a new man.”
8. In the penal system death-sentence is essential:
Some criminologists, notably C. Darrow argue that it is feasible to abolish capital punishment as long as the provision of punishment exists in a society.
How can we punish a simple murderer and a cruel murderer like Jack the riper or Boston strangler with life term imprisonment? There are certain crimes for which man must die. He is irretrievably lost.
For example a cruel man who has got into the habit of sucking the blood of luscious women or who inflates them by omnilingus and pumping air into female bodies and thus causes their rusting, such persons deserve not only to die but suffer while dying.
Chapter 4:- Acquittal of capital punishment and its necessity.
• Worldwide scenario.
• Miscarriage of Justice: when we apply death penalty there is a probability of mistaken killings. Of course the probability of innocent execution is rare, but do occur. Over a long enough time they lead to execution of some innocents. If we allow death penalty innocent people will also continue to be executed. This is not morally right because life cannot be restored once taken.
• Capital punishment by its nature is irrevocable. Here the point is that the innocent are sometimes wrongfully convicted and if they receive the death penalty there is no way to correct the wrong done to them. If someone
is executed and later found to have been innocent, there is no way to give him back the life that has been taken because life cannot be restored once taken.
• In a recent survey of professor Hugo Adam Beada and Michael Radelet found that 7000 persons were executed in the USA between 1900 and 1985 and that 35 were innocent of capital crimes. Again also the German refugee scholar and lawyer Max Hirschberg, in his study of wrongful convictions rightly observed, “Innocent people wrongfully convicted are countless.” These all shows us that through a long run the innocent person may be executed. Taking all these into consideration the author believes that the possibility that innocent person could be executed is sufficient in itself to warrant an end of capital punishment.
• When we come to the FDRE criminal law it is designed to contribute towards the promotion of a fair judicial system in the country. However, the author believes that capital punishment can hinder the promotion of fair justice system. In proving whether a person is a guilty of a crime or not there is a general principle that “proof beyond reasonable doubt” required. The writer of this paper think that a higher burden of prove is required when the sentence may be death. Before the government deprive a defendant’s life, it must prove the defendant’s guilt by a standard more vigorous than “beyond reasonable doubt”.
• The term “beyond reasonable doubt” does not mean ‘beyond all possible doubt’. From the term reasonable doubt we understand that there is a doubt but that doubt should be required reasonable. In our criminal justice we don’t have any special procedure for proving capital punishment. The writer think that prove beyond reasonable doubt for a crime of capital punishment causes injustice. This is because even in countries like USA, which have well skilled legal professional and well-organized legal system, mistake in criminal justice is obvious as mentioned above. For instance, between 1973 and 2005, 123 people in United States were released from death row when the
new evidence of their innocence emerged. Therefore, based on the above premises one can imagine how many people may convicted and executed by mistake in developing countries. Based on the above reason the writer think that prove beyond reasonable doubt is not enough for proving the guilty of capital offense entailing death penalty. In order to make a person guilty of capital punishment prove of guilty should be “beyond all possible doubt”. After the judge finds a defendant guilty beyond reasonable doubt it should not proceed to the penalty phase unless it also certifies it has found the defendant guilty beyond all possible doubt.
• In countries like Ethiopia the probability of miscarriage of justice is high comparing countries like United States and other developed countries. In our country many people are living in a poor condition and the numbers of such peoples are high especially by those who commit capital crimes. Most probably they are poor peoples that engaged in committing capital offenses. After committing a crime when they brought to the court they may receive poor legal representative. Usually the quality legal representation is a better predictor of whether or not someone will be sentenced for death than the facts of the crime. Generally, those who are poor in economy cannot afford better legal counsel. Even if state assign for him/her, the assignee cannot fully protect him/her because of less satisfactory of fees or fear of the person if set free. Therefore, due to all the above reasons the use death sentence in our country can possibly cause injustice to the convicted person.
• Usually the famous crime inflicted death sentence in Ethiopia is murder. When we look reasons why people commit murder the living conditions of individuals have its own contribution or impact. Those who are economically poor and uneducated people are most likely engaged in such capital offenses. The murderer may kill individual to get a money or food. It is the writers’ opinion that causing a death of the offender by denying basic needs of him is not fair. If we provide him food, job opportunity, and good living condition he may not engaged in such activities. The writer of this paper believes that capital punishment bias against the economically and socially weaker sections and this contradicts with the principle of fair justice
• The FDRE criminal law says, “Death sentence shall not be carried out unless confirmed by the head of the state. It shall not be executed before ascertainment of its non-remission or non-commutation by the pardon or amnesty.” Those condemned to death have the right to appeal to higher court and to petition for presidential clemency. The president is empowered to commute capital sentence to life imprisonment. The problem arises when the president of the country fail to confirm or commute the death sentenced by the court. According to the FDRE criminal code it is impossible to execute death sentence without confirmation of the president of the country. The criminal code and the constitution of FDRE provide nothing under which condition can the president confirm or not death sentence. It only gives the president discretionary power to judge over the offenders life. Again the time limit under which the president can confirm or commute the sentence of death is not clearly determined in both the criminal code and the constitution. Therefore, the confirmation or commutation of the president may take a long period of time. The long period of putting a person sentenced to death without execution or commutation can possibly cause mental torture over the offender. This violates the human rights of the offender.
• Generally, these all are reasons why I oppose capital punishment for Ethiopian criminal justice system
• Capital punishment related to drug and narcotic offenses.
• The government proposes to drop the mandatory death penalty provision for drug offences through an amendment of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
“In view of the observations of the Standing Committee on Finance made in its report on the Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011, it is proposed to amend Section 31A of the NDPS Act and replace the words ‘shall be punishable with death’ with the words ‘may be punishable
with death’,” The NDPS Act, 1985 has provision for a graded system of punishment, with the quantum of punishment varying with the quantity of drug or substance involved in a case, he said.
The Bombay high court had in June 2011 held that the Section relating to mandatory death penalty was violative of Article 21 of the Constitution (right to life). However, the court’s verdict was given for the accused convicted twice for the offense. The court had observed that second conviction in NDPS case need not be death penalty and it was the sole discretion of the judge of the special court to decide about the capital punishment. The Rajya Sabha was told there was a surge in the number of people prosecuted under the NDPS Act in the last three years and decline in the cases of conviction. As many as 20,364 people were prosecuted in 2011 for their involvement in offenses under the Act as against 19,720 in 2010 and 19,377 in 2009, Whereas, 7,857 and 9,819 people were convicted in 2011 and 2010 respectively. In 2009, a total of 11,418 were convicted for the offenses
There are currently thirty-two countries or territories in the world that have laws prescribing the death penalty for drug offences, a practice that is in violation of international law.1 Drug offenders make up the majority of those who are condemned to die and/or are executed in many retentionist countries. Although comprehensive numbers are difficult to obtain, it is certain that hundreds of people are executed every year for a drug-related offence (and that number would likely reach a thousand if those countries that keep their death penalty figures a secret were counted). Despite these disturbing numbers, the vast majority of executions are in practice carried out by a very small number of states and, while there are still too many states executing people for drug offences, these countries represent an extreme fringe of the international community. Although secrecy remains an obstacle, the Global Overview 2011 estimates that executions for drugs have taken place in just twelve to fourteen countries over the past five years. In the twelve months prior to this report’s publication, it is probable that executions for drugs occurred in fewer than nine countries.2 Furthermore, this report estimates that only 5 per cent of nations actually enforce
mandatory death sentences for drugs in practice. The international consensus against carrying out executions for drugs is becoming ever clearer. Many governments that have introduced capital drug laws do not carry out executions, even if some do occasionally pass death sentences. In fact, a handful of retentionist states have never applied the death penalty to a drug offender. With so few states committed to the practice, capital drug laws would appear to be superfluous to most governments. However, like the death penalty generally, it is difficult to make sweeping assumptions about these sanctions because of their contextual significance and the swiftness with which laws and practices can change.
• Capital punishment to juvenile.
• A “juvenile” means a person who has not completed eighteen years of age. A boy or girl under eighteen years of age is a “juvenile” according to the Juvenile Justice Act (JJA), 2000. Earlier, according to the JJA, 1986, the age of boys and girls were different, but however, the JJA 2000 which repealed the JJA, 1986, brought the age of male juveniles at par with the female juveniles. Another reason for increasing the age of male juveniles by the JJA 2000 is to bring the Indian juvenile legislation into conformity with the ‘United Nation’s Convention on the Rights of the Child (CRC)’. Article 1 of CRC states for the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. Therefore, both the boys and girls below the age of eighteen years enjoy the protection of juvenile legislation.
• The term ‘children in conflict with the law’ as stated by the United Nation’s Children Fund refers to anyone under 18 who comes into contact with the justice system as a result of being suspected or accused of committing an offence. In India, the JJA, 2000 defines “juvenile in conflict with law” as a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of
• II. AGE OF CRIMINAL RESPONSIBILTY AND DETERMINATION OF JUVENILITY
• The law requires and have laid down a minimum age below which a person is exempted for prosecution and punishment. The simple reason behind giving such exemption is the absence of ‘mens rea’ i.e. guilty mind or criminal intent, not to criminalise the acts of those who at the time of commission of the crime did not know the right from the wrong.
• In India, the age of criminal responsibility is fixed at 7 years by the Indian Penal Code (IPC), 1860. “Nothing is an offence which is done by a child under seven years of age.” For the age group of 8 to 12 years, sec 83 of IPC lays down “Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.”. Therefore, to avail this immunity, the accused child will have to prove that he has not attained the maturity to judge what he was doing was wrong. For children between 12 to 18 years, there is no such immunity available. But however, even if they are found to be responsible for criminal acts, they cannot be treated or sentenced in the same manner as adults. Article 37 of CRC laid down that neither capital punishment nor life imprisonment without the possibility of release can be imposed on offenders below eighteen years of age. India, being a state party to ratify the convention, also follows the same policy.
• In the question of the determination of juvenility, there have been several debates as to the relevant date at which the juvenility is to be determined. Though the courts including the Apex court have held the date
of offence was the relevant date, but still in the case of Arnit Das v. State of Bihar, the Supreme Court observed that the juvenility was to be determined on the date on which the offender was produced before the competent authority. This judgement by the two judge bench was widely critiqued as this deprived from the benefits of the juvenile legislation. This decision also did not consider an earlier three judge bench decision of the Supreme Court in Umesh Chandra v. State of Rajasthan where it was observed that the relevant date for the determination of juvenility is the date of occurrence of the offence and not the date of trial. However, this controversy was put to an end by the five judge Bench decision of the Supreme Court in Pratap Singh v. State of Jharkhand and ors.. In this case, the Apex court observed “The reckoning date for the determination of juvenility is the date of the offence and not the date when he is produced before the authority or the court”. The decision of the Umesh Chandra case was held to be proper and the decision of the Arnit Das case was said not to have laid down a good law.
• As per the need of the hour, the JJA, 2000 was amended and the amended definition under sec. 2(l) of JJA, 200 put to rest the debate as to the relevant date at which juvenility is to be determined.
• III. AUTHORITIES AND LEGISLATIONS IN THE INDIAN LEGAL SYSTEM TO DEAL WITH “CHILDREN IN CONFLICT WITH LAW”
• To provide for the care, protection, treatment, development and
rehabilitation of delinquent juveniles and for the adjudication of certain matter relating to, and disposition of, “children in conflict with law”; the JJA (2000) was enacted. The result of this enactment is the provision of setting up of Juvenile Justice Board in every state, a special court to deal with delinquent juveniles, consisting of a Judicial Magistrate of the first class in a non-metropolitan area and two social workers of whom one should be a woman. For ‘children in need of care and protection’, Child Welfare Committee is to be setup in every state. With the enactment of JJA, 2000, it is also required for each and every state to setup Special Juvenile Police Unit (SJPU), to deal exclusively with the juveniles. However, it is required to have SJPU set up by the state governments in every state at the district level, which is non-existing.
• Therefore, criminal cases of juvenile in conflict with law are to be dealt with by Juvenile Justice Board (JJB) and not the regular criminal courts. Section 27 of Criminal Procedure Code (CrPC), 1973 which deals with the provision “Jurisdiction in the case of juveniles”, states that no offender will be punishable with death penalty and imprisonment for life, if it is found that the person is less than sixteen years of age. It is very surprising that though CrPC was amended in the year 2005, sec.27 was not amended or altered to bring in conformity with the existing juvenile legislation. Therefore, this provision of CrPC has become redundant. Though sometime it is debated which law should prevail, but the Supreme Court and other High Courts have held that juvenile legislation shall be supreme in juvenile cases, no matter the nature of offence committed. Furthermore, to avoid any doubt in this respect, sec. 1(4) of JJA, 2000 states “notwithstanding anything contained in any other law for the time being in force the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law.”
• IV. ROLE OF SOCIETY IN THE JUVENILE LEGISLATION
• When the main idea behind the enactment of juvenile legislation was “welfare”, then the society also has an important role to play in matters regarding juveniles. The important sections of the society to provide help can be, the lawyers, policemen, media and other social workers including NGOs. The lawyers can extend a lot of help to the juveniles by providing free legal help and assistance to them. There are many juvenile offenders, who have to suffer a lot only because they cannot afford some lawyers to defend them. Providing free legal aid to them can lessen their sufferings.
• The police personnel and specially SJPU can work together with the social workers or NGOs for better working of the apprehension of juveniles. They can be trained in child psychology and in case if needed, NGOs can seek the charge of the juvenile in the capacity of a “fit person” or “fit institution”. There are also provisions where, the voluntary organisations can set up observational or special homes, in agreement with the state government. Media, also being a double edged tool, can play an important role. Instead of displaying violence and crime; what can be done is that, they can show the violence or the crime scenes, giving the message how bad it is and what happens to the wrong doers.
• Finally, statistics show that the numbers of crimes committed by the juveniles are rapidly increasing. Therefore, it is high time that we start taking care of these juveniles and stop them from treading the wrong path. India, today needs children who can grow up to be responsible citizens of tomorrow.
Chapter 5:- Capital punishment in social scenario.
• Religious views related to capital punishment.
Bible centered persuasion
The issue of capital punishment is related to morality. Morality is part of society’s belief. Society’s belief may emanate from their religion, custom, history, and some other factors attached to cultural values.
The retentionist holds the view that the most drastic form of crime, the taking away of human life, must deserve the most drastic form of punishment. They forwarded the Biblical teaching that “He that smith a man, so that he die, shall be surely put to death”. They also hold principle of ‘lex talianism’ as propounded clearly by the saying “life to life” is a justification for capital punishment. Let us see the status of capital punishment in different religious institutions.
Buddhism is a religion and philosophy founded by Siddhartha Gautama in the North East India, during the period from the late 6th century to the early 4th century BC. There is a disagreement among the followers of this religion as to whether or not Buddhism forbids death penalty.
Chapter ten of the Dhammapada states:
“Every one fears punishment; everyone fears death, just as you do. Therefore, do not kill or cause to kill. Everyone fears punishment; everyone loves life, as you do. Therefore, do not kill or cause to kill.”
The final chapter of the Dhammapada, states, “Him I call Brahmin who has put aside weapon and renounced violence towards all creatures. He neither kills nor helps other to kill.Many Buddhists interpret these sentences as an injunction against supporting any legal measure, which might lead to the capital punishment. However, since interpretation is personal, there is a dispute on this matter.
Historically, most states where the official religion is Buddhism have
imposed death penalty for some offences. Again also some has abolished capital punishment. For example, Bhutan has abolished death penalty, but Thailand still retains it, although Buddhism is the official religion of both countries. Therefore, I can conclude that in Buddhism it is not clear whether death penalty is allowed or not.
As I discussed earlier capital punishment is allowed in Islam. The Qur’an prescribes the death penalty for several offences/crimes including robbery, adultery, and apostasy of Islam. Scholars of Islam hold it to be permissible but the victim or the family of the victim has the right to pardon. That means they can determine whether the offender is to be punished by death or not. In Islamic jurisprudence, to forbid what is not forbidden is forbidden. Consequently, it is impossible to make a case for abolition of death penalty.For these peoples, abolishing death penalty is considered as violating the rules of Qur’an.
Even though capital punishment is condoned in Islamic law or Shari’a law, there is a great variation with in Islamic nations as to actual capital punishment.
Judaism is the religion of Jews. The official teaching of Judaism approve the death penalty in principle but the standard of proof required for the application of death penalty is extremely stringent, and in practice, it has been abolished by various Talmudic decisions, making the situation in which death sentence could be passed effectively impossible and hypothetical.
“It is better and more satisfactory to acquit a thousand guilty person than to put a single innocent one to death”. This famous quotation, which every law student and scholars use, is taken from the 12th century legal scholars , Maimonides. This person argued that executing a defendant on anything less than absolute certainty would lead to slippery slope of
decreasing burden of proof. Generally, in Judaism religion capital punishment exists in principle but the standard of proof required for its execution makes it difficult for its existence and application. It needs absolutely certain standards of proof.
Christian position on the necessity of capital punishment is not of the same. Although some interpret that Jesus’ teachings condemn the death penalty in Gospel of Luke and Gospel of Matthew regarding turning the other cheek, and John 8:7 of the Bible, others consider Romans13:3-4 to support it. There are so many branch of Christian religion (denomination) and their position regarding capital punishment varies from one another.
a. Roman catholic church
The Roman Catholic Church traditionally accept capital punishment as per the theology of Thomas Aquinas (who accept the death penalty as necessary deterrent and prevention method, but not as a means of vengeance. In the history of Catholic Church, Pope John II, condemned the death penalty and the Catholic Church holds that capital punishment should be avoided unless it is the only way to defend society from the offender in question. The catechism of the Catholic Church states:
Assuming the guilty parties identity and responsibility have been fully determined, the traditional teaching of the church, does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against unjust aggressor. If, however, none lethal means are sufficient to defend and protect people’s safety from aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of common good and are more inconformity to the dignity of human person. Today, in fact, as a consequence of possibilities which the state has for effectively preventing crime, the rendering one who has committed an offense incapable of doing harm-without definitely taking away from him the possibility of redeeming
himself-the causes in which the execution of the offender is an absolute necessity are very rare, if not practically non existent.
Generally, in this church, capital punishment is traditionally accepted but scholars of this religion hold the view that if it is possible to deter criminals by means other than capital punishment, it is better to abolish.
b. Eastern Orthodox Church
Eastern Orthodox Church is against the death penalty, believing that killing is wrong in any circumstance. This denomination hold the position that killing is immoral and they sited the Christ’s teaching to love their enemies.
There are so many Protestants and they also take different position regarding capital punishment. Several key leaders early in the protestant reformation, including Martin Luther and John Calvin, followed the traditional reasoning in favor of capital punishment, and the Lutheran Church’s Augsburg Confession explicitly defend it. Some protestant groups have cited Genesis 9:5-6, Romans 13:3-4, and Levictus 20:1-27 as the basis for permitting the capital punishment. Those groups base their argument provisions of the Gospel “Think not that I am come to destroy the law, or the prophets; I am not come to destroy, but to fulfill” People in this category of thought believe that the new testament is not by any means lenient to let the wrong-doer go unpunished. Instead they claim that the church leave the matter of justice to the government in power.
Mennonites Church of the Brethren and friends have opposed the death penalty since their finding, and continue to be strongly opposed to it today. These groups, along with other Christians condemned the use of capital punishment, and they cited Christ’s Sermon on the Mount (Matthew 5:7) and sermon on the plain (Luke 6:17-49). In These provisions Christ tells his followers to turn the other cheek and love their enemies. This generally,
which these groups believe mandates, nonviolence, including to the death penalty.
Generally, the issue of capital punishment is subject to controversy even among religious followers. The supporter holds the view that one must be punished by the supreme punishment, as he has violated the supreme law, that is, the highest sacredness of life. But those who opposes of this view hold Christ’s teaching to his followers to turn the other cheek and love their enemies. Therefore, still capital punishment is subject to argument.
3.Chapter 1: Purpose of research &
5. To gain familiarity with a phenomenon or to achieve new insights into it;
6. To portray accurately the characteristics of a particular individual, situation or a group;
7. To determine the frequency with which something occurs or with which it is associated with something else;
8. To test a hypothesis of a causal relationship between variables.
Prevalence of capital punishment in India.
• Controversies and debates on capital punishment.
• As I have mentioned earlier capital punishment has been one of the most controversial aspects of justice system in the world. Different scholars or thinkers have offered various arguments to support and reject of capital punishment.
• In the history of capital punishment different law enforcement agencies,
criminologists, philosophers, religious figures, and general public have argued about capital punishment from many different perspectives. Still it is subject to controversy that states are not agreed on the necessity of capital punishment. Some believe that capital punishment would deter criminals, while others contend that persons should be punished based on the doctrine of retribution.
• A judge’s most awesome sentencing alternative for those convicted of capital crime is the imposition of death sentence. It is the only sentence that once executed it is irreversible and final. It deprives the convicted person of an ultimate appeal.
• As the 18th century saw the coming of new ideas and thoughts the argument that capital punishment must be abolished get the inertia to counter-act the contrary view. Casare Beccaria was an outstanding person to condemn the use of capital punishment on its publication on ‘Crimes and Punishment’. This contained a general condemnation of the use of death penalty and its tendency to corrupt people rather than to prevent crime. People in different countries divided between two competing ideas having their own symbolic cause either to abolish or retain capital punishment. The argument of both emanate from different aspects of human knowledge.
• The abolitionists are claiming gradual victory from year to year; while the retentionists hold the view that abolitionists didn’t in fact secure victory, since the victory abolitionist claim is based on the number of risks.
• Supporters of capital punishment believe that those who commit a murder have forfeited their right to life. In addition, they believe that capital punishment is just form of retribution that expresses and re-enforces the moral indignation of law-abiding citizens.That means any individual who kills human being must pay for the crime. They believe that capital punishment is morally fitting on the ground that a person who does wrong should suffer in proportion to his wrongdoing. However, the opponents (abolitionists) of capital punishment argue that, by legitimizing the very behavior that the law seeks to repress-killing-, capital punishment is counter productive for the moral message it conveys. Furthermore, they urge, when death penalty is used for petty offences, it is immoral because it is wholly disproportionate to the harm done.
• Again scholars argue whether or not death penalty is more deterrent. Supporters of capital punishment claim that death penalty is uniquely potent deterrent effect on potentially violent persons for whom the treat of imprisonment is not sufficient restraint.According to some thinkers such as Kant, punishment should not only be equal but also be similar to the offence. This is based on the reason that most people will not commit a crime (act of homicide or other crime punishable by death) if they know the consequence of their act, that is, they may be executed as a result. Accordingly, if you steal from him, you steal from yourself; if you kill him, you kill yourself. The point is only law of retribution can determine exactly the kind and degree of punishment but such determination must be made by court of justice not by private individual judgment.
• According to those who favor death penalty, the prospect of capital punishment even perceived from the distance frightens the killer and stops him from committing crime because there are peoples who are more deterred by horror of punishment than the punishment itself. They hold the view that the fear of loosing once life will stop people from taking others life.That
means they abstain from it by regarding it with horror.
• Death penalty, even in its common sense, is the most feared punishment than other subsidiary punishments. Due to this reason the supporters of capital punishment say that, it is easier for professional criminals to accept imprisonment whatever the duration may be than being hanged or shooted.
• On the other hand the abolitionists hold the view that capital punishment is not a deterrent to capital offences. They argue that the research generally has demonstrated that, the death penalty is not more effective deterrent than life or long term imprisonment. They further believe that such terrible but relatively immediate punishment of execution does not deter criminals, instead they hold a long and painful punishment, that is, long and life imprisonment. This punishment is better depriving once freedom of action and also helps to deter others from such act by taking that example. They rise that in the history, capital punishment was used even for petty crimes and non-deterrence of it. According to their argument, if the capital punishment, in the ancient civilization, did not deter even petty offences like pick pockets or did not keep men from stealing horses or others, how it would keep men from committing murder?  They believe that capital punishment cannot deter criminals from committing such act, even there was a case when a man witnessed the execution of death penalty yet commits murder. Therefore, the abolitionists hold the view that because of all mentioned above and many other similar facts capital punishment has no deterrent effect. And they offer a substitution of capital punishment, which is life imprisonment.
• There is also a dispute whether capital punishment can be administered in
a manner consistent with justice. The supporters of capital punishment believe that it is possible to fashion laws and other procedures that ensure that only those who deserve death are executed. In contrast, the opponents of capital punishment maintain that the historical application of capital punishment shows at any attempt to single out certain kinds of crime as deserving of death will inevitably be arbitrary and discriminatory. Due to this reason they hold the view that it is impossible to fashion laws that execute only those deserving death. They also propose that, even in a well run of criminal justice system, some peoples will be executed for crimes they did not commit. Due to all these reasons abolitionists oppose the application of death penalty.
• Proponents of capital punishment always argue that, execution serve as a strong deterrent for serious crimes and produce the only real assurance that brutal criminals can never jeopardize the society. For these persons putting dangerous persons to death also conforms the desert perspectives requirement that punishment must be in proportion to the seriousness of the crime.They believe that most capital offences must be punished by most severe punishment or capital punishment. For the very serious crime it is better to use serious punishment. For this argument they propose, “Before the brutality the death penalty is considered the brutality the offender showed the victim must not be forgotten.”
• However, the abolitionist criticized the death penalty, pointing to its consequences, like its finality, brutality of the act and mistakenly executing of innocent person. Death penalty by its nature has a final consequence. Once one is deadly punished everything become final. He has no any chance to survive again. This makes its brutality higher than other punishments. Again also mistake is unavoidable task in our life. Once we engaged in work there are so many possibilities to commit a mistake or fault. Since mistake can and have been made in its imposition, the innocent
have been executed, and of course, that there is no remedy for any such mistake. Due to such reasons abolitionists condemn the applicability of death penalty.
• To put all in a nutshell, capital punishment is as controversial as any issue in criminal justice. According to the proponents of death penalty its use is justified in terms of just-deserts; taking of the life of one who has taken another’s life is the only just retribution. They support their argument by the Biblical prescriptions of the eye-for-eye …life-for-life.
• Supporters also argue that, death penalty is necessary to deter others from committing murder and other terrible offences and that without it there would be little reasons for criminals to refrain from killing. According to those peoples, if the death penalty is not allowed a person who commits certain crimes will leave without loosing anything.
• They also argue that, capital punishment is the only way for assurance of a criminal not to commit a murder or other crimes again. Once a person is deadly executed he/she has no chance to commit another crime. This saves the community from crime. But in case of life imprisonment criminals (prisoners) may commit a crime in a prison or outside the prison. Therefore, they conclude their argument killing criminals is considered as assuring person or community from terrible made by such individuals and it is considered as assuring person or community from terrible made by such individuals and it is considered as the best way to protect the peace and security of the community at large.
• The proponents again hold the view that the death penalty is an essential social symbol, expressing the boundary of our cultural standards of decency and humanity. It is better to set outer limits beyond which unnecessary behavior cannot be tolerated. According to those persons, death penalty is clear and firm statement of our outrage at and repulsion for murderer’s acts.
• The opponents of death penalty highly criticized the necessity of death penalty. They maintain that historical evidence indicates that there is a diminution in capital crimes, even when death penalty was rapidly and publicly used.As I have mentioned earlier capital punishment is the oldest method of punishing criminals, but the simple fact is the frequency of application seems to have no relevance to the crime rate. Those groups of people say that if deterrence theory worked, theoretically there should be a decrease in serious crime when death penalty is used and increase when it is forbidden.
• The opponents also insist that a person sentenced to death suffers more than his victim suffered. This excess suffering is not proper according to rule of retaliation (lex talions). Of course, one cannot know whether the murderer on death row suffers more than his victim suffered; however, unlike the murderer the victim deserved none of the suffering inflicted. Becarria argued that, by killing of a murderer, we encourage, endorse, or legitimize unlawful killing. According to him the physical similarities of punishment to the crime are irrelevant.
• Opponents also maintain that the publicity surrounding an execution may attract unbalanced people to commit capital crimes rather than deter potential murderers, as the seek the attention given to a person being
executed and therefore commit crimes in order to be on center stage themselves. These all are some among many arguments raised by different scholars towards capital punishment favoring and opposing its application.
Arguments for the death penalty
• Appropriate for some crime
Capital punishment permanently removes the worst criminals from society. It is appropriate for some crime such as murder, rape.
It is Justice, not Laws that cures the society. And Capital Punishment is the only Justice that suits a murderer. – Saqib Ali
It saves money compared to the alternative of life in prison.
Execution is a very real punishment rather than some form of “rehabilitative” treatment, the criminal is made to suffer in proportion to the offence.
The death penalty deters murder and prevents murderers from killing again by putting the fear of death in to would be killers.
• Public safety
Once a convicted murderer is executed, there is no chance that he will break out of jail and kill or injure someone.
Arguments Against the Death Penalty
• The value of human life
Human life has intrinsic value. They believe that the value of the offender’s life cannot be destroyed by the offender’s bad conduct – even if they have killed someone.
• The right to live
Everyone has an inalienable human right to life, even those who commit murder; sentencing a person to death and executing them violates that right. An example – a person forfeits their right to life if they start a murderous attack and the only way the victim can save their own life is by killing the attacker.
The medieval philosopher and theologian Thomas Aquinas made this point very clearly:
Therefore if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good… Therefore to kill a man who retains his natural worthiness is intrinsically evil, although it may be justifiable to kill a sinner just as it is to kill a beast, for, as Aristotle points out, an evil man is worse than a beast and more harmful. (Thomas Aquinas, Summa theologiae)
Aquinas is saying that certain contexts change a bad act (killing) into a good act (killing to repair the violation of justice done by the person killed, and killing a person who has forfeited their natural worthiness by killing).
• The possibility of error:
Sometimes a person might be put to death that is innocent.
The death penalty legitimizes an irreversible act of violence by the state
and will inevitably claim innocent victims. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated. (Amnesty International)
In 1987, a study was published by the Stanford Law Review. They found some evidence that suggested that at least 350 people between 1900 and 1985 in America might have been innocent of the crime for which they were convicted, and could have been sentenced to death. 139 “were sentenced to death and as many as 23 were executed.”
• Capital punishment is cruel, inhumane, and horror
Regardless of the moral status of capital punishment, some argue that all ways of executing people cause so much suffering to the condemned person that they amount to torture and are wrong. Some consider capital punishment to be cruel and unusual punishment.
• Unfair Judgment
Generally, it is observed that Capital punishment is inflicted unduly on the poor and minorities. Because the poor can offer very low compensation the defense lawyers are often incompetent, resulting in losing the case.
• Lack of Deterrence
The death penalty has not been shown to be effective in the reduction of the homicide rate. There are some indications that executions actually increase the murder rate. Actually capital punishment does not deter violent crime. According to a New York Times study, the last 20 years witnessed 48% homicide rate in states with the implementation of capital punishment compared to 23% in the states without capital punishment.
• The prolonged uncertainty
The validity to the deterrence argument is annulled by the delays, endless appeals, retrials, and technicalities that keep persons predestined to capital punishment waiting for execution for years. In fact, we are not competent enough to carry out execution. This uncertainty and incompetence offers another great injustice. It is itself cruel and a form of torture.
• Justifying circumstances
Sometimes, persons suffering from emotional trauma, abandonment, violence, neglect or destructive social environment commit such heinous crimes. These mitigating situations can have devastating effect on their humanity. So, it is unfair to hold them fully responsible for their crimes. It is our communal responsibility to show some sympathy to some extent.
• Suffer criminal’s family
By giving capital punishment, the family of the victim is permanently traumatized and victimized. They are often punished by their loved ones without their fault, even though they are innocent.
• Effects on society
Capital Punishment is itself a premeditated murder. This is unacceptable even it is inflicted by state authority as it lowers the value of life. In fact, such act can only brutalize the society. “Revenge is essential” can become a society attitude. By witnessing such acts, our own mental makeup starts believing that violence is necessary to curb the wrongdoings.
• Lack of jury convictions
Some jury members are reluctant to convict in murder trials because of the possibility of executing an innocent person. Thus, many killers go free and are never punished.
• Capital punishment is unnecessary
Killing a murderer does not bring his victim back to life. It achieves nothing but the death of still another person.
One way of settling the issue is to see whether states that don’t use capital punishment have been able to find other punishments that enable the state to punish murderers in such a ways as to preserve an orderly and contented society. If such states exist then capital punishment is unnecessary and should be abolished as overly harmful.
• Human rights and International views.
A unique facet of the modern debate about capital punishment is the characterization of the death penalty as a human rights issue, rather than a debate about the proper punishment of criminals. Modern opposition to the death penalty is seen as a reaction to the political history of the 20th century, most notably the Holocaust—the systematic mass killing of Jews and others during World War II (1939-1945). All the major nations in Western Europe utilized capital punishment prior to World War II. After the defeat of the National Socialist (Nazi) and Fascist governments of Germany and Italy, those two nations became the first major powers in Europe to abolish capital punishment. The postwar movement to end capital punishment, beginning in Italy and Germany and then spreading, represented a reaction to totalitarian forms of government that systematically violated the rights of the individual (see Totalitarianism).
The human rights focus on the death penalty has continued, especially in settings of dramatic political change. When people view capital punishment as a human rights issue, countries that are becoming more democratic have been eager to abolish the death penalty, which they associate with the former regime and its abuses of power. For example, a number of Eastern European nations abolished capital punishment shortly after the collapse of communist regimes there in 1989. Similarly, the multiracial government of South Africa formed in 1994 quickly outlawed a death penalty many associated with apartheid, the official policy of racial segregation that had been in
place since the late 1940s.
All major international human rights declarations, conventions and covenants stipulate that every one has the right to life, liberty and security of person. The debate about death penalty does not usually employ the terminology of human rights. Nevertheless, the use of death penalty intersects with international law and is challenged by it.
The reasons why countries abolished death penalty in increasing number vary from one country to other. For one state, it was broader understanding of human rights. For instance, Spain abandoned the last vestige of death penalty in 1995 stating that “… the death penalty has no place in the general penal system of an advanced civilized society…”. Similarly, Switzerland abolished death penalty because it constituted “a flagrant violation of right to life and dignity”. Of course, those countries who retained the death penalty in their national laws have their own justification and their justification also vary from one state to other state. In places like Soviet Union it might be preventing embezzlement, in Singapore it might be preventing drug traffic, in Nigeria it might be preventing armed robbery, in United States it might be deterring murder, in Guatemala it might be preventing revolution and in countries like Ethiopia it might be preventing counter-revolution. Generally, those countries that have retained and abolished capital punishment has their own justifications.
Defining the death penalty as human rights issue is a critical first step, but one may resist by countries that aggressively use the death penalty. When the General Assembly considered a resolution in1994 to restrict the death penalty and encourage moratorium on executions, Singapore asserted, “capital punishment is not a human right issue”. In the end, 74 countries abstained from voting on the resolution and it failed. But for an increasing number of countries the death penalty is a critical human right issue. In 1997, the United Nation High Commission for Human Rights approved a resolution stating that “the abolition of death penalty contributes to the enhancement of human dignity and to the progressive development of human
rights. This resolution is strengthened in subsequent resolutions by a call for a restriction of offenses for which the capital punishment can be imposed and for a moratorium of all executions, leading eventually to abolition.
Generally, under this chapter whether the imposition of death penalty contradict with human right laws or not will be discussed clearly and briefly. In order to come up with the conclusion the writer will try to see the death penalty with some fundamental human rights provided under the FDRE constitution and other international human rights.
3.2.1.Right to Life and Death Penalty
Just like birth, death is the supreme mystery of our lives, and no violence must be interfere with this natural process; we come into this world and leave it according to rules that were created before man.
The FDRE constitution provides under Article 15 that “Every person has the right to life. No person may be denied of his life except as a punishment for a serious criminal offense determined by law.” In doing so, this provision creates the basis for the death sentence as the ultimate punishment for grave crimes. The question raised here is whether the state should take away something it cannot give.
When we come to Article 10 of the FDRE constitution, which declares “human rights and freedoms emanating from nature of mankind are inviolable and inalienable”. Right to life is one among rights emanating from nature of mankind. The above article unequivocally declares that humans by virtue of their nature possess human rights and freedoms and they are inviolable and inalienable. This is because of the fact that they flow from and protect human nature, which could be endangered if these rights are taken away. Right to life is not a privilege granted by the state to the individual but it is inherent in the human being by the very fact that he/she is a person. There is no external granting authority such as state or society. If we were granted natural rights by the state, for instance, then there is no sense of
speaking about natural rights because the would be the same as civil rights and legal rights.
Blackstone has placed the human life at the apex: “life is the immediate gift of God, a right inherent by nature in every individual… of such high value…”. It is recognized that the right to life is the most fundamental and basic human rights. Indeed, the right to life is the fountain from which all the other human rights spring and it therefore deserves the greatest respect. The UN commission on Human Rights affirms the significance attached to the right to life in its saying ‘for the people in the world today there is no important question than those of preserving peace and ensuring the cardinal right of every human being namely the right to life.’ Therefore, it is possible to conclude that all rights derive their authority from the right to life.
Like the FDRE constitution, some international laws provide death sentence with the right to life. All major international human right declarations, conventions and covenants stipulate that everyone has the right to life, liberty and security of person. The official position of UN General Assembly is that it is desirable to abolish the death penalty in all countries and that the crime to which it applies should be progressively reduced. Death penalty is the ultimate denial of the right to life.
Death penalty is a criminal punishment imposed on individual for committing certain serious offenses. Different types of punishments are designed to serve their goals by depriving the criminal the enjoyment of certain rights. For example imprisonment restricts the individual’s freedom of movement. There are also other forms of criminal sanctions, which limit the criminal’s choice of action. Likewise death penalty militates against the individual’s right to life. Death penalty is a system of punishment by which the state takes away the life of individual criminal for the evil he has committed. However unlike other punishments, once a person is punished by death he/she loose his/her right to life and it cannot be re-exercised. This makes death sentence more serious than others.
When we look the FDRE constitution it recognized the inviolability and inalienability of natural rights, and Article 14 specifically recognized inalienability of right to life. According to our constitution we do have not only natural rights but also these are “inalienable” rights. What does the word inalienable right mean? Black’s Law Dictionary defines inalienable right as “rights, which are not capable of being surrendered or transferred without the consent of the one possessing such rights”. This means that inalienable right is right that cannot be taken away or cannot be transferred.
There are rights like constitutional, civil and legal rights. These rights are alienable rights. Since they are alienable the granting authority can take them away, which is the source of the rights in the first place. However, our constitution provides a special term that inalienability of right to life, security and property of person under Article 14. However, this paper only rely on the right to life.
As mentioned earlier right to life is a natural right that fall under Article 10 of the FDRE constitution. Again also according to both Article 10 and 14 of the FDRE constitution, right to life is inalienable right, which is not granted by state or society but from nature. Therefore, it cannot be forfeited or transferred. The question raised here is if we accept the idea of inalienable right to life as declared in the FDRE constitution Article 10 and 14, how we advocate capital punishment?
If the right to life is truly “inalienable right” the state cannot take it away and no person may transfer it or forfeit it. That is the very meaning of inalienable right. The writer of this paper believe that the right to life is inalienable right granted by our constitution and once we subscribe the notion of inalienable right to life, we can’t advocate death penalty at the same time. Since our constitution clearly provides the inalienability of right to life this right cannot be taken away or given up. It is part of the nature of the person as human being. The writer of this paper argued that death penalty is unconstitutional because it violates the inviolable human right, right to life, constitutionally guaranteed as per Article 14 of the
FDRE constitution. This is because the fact that capital punishment takes away more than the right to life, for it takes life itself.
In the recent decades, United Nations, under UN Resolution 2857 of Dec. 1971, The Second Optional Protocol to the International Covenant on Civil and Political Rights (1989) and the Commission on Human Rights, Resolution 8, (1998), tries to abolish death penalty or limit the offenses for which the death penalty may imposed.
Again also European Additional protocols and Protocol to the American Convention on Human Rights To Abolish the Death Penalty (1990) recognized the incompatibility of death penalty with the right to life and other human rights and abolished the death penalty.
Traditionally, capital punishment was accepted punishment for the serious criminal and it was not deemed contradicts with the right to life. However, today the attitude modern societies have towards death penalty is changed. International tribunals recognized that human right norms must be interpreted in an evaluative dynamic manner. Even if death penalty was not deemed contradict with the right to life in 1948, 1957, or 1969, it may well be today or at some future date.
The writer of this paper believes that the highest possible punishment should not be death penalty because a state that respects life being sacrosanct should not lawfully murder. Today, when the world is moving towards abolishing death penalty from the globe, when UN is encouraging the abolition of death penalty for enhancement of human rights, when death penalty is considered as non-civilization, Ethiopia still remained the death penalty in the New FDRE criminal code of 2004. As I have stated in chapter two of this paper, there are many provisions entail death penalty in FDRE criminal law of 2004.
Therefore, the writer of this paper conclude his idea that it is not wise to retain death penalty in Ethiopia at present time, when the death penalty contradicts the inalienable right to life provided under the constitution,
and when awareness of people towards human right is more developed and when so many countries of the globe adopt and ratify protocols explaining the inhumanity of death penalty and abolish it.
3.2.2.Freedom of Torture and Death Penalty
The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of the 1984 defines torture as “any cruel act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on person for such purposes….” The FDRE constitution provides prohibition against inhuman treatment in Article 18. It says in full “Everyone has the right to protection against cruel, inhuman, degrading treatment or punishment”. What kinds of punishment are categorized as cruel and inhuman treatment? There may be a number of possibilities to categorize certain punishment as cruel or inhuman. It might be suggested that, for example, punishment that are painful and infrequently administered. The interpretation of cruel and inhuman punishment is subject to problems. One may reasonably argue that the meaning of “cruel and inhuman” punishment reflects the consensus of public opinion at any one time.
Article 5 of the Universal Declaration of Human Rights states that no one, for any reason, under any circumstances, even in national emergencies should be subject to cruel, inhuman or degrading punishment. When we look Article 6(2) of the ICCPR, it retains the death sentence for “the most serious offenses”. Again Article 6(6) of the same covenant declares that ‘Nothing in this article [Article 6] shall be invoked to delay or to prevent the abolition of capital punishment by any state party to the present covenant. Furthermore, when we read Article 7of the covenant declares, “No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.”
There are a human right lawyers who could argued that, notwithstanding Article 6(2) of ICCPR, a dynamic interpretation of Article 7 of the same covenant (“no one shall be subjected to torture or to cruel, inhuman, degrading treatment or punishment”), ought to be interpreted to denounce any
imposition of capital punishment. Usually even those who impose it do not deny the cruelty of death penalty. This is because it is impossible to punish a person by death without torturing or inflicting some pain to the offender. However the cruelty of death penalty is justified. It is justified in the same way that those who carry out them justify all violations of human rights. It is justified in the same way that when authorities tried to justify Dean Tshenuweni Simon Farisani’s treatment and the treatment of others in south Africa, when they told him, as you will recall, it is better for one man to be killed than the whole society to be troubled; it is better for few people to be tortured the whole society to be troubled. They justify torturing individuals as for the protection of the whole society. That means it is better to sacrifice the individual for some higher cause.
Death penalty by its nature is “cruel and unusual” or “cruel, inhuman, or degrading.” The constitutional court of South Africa that the state’s death penalty statutes in1995, under a clause of its interim constitution forbidding “cruel, inhuman or degrading treatment or punishment.” Again also European court of Human Rights and some national courts have held that, even if capital punishment is not prohibited, the period of waiting prior to execution may itself produce a form of inhuman and degrading treatment or punishment. According to the definition of torture, in Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, it is not only physical suffering that can be considered as torture and cruel punishment but also mental suffering. When we come to our country, Ethiopia there is many people sentenced to death waiting execution. Executions were rarely happened to those sentenced to death. Therefore, to conclude the idea a person sentenced to death is not free from mental or psychological torture until the execution is carried out.
The death penalty defies the right of citizens to be protected from such cruel, inhuman or degrading treatment or punishment. Both inhuman treatment and punishment is prohibited. But what constitute inhuman and cruel under Article 18 of FDRE constitution is subject to controversy. It needs interpretation to what constitutes cruel, inhuman, and degrading treatment or punishment. And the interpretation of this provision seems the defendant
is the beneficiary of the doubt.
Torture cannot be separated from the death penalty. Death penalty may be just punishment for certain heinous crimes but no injustice is done if we refrain from imposing death penalty. Even the government that practices it universally condemns torture. Usually supporters of the death penalty justify that they are going to kill these people because they deserve to die. They deserve to die because they committed acts, which put them outside of the human race. They say that it is foolish to talk about their having human right-they can’t have human rights. The government applied death sentence always tells that it is not that they are torturing, disappearing or locking up people; but torturing, disappearing or locking up “terrorist” or “communist” or “counter revolutionaries” or others because of their acts should no longer treated as part of human race. The author of this paper think that such governments do not like to be reminded that the very meaning of human rights that they are inalienable. Such rights are not awards given by government for good behavior. It is difficult to kill or torture people if you regard them as being human.
To conclude the idea under this topic, death penalty can be categorized under the inhuman, cruel and degrading treatment or punishment and it contradicts with the rights provided under Article 18 of the FDRE constitution. The writer further believes that in refraining from imposing death penalty the state contributes to reducing our tolerance for cruelty and thereby fosters the advance of human civilization. Article 25 of the FDRE constitution provides the right to equality and equal protection of the law of all people. All person whether criminal or not has the right to equal protection of law. However the cruel and inhuman punishment inflicted on person while execution of death penalty also violates the equal protection of the law provided under Article 25 of the FDRE constitution. Due all these aforementioned reasons one can possibly say death penalty is unconstitutional and violates fundamental human right laws.
3.3.The Deterrent Effect of Capital Punishment
Under this topic the writer will raise whether the death penalty is more deterrent than others. If the death penalty is needed to deter future murderers, that would be strong reason in favor of using death penalty, since otherwise we could be sacrificing the future victims of potential murderers whom we could have deterred. Most abolitionists believe that death penalty does not deter more than other penalties.
The death penalty poses a set of distinct question of philosophical, political and criminological nature. Although different states abolish capital punishment for different reasons they share common grounds that of the inhuman, unnecessary and irreversible character of capital punishment, no matter how cruel the crime committed by the offender. Besides, the international communities as the whole, in so far as both the Rome Statute of The International Criminal Court and the United Nations security council Resolution establishing the International Criminals Tribunals for the former Yugoslavia and for Rwanda do not provide the death penalty among the range of sanctions, even when the most serious crimes, including genocide, crime against humanity, and war crimes are to be tried.
As discussed earlier in the first chapter of this paper deterrence can be categorized into specific and general. Here we will try to discuss whether capital punishment deters the crimes more than other penalties in Ethiopian context.
1. Specific Deterrence
The FDRE criminal law has incorporated capital punishment to prevent wrong doers from committing further crimes or another crime. This is the specific deterrence character of our criminal justice. This is revenging the offender for his/her wrong. We are going to kill the offender, but frightening, unpleasant, or fear are nothing for the offender who is going to die. Since once a person died has no chance to leave again frightening, unpleasant, or fear of the offender have nothing to do not to commit further crime. This contradicts with the objective of Ethiopian criminal law. Modern criminal laws do not take revenging the offender as their objective. Capital
punishment is the most severe and inevasible punishment that is considered as a fitting to the crime committed. It indicates that killing a person who has killed another person.
Our previous government used death sentence as revenge. This is today characterized as the act of undemocratic states that only wants to satisfy their interests not public interest. When we kill the offender to deter him, we are calling another commission of crime from the side of the offender’s family and imposing a pain on the family and relatives of the offender. This may cause another problem. For example, when the offender is killed the relatives of the offender may incite for revenge against the victims family. Due to this reason, punishing the offender by death may result with a long bloody conflict and hostility among society. This may contradict with the very purpose of Ethiopian criminal law as expressed in the FDRE criminal code as to ensure order, peace and the security of the state, peoples, and inhabitants for public good.
People may commit crime by the influence of different reasons. It may be when they need to possess certain things, because of mental factors such as emotionality and anger; economic problem such as poverty or lack of opportunities and other problems. However, capital punishment does not consider these situations as stipulated under the FDRE criminal code. The writer of this paper believes that killing someone never solved any problem never benefit the whole society. The society may be benefited from the rehabilitation of the offender.
Again also the very purpose of our criminal justice is not to create pain to one part of society and to create happiness to the other part of society. Rather it is generally for the societal happiness and protection. However, when death penalty is applied, we are imposing psychological pain on the victim’s relatives and society. We are putting the family of the offender without any assistance. These all makes capital punishment non-deterrent.
2. General Deterrence
This is the assumption of criminal law that punishing criminals discourages other potential offenders from committing crime. It is difficult to measure the effectiveness of the fear of punishment on prospective wrongdoers, except as to certain widespread statutory violations, such as petty motor vehicle offenses, black marketing etc. The theory of general deterrence as discussed in chapter one believes that the threat of punishment deters prospective offenders in the general community. It is based on the assumption that criminal behavior can be prevented if people are afraid of penalties. The FDRE criminal law provides this term in the article one of the codes. It reads as “… to make them [the offenders] a lesson to others”. However there are many reasons that make ineffective capital punishment as general deterrence. The following are some among many;
Some offenders who are engaging committing capital crime want to achieve their goals. They know the probability of response or attack from the victims or other persons during the commission, probability of loosing their life, and probability of punishment by death. Knowing these all when a person engaged in committing capital crimes, death penalty fail to deter such persons.
As discussed in chapter two of this paper the FDRE criminal law encompasses over thirty-two articles that may entail death penalty. One may comment that we have the “bloodiest code” the twenty first century witnessed, when the ‘eye for an eye’ mentality should be part of history we frown up on. But the history of punishment shows that there is no necessary correlation between the severity of punishment and the incidence of the crime. This is understandable when the fact of the complexity of the causation is born in mind. This may also shows the non-deterrent effect of capital punishment.
Article 117(3) of the FDRE criminal code says in full: “death sentence shall not be carried out in public by hanging or any other inhuman means.” However, it did not clearly express the mode of executing death sentence. The execution body only knows the means of execution. According to the writers view it is difficult to deter prospective offenders and educate the people without observing and knowing the means of execution. This is because
the death of the offender and place of execution may impose on the prospective offenders the threat of fear. Therefore, non-disclosing the means of executing capital punishment by itself put in question the deterring effect of death penalty.
Generally, capital punishment cannot deter prospective offenders or its deterring effect is not this much important. Humanistic values, ethical points of view and human rights reasons weighed in favor death penalty. For our criminal justice the writer personally opt for more humane, but also more effective, criminal justice system paved the way for considering appropriate alternative criminal sanctions to the death penalty. The writer further assume non-lethal penalties such as long term or life imprisonment instead of death. Based on all these mentioned above life imprisonment is more deterrent than death penalty.
chapter 6: Conclusion and suggestions.
As it is clear from the discussion punishment is the reaction of society against a person who breaches the social order. In order to protect the rules and the society the state applies punishment to those who transgress beyond their rights. The purpose of the criminal law is to prevent the commission of crime against the public at large by providing punishments as a major means to deter offenders and potential offenders and to rehabilitate offenders as well as to enforce the social and public morality.
So far I have tried to show historical evolution of capital punishment in abroad and Ethiopia. There are a number of possible arguments for both sides of the coin. In an attempt to be fair, I have touched up on the main arguments for and against capital punishment.
Capital punishment is one among different punishments applied for guilty of crime. It is a punishment made by killing an offender who commits a specified crime in a judicial system. Historically minor offenses were punishable by death. Different arguments have been offered in support of capital punishment and against capital punishment by modern thinkers and
others. The opponents argued on the ground of deterrence, retribution, community protection and so on. On the other hand the opponents argued on the ground of non-deterrence, vengeance, human right violations and so on. Even the religious followers hold different view as to the necessity of capital punishment. Historically different modes of execution of capital punishment, which were considered as cruel and inhuman, were applied.
The other thing is international movement of abolishing capital punishment. There are organizations like United Nations, European Union, and Inter-American states organizations that play a role in abolishing a capital punishment. There are also human right defenders like Amnesty International and Human Rights Watch that argued for the abolition of capital punishment in order to protect human rights. To day almost 2/3 of the world countries in the world abolished the death penalty in practice and by law.
The writer of this paper believes that capital punishment is not as deterrent as life or long-term imprisonment. This is proved by the studies made in different countries. If we punish a person by death small person witnessed such execution may be deterred from capital offenses. But in case of long and life imprisonment there is a probability that many person witnessed his punishment and those persons may be deterred from capital offenses. In addition to this capital punishment has a retrospective affect. That is, it comes after society is attacked, and the peace, order and security of the state are already disturbed. It is better to use imprisonment (long term or life) instead of capital punishment. In case life or long-term imprisonment there is probability of academicals and vocational trainings in prison and through this way prison administration has an important to prevention further crime. This all benefits the society at large.
Rehabilitation is one among purposes of punishment. That means when we punish individual it has a message for him not to commit further crime. Capital punishment does not consider the chance to rehabilitate. Once capital punishment is applied it is impossible to apply rehabilitation theory or to
learn from his bad act. This is because once a person is punished by death his chance to leave again is unthinkable and his rehabilitation too. Therefore rehabilitation is more effectively possible by other form of punishment like imprisonment, fine, etc.
Severity of the punishment is not the solution to the capital crimes. If severity of punishment is the solution to capital offenses then the world could have used capital punishment for every offence and then the world be free from crimes. However, using violent punishments can never halt crime. When I say this I don’t mean that punishment should be abandoned. But punishment should be in such away that it is capable of deterring and rehabilitating criminals. Many factors contribute to the growth of crimes. We should go to the roots crimes and then try to find solution to them. For example, those people who engaged in criminal activities are especially those who have no job, food and other materials needed for their life.
Mistake is unavoidable task in execution capital punishment. Human judgment is not perfect; nor human wisdom is infallible. In execution of capital punishment miscarriage of justice are possibly occurred for different reasons. It must be conceded that the drastic and irrevocable punishment should be banned forever. If we abolished capital punishment miscarriage of justice also shall be disappeared.
Capital punishment discriminates against the poor. Because of capital punishment unequal application of the law takes place due to the poorness of those convicted person. The poor do not have the means to hire lawyers. One may say that the constitution gives the right for the accused to have a lawyer at the expense of the government if he is unable to have one. But practically such lawyers do not show the interest to defend their clients. Hence in most cases the poor are subjected to capital punishment, not because they are criminal but because they cannot be afford to have lawyers. This problem is worse especially in poor countries like Ethiopia.
There is no repayment for the destruction of something irrevocable. The only practical alternative to killing the worst the criminals we have is keeping
them locked up for life. By doing so offenders will come good people. If death penalty is applied it can create unpleasant pain top the community, avoid economic benefit of the offender and the state, which can get during and after rehabilitation.
Death penalty is retained in our laws. But the FDRE criminal law fails to identify the modes of execution of capital punishment. Even though the 1957 penal code provides two modes execution, hanging and shooting, the new FDRE criminal law is not clear as to the mode of execution of capital punishment. The mode of execution is not publicly known. This is the secret only known by the executing organ. The author of this paper believes that non-disclosing the mode of execution of capital punishment shows non-transparency of government as to this matter. If death penalty is mandatory to be retained in Ethiopia it is better to specify the mode of its execution. Again also proof of guilty should not only beyond reasonable doubt rather it should be beyond all possible doubt.
Death penalty violate fundamental human rights like the inalienable right to life, freedom of torture and cruel punishment, which is constitutionally guaranteed. Since those of life and torture cannot be separated from capital punishment it is better to abolish it forever.
Using the experience of those country which abolished death penalty and has lower crime rates it is better to take in to consideration our capital punishment. Generally, for all mentioned above the writer conclude that it is good if we abolish death penalty from our laws.
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 supra note 178
SOME ANCIENT FORMS OF EXECUTION