WHEN AND WHY CAPITAL PUNISHMENT CAN BE JUSTIFIED?- (Article)

India is a country which is developing day by day due to this crime rates are increasing nowadays. There are many legislation, laws, acts, etc. to stop or control the crime rate but still it couldn't control the crime rate as there is no severe or sufficient punishment for it. To reduce the crime in the country there must be a severe punishment which should be given to the wrongdoer. There are different kinds of punishment like life imprisonment, imprisonment, and capital punishment which is the most severe one of all. Capital punishment has to propound the value of human beings and how to protect them. In India very few people are sentenced to death for their crime, still fewer people are executed from  Capital punishment and this kind of punishment has been practiced for ages. The first five years after the constitution was made the capital punishment or the death penalty was a normal punishment for murder. This practice changed in 1955; in 1955 the session's judge got the discretionary power to either award life imprisonment or capital punishment to the wrongdoer. Then later in 1973 it was amended, by amending the Criminal Procedure Code the session's judge had to give a specific Criminal Procedure Code reason for awarding either life imprisonment or capital punishment. From then the capital punishment is only awarded in the grievous and heinous crimes. In India, (Section-368) of the Criminal Procedure Code gives the legal provision regarding the power of the high court to confirm sentences and annual conviction.

The constitutional validity of capital punishment has been challenged many times but the decision has remained the same and there is no abolishment in capital punishment.

The first case in which the question of the validity of capital punishment was raised was the “Jagmohan v. State of Uttar Pradesh,” in this case, the supreme court held that capital punishment cannot be abolished in the public interest as it violates Article-19 of the Indian Constitution. Capital punishment applied to the doctrine of the “rarest of the rare” case in the case of “ Bacchan Singh vs. The State of Punjab, (1982) 3 SCC 24, 1983 1 SCR 145” and later in “Machi Singh case, 1983 air 957, 1983 SCR (3) 413”, the court laid down the ambit under which the rarest of rare case fall, certain criteria are: Manner of the commission of the crime, Motive of the commission of the crime, Socially detested nature of the crime, Magnitude of the crime and the Personality of the victim. 

Everyone has their own opinion on capital punishment. The opinion of the public on capital punishment differs. This topic is a very debatable topic where each person has their viewpoint on it. The question remains the same the person committing a heinous and brutal crime, should be given a similar punishment or is this going beyond the lines of humanity?  Therefore the capital punishment has both a positive and negative effect on the individual and society.

Therefore here are some arguments in favour and in against of capital punishment:

·        ARGUMENTS IN FAVOUR  CAPITAL PUNISHMENT 

It discourages others from doing such a crime. If there is no such kind of punishment in the law people will not fear anything before doing such heinous crime. It has been seen that the increasing number of capital punishment has reduced the crime rate. Some activist claims that the number clearly shows how this practice is a good way of preventing crimes.

The death penalty has an inverse relationship with the crime rate. If there is no law like capital punishment there will be no fear in the minds of criminals. A crime like murder, assault does not have sufficient intensity of the punishment than the criminals have nothing to fear about and having no grave consequences to face which will encourage them to commit more such crimes. Therefore, it is necessary to have capital punishment.

Every citizen has the basic right to be safe and live their life peacefully.  But in recent times crimes are touching peaks like murder, rape, etc. Criminals who do not value the life of others are committing such crimes. Therefore it is fair to punish them in the manner they deserve.

Capital punishment is constitutional and does not violate human rights. The main reason for the controversy is the pain that the criminal goes through during the process of execution. However, the methods are being adopted for painless and easy execution of the criminals. The pain is almost non-existent as a drug is used to put the criminal in a coma-like state before execution. Therefore, no rights are being violated by carrying out capital punishment and it is no form of torture.

·         ARGUMENTS AGAINST CAPITAL PUNISHMENT

In some cases, capital punishment can be extreme. The person who committed the crime with men's rea or criminal intent is an essential mental element considered in the court proceedings to determine whether the criminal guilt is present or not. Therefore if the person has committed the crime with men's rea it is justified. However, there are some instances in which the criminal is suffering from a mental disorder or is a person with unsound mind where he requires help not this kind of grave punishment. There are also some cases where a crime has been committed impulsively, without having any intentions of doing so. Hence it can be generalized as to which crimes deserve what kind of punishment.

It is not very uncommon that innocent people are sentenced to capital punishment even when they haven't committed any kind of crime. Many, a time an innocent person is convicted for the crime and punished. In such a situation capital punishment can seem much brutal. 

Capital punishment is not humane. Killing a person is not at all humane, even if the criminal has not valued the other person's life. Humane is subjective to a person's upbringing, education, beliefs, and religion. Therefore, killing someone because he killed someone is not humane there should be reformative theory to reduce the crime rate and to punish the criminals. 

Many countries have abolished capital punishment. India's thinking on capital punishment is still inconclusive. It is not only a matter of legality and constitutionality of capital punishment but also the matter of morale and social aspects of the society. But when we look at the national statistics of the death penalty it has not proved to be deterrent for doing offenses, the crime rates are increasing only. This means that capital punishment does not have a positive effect on the crime rate of the country. We can see that there is a need to reform a proper law specifically for the death penalty in India.

Capital punishment has not proved to be deterrent for doing crimes; people are still doing such a heinous crime after so much of awareness and knowing the seriousness of the crime and how grave the punishment could be. But the question arises that if capital punishment is overthrown will it reduces the crime rate? 

Eventually, in my view the answer is no, people are not afraid of doing such crime even after knowing the consequences of such crime. If there is no fear of capital punishment it will increase in the increasing number. People doing such crimes will do it freely without any fear of law. This would be unfair in the part of the victim who lost his or her life or family. So, it would be justified if people who do not value the life of others deserve to die, deserves the death penalty. Sometimes giving someone a second chance is like giving someone a bullet again because they missed you the first time.

But the conviction of the innocent person should not be justified. There should be a proper judicial system which ensures that no innocent person should be convicted of the crime which he or she has not committed, not just in criminal cases but also in the civil cases no innocent person should suffer for crime or offense which he or she has not committed.

Therefore, this topic has no black or white answer on this topic it will be grey until there is no clear discussion on the death penalty. Until then what is required is a careful examination of facts and evidence by the judiciary in every such sensitive case to avoid the possibility of facts of error. Also, India lacks an authentic statistical database of the number of convicts being sentenced to death and executed concerning various other factors that gives us a clearer picture of what needs to be done ahead. Hence, it is an inconclusive matter. I believe that because of the death penalty there is fear in the minds of people and if it would be overthrown the condition would be worst. I believe that people who go out prepared to take the lives of other people forfeit their right to live. I believe that that death penalty should be used only very rarely, but I believe that no-one should go out certain that no matter how cruel, how vicious, how hideous their murder, they will not suffer the death penalty. 

At the end I would like to recommend that the current capital punishment contains numerous numbers of flaws which should be corrected immediately. There should be sufficient discussion on the issue of whether to retain or to abolish the capital punishment among the association and promote public discussion on the same. The judicial system should be improved regarding the capital punishment; no innocent person should be convicted. The court trail should be stricter at the time of capital punishment. Prisoners should be educated such that they come to be a normal human being who earns in a legal way than using illegal means and to realize disclosure of information on capital punishment.

 - Anushka Sharma

Amity Law School.