Capital Punishment'

By Prafulla Kumar Majhi

There has been much debate around the globe on the status and necessity of capital punishment or death penalty for a crime.Whenever there is talk of capital punishment about to be executed the debate makes rounds in various circles.In the context of India there is provision for death penalty in the Indian Penal Code and the Bharatiya Nyaya Samhita for serious crimes like murder,terrorism and certain rape cases.The Supreme Court of India reserves the penalty for the rarest of rare cases in most heinous crimes thereby shocking the collective conscience of society.In the light of certain countries abolishing the penalty while others retaining the same and human rights organisations around the globe speaking against it ,an impartial study on its necessity  becomes  all the more important.

    Capital punishment takes two factors into consideration i.e.Retribution and Deterrence.In the first place the principle ‘an eye for an eye’ is followed  making it clear that the criminal should get a befitting punishment.Secondly it is assumed that if the penalty is executed it will deter or prevent people from further committing the crime out of fear.The penalty is also justified on the grounds of safety thereby eliminating the criminal for good and social order thereby expressing commitment of the society towards condemnation of heinous crimes.Despite the justifications it is often argued that the punishment is unconstitutional violating man’s right to life and the purpose of deterrence is also defeated without being able to control crimes.

    In ancient India capital punishment was a part of the legal system to ensure deterrence and social order.Crimes like murder,treason,theft and rape were given this penalty.Texts like Manusmriti and Arthashashtra also prescribe the punishment and empower the king to order for its execution.At the same time Hindu law also considers cases of repentance and scope of reform with respect to the criminals.

     With both Hindu and Islamic Law making capital punishment part of the legal system it continued in mediaeval India with room for relaxation in the case of repentance and scope for reform.Methods of execution also differed sometimes being severe while at others being lenient.It was upto the ruler to have the final say on the punishment.Certain rulers followed a lenient policy considering the degree of crimes while others implemented it strictly to ensure deterrence and social order.

       In India the Indian Penal Code of 1860 was enacted by the British which provided for capital punishment for crimes like murder,treason and waging  a war against the state.

The British Government used it as a tool to hang Bhagat Singh for his revolutionary activities which caused widespread resentment.After independence the Government of free India continued the Indian Penal Code of 1860 but inserted Article 21 in the Indian Constitution ensuring right to life and personal liberty of its citizens.Despite much discussions and debates on the issue the penalty has continued in India till date.

Arguments in favour of capital punishment-

1)Long tradition in India and around the globe-Capital punishment has had a long tradition in India and the world with the sanction of religious texts.It has been a powerful tool in the hands of the ruler for the protection of his kingdom.Hieuntsang,the Chinese traveller in his memoirs has mentioned that punishment was severe during the time of Samrat Harsha which deterred people from committing crimes out of fear.

2)Retribution-En eye for an eye or justice to the victim is the principle behind the penalty.The punishment should match the severity of the crime.It is often seen that the victim’s family members express their happiness over death penalty of the criminal.

3)Deterrence-Capital punishment deters people from further committing crimes out of fear.

4)Safety-The criminal should be eliminated from the society in the interest of the safety of the people.There is also financial gain as the convict need not be fed life-long.

5)Social Order-The ruler or government maintains social order by way of condemning crimes and anti-social activities through this punishment.People are forced to think that the state is committed in this direction.

6)Religious Sanction-Religious texts like Manusmriti advocate capital punishment in the interest of the state.Islamic Law or Sharia also impose death penalty under the principle of retribution.However in both the cases there is room for pardon.Most people have the tendency to misinterpret religious laws.

7)Textual Sanction- Kautilya’s Arthashashtra advocates capital punishment and empowers the ruler to use it as a tool in the interest of the state.

Arguments against capital punishment-

1)Severe punishment-Capital punishment is the highest and severest form of punishment for a criminal.In certain countries it is given in the cruellest manner.The Supreme Court of India has therefore in its ruling restricted it’s imposition to the rarest of rare cases.

2)Inhuman act-It is really inhuman to take one’s life.Though the criminal has committed a serious offense in turn he is also losing his life by somebody.

3)Anti-constitutional-Most countries around the world enshrine a set of fundamental rights which safeguard his life and personal liberty.Article 21 of the Indian Constitution is contrary to the Indian Penal Code provision of death penalty.

4)Against human rights-Except for a few autocratic countries the whole world now has entered a democratic setup where charters of human rights have been adopted.On the one hand there is advocacy of human rights while on the other there is law for taking one’s life.

5)Scope for substitute-There is scope for substitutes.Death penalty is often commuted to a term of life imprisonment.If the crime is most heinous life imprisonment till death can be a good substitute.Under no circumstances should the convict come out of jail till his death.

6)Victimising innocent people-It may so happen that due to error in presentation of evidences and witnesses not the convict but in his place an innocent person may get the capital punishment.To err is human and there may be mistakes during the proceedings of the trial.

7)Momentary and impulsive action-A person commits a crime in a momentary and impulsive action.A normal person hardly commits a murder.But it does not mean that the judicial system in an impulsive action orders somebody to be killed.

8)Not being able to stop crimes-The penalty has shown mixed results.Capital punishment or for that matter any other punishment has not entirely been able to eradicate crimes from the society.

Though the majority of the countries around the globe have abolished the penalty countries with half of the world’s population still retain it.Islamic Law or Sharia prescribes capital punishment for certain crimes with proper procedure and a fair trial.It also makes provisions for pardon by the victim’s family upon mercy or by accepting blood money.                                           

Even the most developed countries have not yet done away with the penalty and in certain countries severe methods like shooting ,beheading and stoning to death are still followed.But the time has come for the modern and civilised world to brood over the matter in the light of repeated moral arguments,debates,discussions and protests by human rights organisations.The UNO may take up the matter with its member countries and there must be international conferences on the matter.

Along with seminars and conventions the government,the judicial system and organisations working in this direction should sit together,consider the pros and cons of the case and come out with decisions as to whether the penalty should be abolished for good and if so what are the probable alternatives.Time has changed and the voice of the people cannot be suppressed for all times to come in a democratic setup around the globe.

By Prafulla Kumar Majhi