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A CRITICAL STUDY ON CAPITAL PUNISHMENT

Capital Punishment we all heard this term in a country like India where there is a legal death penalty. It is the most controversial topic as time passes. The concept Capital Punishment originated from the Head-related Latin word 'Capitalism.' It is the sanction that is basically bestowed on a person who has committed the horrific criminal acts. So we can say it's a process in which a person's death occurs for his criminal offense ordered by the court of law in most extreme and horrific crimes in India, death penalty is issued. It's different from country to country, from state to state, and from country to nation. However, the judicial decree is the term used when a person is punished in this way is a death sentence whereas the real slaughtering of the convicted party is an implementation.


Death penalties are assigned in Indian Penal Code in numerous offences such as rape, waging rebellion against the people, conspiracy to murder, misdemeanor with assassination and counter - terrorism etc. India's president has the authority to commend the death penalty as provided for in the Indian Constitution. Immutability distinguishes this penalty from any other sanction provided for in section 53 of the IPC. A guilty person can never be brought back to life once executed for death. If any chance error occurs while deciding a matter, it cannot be rectified later.

  • CASES INVOLVED IN DEATH PENALTY IN INDIA


  • BACHAN SINGH VS STATE OF PUNJAB

One of the landmark cases judgments of Bachan Singh was uphold by the apex court the Supreme Court of India the Court held that section 303 of IPC is unconstitutional. In the judgement, it was mandatory to give death sentence to offenders.

  • MITHU VS STATE OF PUNJAB

In this case, the five-judge constitutional bench held to interpret the constitutional validity of a death sentence in the murder cases (section 302, IPC) and in the CRPC ‘special reasons’ are provided for brutal verdict. The Court decided to capital punishment was given only in the rarest of cases.


  • JAGMOHAN SINGH VS THE STATE OF U.P.

In this case, it was about constitutional validity of capital punishment in relation to the fundamental rights of accused i.e. cousin of Jagmohan Singh under Part 3 of the Indian Constitution.

  • METHODS OF IMPLEMENTATION OF DEATH PENALTY IN INDIA

There are 2 major and most popular methods used in death penalty in one of rarest of rare cases in India which are as follows:


HANG TILL DEATH:

Criminal executions are held out in India by hanging the law breaker until demise. In 1949, our Father of Nation was assassinated i.e. Nathuram Godse killed Gandhi. He became the first individual to be hung up till death in Independent India. Earlier, the Apex Court stated that the death penalty would be imposed in the 'rarest of rare' cases.

Two individuals were executed till 2010. One of those is Afzal Guru, the assaulted inhuman jihadist and terrorist who attacked behind India’s parliament that was held in December 2001. Death implementation occurred on February 9, 2013 in the premises of Tihar Jail, which is in Delhi, through the hanging method. The second is Ajmal Kasab, who was also a sole militant in the 2008 Mumbai invasion that NSG captured in the Taj hotel. His death was executed in the early hours of 21 November 2012 in Yerwada Central Jail, Pune.


SHOOTING:

The Army Act of 1950 as well as the Air Force Act of 1950 provides us with a means of granting the death penalty. It facilitates the judiciary to implement capital punishment on the crimes specified in the section 34 of the Air Force Act, 1950.

Section 163 of the Air Force Act, 1950 tells that:

In awarding a death sentence, a court martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he’s dead or shall suffer death by being shot to death.”

The Court is granted unlimited authority to execute the capital punishment by either getting shot or hang. Similar laws are provided for in the Army Act 1950, the Air Force Act 1950 and the Navy Act 1957.

  • CRIMES ASSOCIATED TO DEATH PENALTY

Here are mentioned those inhuman heinous offences which deserve death penalty:


AGGRAVATED MURDER

A person who kills another person shall be sentenced to death underneath section 302 of the Indian Penal Code of India. In the landmark case i.e. Bachan Singh case, it was held by the Court that the capital punishment is applied only in the rarest of rare cases.


OTHER CRIMES RESULTS TO DEATH

According to the IPC, a person who commits murder during an organized robbery will be awarded the capital punishment &he himself held liable for the death penalty.


TERRORISM RELATED OFFENCES; NOT RESULTING IN DEATH

The use of improvised explosive devices in huge variations to smash a specific site where people live and work that actually harms the existence of a person or harms the possessions of an individual that truly deserve capital punishment.


RAPE CASES

Under the 2013 Criminal Law Act, a person that harms people in sexual assault must be awarded the death penalty irrespective of the fact that he passes on or leaves in a permanent vegetative state. Even the Gang rapes are punishable with death penalty. It was found out after the horrific inhuman incident of famous DELHI NIRBHAYA GANG RAPE CASE which led the entire nation to unite and speak out against this in 2012.

Criminal Law Ordinance, 2018 indicated that an individual rape a girl under the age of 12 might be given the life detainment or sent to the jail for a long time along with the fine. In 2018, a reform was introduced which meant that the capital punishment was imposed on a person involved in gang rape of a girl under the age of 12. Such amendments were introduced after the case of 8-year-old child, Asifa Bano who is from Jammu attracted a particular consideration as the political turmoil was involved.


KIDNAPPING, NOT RESULTING TO DEATH.

Under Section 364A of the Indian Penal Code, abduction without murdering the person is also a criminal act which deserves death penalty. In any unusual circumstance in which they kidnapped and took measures to kill any individual which ultimately leads to death, then the chance of capital punishment will also be increased.


DRUG TRAFFICKING NOT RESULTING TO DEATH

If any person attempts to conduct any form of drug smuggling or engaged in any of drug related actions can be questioned to prosecute to death and sentenced by the Judiciary for the death penalty.


TREASON

The individual who attempts to step against the government by raising weapons or may be supporting the marine, military or air wing officers, troops or citizens to send rebellion would be held accountable for capital punishment.


MILITARY OFFENCES

If any member of an Army, Navy, and Air Force commits abetment of assault, mutiny or any other related offences, shall be punished by death penalty.


OTHER OFFENCES

  1. If a person is engaged in any illegal activity, in order to execute criminal offense then he is subject to punishment and may be punished with death penalty.

  2. Any criminal that attempts to murder a lifetime prisoner is punished by capital punishment if that victim was injured during attempt.

  3. Whenever an individual attempts to provide fabricated testimony against the innocent individual, while knowing the fact that doing so will amount to imprisonment and capital punishment and later if it resulted in the death of an innocent individual then the individual who provided false proof would also have been given the capital punishment.


  • CATEGORY OF SOME CRIMINAL ACTIVITIES EXEMPTED FROM DEATH PENALTY

  • MINOR

According to the Indian constitution, a person who is below 18 years of age when he committed the crime could not be made accountable for death penalty.


  • PREGNANT WOMAN

This amendment was made in year 2009 which protects a pregnant lady from death penalty who was involved in a criminal activity. She may deserve death penalty but the life which is there in her body did nothing and is innocent.


  • INTELLECTUALLY DISABLED

An individual who commits heinous crime or criminal wrongdoing while being calmly and rationally sick and tired or incapable of understanding the nature of the demonstration, he performs is problematic, cannot be punished.


  • CRIMINOLOGICAL APPROACH OF CAPITAL PUNISHMENT

There are 2 important theories of capital punishment in Indian Judiciary which are mentioned below:


  1. REFORMATIVE THEORY

Mahatma Gandhi stated that "an eye for an eye makes the whole world blind" This statement is the primary point of reformist philosophy in death penalty. Such theories are founded only on the idea of reforming criminals. The ideas are primarily aimed at healing incarcerated offenders through independent or individual care. The primary motive of such a reform theory is to enlighten the violators or we can reform them by ourselves. Because of his own betterment, a wrongdoer is punished. All of these theories were supported from different angles or sides. The philosophy of reformation backs criminology. Criminology claims that a diseased phenomenon, any offense is a moderate form of mental illness. The reforming hypothesis is endorsed by criminal history, criminal anthropology, and psychoanalysis. The primary purpose of this philosophy is to change criminal minds in a safe and secure way and, then, they can live a good life like a person. The hypothesis condemns all manner of corporations


  1. PREVENTIVE THEORY

“Prevention is better than cure”

Preventive theory’s primary goal is to drive criminals away from the general population. The primary objective of punitive action, as per the preventive theory, is just to set a good example for others to prohibit people from criminal activities. This argument also notes that the criminals will be prosecuted with capital punishment, life in prison. Most constitutional ideologues welcomed the preventive theory as this theory endears the Penal Code. Most intellectuals interpret the principle of deterrence as having a major impact on criminals. The primary objective of such a concept is to take precautions or interventions such that after receiving punishment, the convicted party does not commit the offence. This same preventive theory describes that death penalty is perhaps the most severe punishment as an individual has taken another individual's life because of the detrimental effect. Therefore he is accountable for depriving himself of his existence. In India we follow the principle of prevention.


  • CLEMENCY POWERS

The President of India does have the right and authority of 'issuing clemency' in situations in which the Supreme Court punished the prisoner with capital punishment. When the President doesn't really approve parole then perhaps the punishment is upheld and the prisoner is not given any remorse. However, this delay has now become a basis for commuting the capital punishment to life in prison without parole in many of the cases. The prisoner could not, therefore, get capital punishment. The President of India has the authority to issue clemency as mentioned under Article 72 of the constitution of India that is the main cause behind the postponement in justice. It is not easy for individuals to determine whether to approve a petition of mercy or not.

Hence sometimes the discussions are often too lengthy and unimaginative. The apex court of India i.e. the Supreme Court has made every attempt to clear the prosecutions in this type of case. This is not fair to have an infinite length of time in order to struggle for Justice.

  • CONCLUSION

Since the ancient period, death penalty has been practiced. Yet other nations revoked the death penalty. If we look at the overall crime rate statistics, capital punishment hasn't really shown to be dissuasive in attempt to induce crime; crime rates are rising rapidly day by day. So, the regulations must be restructured, specifically in the context of capital punishment. Through changing the system against death penalty, the lives of countless innocent people will be secured. Then, the children, women, and elderly people will be safe and secure and will feel more comfortable and confident. Justice that is properly delivered encourages the nation resident to place their strong trust in the government.

The point about death penalty is that this is permanent, it's hard to modify. Individuals who are not guilty will die because of inappropriate judgment. Therefore, vital proof, proper documentation and true inquiry will be carried out because no innocent person is punished. Judiciary will guarantee that the proceedings are treated with caution.

India's judicial system contains various stages for judicial proceedings. Despite of this, offenders had already made fun of this and, consequently, rate of criminal activities have risen. The absence of evidence regarding defendant offers criminals a way of escaping and save themselves from imprisonment and penalties. Court hearings have been satire.

Nations like Netherlands and Holland have seen a noticeable increase in their crime rate since they revoke/outlawed capital punishment. Hence, we draw the conclusion, consequently, that perhaps the capital punishment must be applied wherever it is essential and appropriate for the heinous inhuman offences which go beyond forgiveness.


  • REFERENCES

  • History of Death Penalty- Findlaws.com

  • Capital Punishment in India- Wikipedia.org

  • Critical analysis of Death Penalty in India- Research Paper


SUBMITTED BY:-

SUPRIYA TIWARI

BBA LL.B. (H)

AMITY UNIVERSITY

NOIDA





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