INTRODUCTION
The death penalty is a government sanctioned form of criminal punishment, where a person is put to death by the state. Crimes that are punishable by the death penalty are called “capital crimes” or “capital offences”, and often include crimes such as murder, treason, war crimes, crimes against humanity, and genocide. The latest execution of death penalty in India took place in march 2020, when four murder convicts of the Nirbhaya gangrape were hanged. Before it the last death sentence was of the terrorist Yakub Menon in 2015 for 1933 Mumbai blasts. The first execution by death penalty after independence was of Godse for assassinating Mahatma Gandhi. A death penalty or also known as capital punishment is sentencing a convicted criminal offender to death by court of law. In India the execution of death penalty is carried out by two methods those are hanging and shooting. According to Criminal Procedure Code hanging is the method by which all the death penalties in the civilian court in India are carried out, however under the Army Act ,1950 both hanging and shooting are listed as official methods of execution in the military court-martial system. Death Penalty and Trials 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 is punished in this manner is a death sentence, while the actual process of killing the person is an execution. There has been a global trend towards the abolition of capital punishment; however, India has not adopted this position. What makes this form of punishment different from the others is the obvious element of irreversibility attached to it. A man once executed for a crime can never be brought back to life. So if any error has crept in while deciding on a matter, this error cannot be rectified at a later stage. The death penalty has existed since antiquity. Anthropologists even claim that the drawings at Vallaloid by prehistoric cave dwellers show an execution. The death penalty may have its origins in human sacrifices. Capital punishment can be traced back as early as 1750 B.C, in the lex talionis of the Code of Hammurabi. The Bible too set death as punishment for crimes such as magic, violation of the Sabbath, blasphemy, adultery, homosexuality, bestiality, incest and rape. Plato too discussed the scope of the death penalty at length in his laws. During the middle age, the death penalty was characterized by particular brutality. Famous thinkers like Grotius, Thomas Hobbes, and John Locke were also supporters of this form of punishment. The trials by fire, water etc followed during the 1600s can be said to be a form of capital punishment. The modern abolitionist movement started with the works of great Italian criminologist, Cesare Beccaria which convinced many statesmen of the uselessness and inhumanity of capital punishment. During the discussions on adoption of the French Penal Code in 1791, there was a vigorous debate for the abolishment of the death penalty. In the 19th century, the abolitionist movement grew with eminent jurists like Bentham and Romilly supporting such ideas. Michigan in 1846 became the first state to abolish capital punishment followed by Venezuela and Portugal in 1867. As a goal for civilized nations, abolition of the death penalty was promoted during the drafting of the Universal Declaration of Human Rights in 1948. Capital Punishment is currently practiced in 58 countries, including the USA, Japan, Belarus, Cuba, and Singapore. As of 2012, there are 97 abolitionist states. According to Amnesty International, the worst offenders in 2012 were China (1000+ deaths), Iran (314+) and Iraq (129+). The organization confirmed 1, 722 death sentences and 682 executions (excluding China) in 2012. In Europe however, it is now a virtually extinct phenomenon with the exception of the Republic of Belarus. According to a study, about two-thirds of the countries have either abolished capital punishment outright or have not actually executed any death sentences in the last ten years.
PROVISION IN CONSTITUTION AND INDIAN PENAL CODE
This article of the Constitution enshrines the Right to Life guaranteed to every individual in India. The constitutional validity of capital punishment has been called into question several times in the India judiciary and this paper shall try to examine those several occasions. The Indian Penal Code, 1860 awards death sentence as a punishment for various offenses. Some of these capital offences under the IPC are punishment for criminal conspiracy (Section 120B), murder (Section 302), waging or attempting to wage war against the Government of India (Section 121), abetment of mutiny (Section 132), dacoity with murder (Section 396) and others. Apart from this, there are provisions for the death penalty in various legislations like the NDPS Act, anti-terrorism laws etc. The Indian Constitution has provision for clemency of capital punishment by the President. Once the Sessions Court has awarded death sentence to a convict in a case, it must be confirmed by the High Court. Even after that, the convict may prefer an appeal to the Supreme Court. If this also fails the accused has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State. Detailed instructions regarding the procedure to be observed by the states for dealing with petitions for mercy from or on behalf of convicts under sentence of death and with appeals to the Supreme Court and applications for special leave to appeal to that court by such convicts are laid down by the Ministry of Home Affairs. In this respect we may also refer to Article 72 of the Constitution of India.
ANALYTICAL ANALYSIS
Let us now analyse in deeper detail the nature of the capital punishment and its characteristics from the penal and practical point view, in order to try to draw reasonable conclusions. Our work will be developed as a confutation of the classic Retentionist points, in order to achieve a more schematic structure in the quest for clarity. The main reasons for support death penalty seem to be approximately six in a summary formulation: • Death penalty is required by justice • Death penalty vindicates moral order and thus is a symbol of public authority • Death penalty is far less expensive method of punishment than the alternative of life imprisonment • Death penalty is a more effective deterrent and therefore it better prevents crime •Death penalty more effectively incapacitates the offender • Death penalty is the only feasible alternative in many cases So far as the death penalty is concerned, it might seem that once it is granted that human life is sacred or that everyone has an equal right to life, the death penalty has to be morally indefensible. Such a punishment seems to be inconsistent with ideals of human worth and value. The previous historical dissertation was, though, intended to show that equality, respect and evaluation of human life drastically differed in the past. A punishment can be judged cruel and unusual or excessively severe, if it imposes more pain, suffering, loss of rights or other deprivation than is necessary to serve society purposes. Even if a painful death is what it always was, cruelty in human life is not. Cruelty and hence any cruel and unusual punishment, and the excessiveness it implies, take their moral degradation grade from the socio-cultural context, which is not fixed for all time. Everyone agrees with John Locke (1632 – 1704), when he writes “We may punish each transgression to the degree and with as much severity as will suffice to make it an ill bargain to the offender, give him cause to repent and terrify 11 others from doing the like”. Does death penalty fully satisfy these requirements? Punishment should protect and maintain the social order and justice, therefore it should, as far as it is possible, bring back to the right path the felon. The lex talionis has surely a strong moral and imaginative impact to the common fantasy, bringing us back to the time of masked justiciars, however a mutilated thief will be far a heavier burden for society, since his working capabilities have been restricted. Putting to death a murder is always controversial, but killing a criminal for crimes, which do not involve taking away the victim’s life, is unacceptable even in a lex talionis juridical system Conclusion In view of the above discussions, we can see that India’s thinking on capital punishment is still quite muddled up. It is not just a debate of legality and constitutionality of the death penalty but also the moral and social aspects that are related to this controversial topic that have to lead to extensive confusion in this respect. Keeping away the question of law, the question of the death penalty has to take into considerations factors such as public sentiments on one hand and tussle with the moral issue of the “eye for an eye” principle on the other. Also, it is known to us that error in making judgments is only humane and sometimes giving someone a second chance is like giving them a bullet again because they missed you the first time. In the end, I would like to end with suitable quotes which would give the readers divisive aspects of the death penalty to mull over. The Bernard Shaw, an Irish playwright and a co-founder of the London School of Economics: “Criminals do not die by the hands of the law. They die by the hands of other men. Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of the society…..Murder and capital punishment are not opposites that cancel one another but similar that breed their kind.”
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