A deeper look at history of death penalty: An analysis - The Daily Guardian
Connect with us

Legally Speaking

A deeper look at history of death penalty: An analysis

Published

on

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.”

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

Published

on

The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

Continue Reading

Legally Speaking

Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

Published

on

The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

Continue Reading

Legally Speaking

Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

Published

on

The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

Continue Reading

Legally Speaking

‘The crime committed has to be considered in the remission or premature policy of the state’

Published

on

The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

Continue Reading

Legally Speaking

Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

Published

on

The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

Continue Reading

Legally Speaking

Bank case rejected by Supreme Court against farmer

Published

on

The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

Continue Reading

Trending