According to Black’s Law dictionary, capital punishment is the sentence of death for a serious crime. (1) A penalty that makes a person or entity ineligible to participate in an activity that the person or entity previously participated in. (2) This penalty is usually imposed because of some type of gross misconduct.
The term “Capital Punishment” stands for the most acute form of punishment. It is the punishment that is to be awarded for the most heinous, grievous, and detestable crimes against mankind. While the definition and extent of such crimes vary from country to country, state to state and age to age, the implication of capital punishment has always been the death sentence. By common usage in jurisprudence, criminology, and penology, a capital sentence means a sentence of death .
HISTORICAL BACKGROUND
It has been a long-standing crime to get the death penalty. Almost no country in the world has ever utilised the death penalty. The history of human civilisation demonstrates that the use of the death penalty as a form of punishment has never been discontinued. Despite Plato’s argument that it should only be applied to the genuinely evil, the death penalty was regularly used in ancient Greece under the laws of Draco (c. 7th century BCE). These crimes included murder, treason, arson, and rape. Although during the republic citizens were excused for a little time, the Romans also used it for a wide range of offences.
This idea is supported by Sir Henry Marine’s observation that “The Roman Republic did not abolish the death sentence despite its non-use was largely controlled by the practice of punishment or exile and the system of questioning.”
VALIDITY OF THE DEATH PENALTY IN INDIA
The matter of the death penalty has been examined, discussed, and debated for a long time, but no decision has been made about its retention or repeal as of yet. Since the beginning of time, the death penalty has been a form of punishment used to execute criminals and punish the most egregious crimes.
Different nations view crime differently and in different ways. The “an eye for an eye” retributive punishment is preferred in Arab nations, whereas deterrent punishment is used in others. Recently, there has been a shift from punitive methods to restorative and reformist ones, particularly in India.
India is one of the 78 countries that still uphold the death penalty because it will only be applied in the “rarest in the rare circumstances” and for “special reasons” up to this point. However, neither the legislation nor the Supreme Court has provided an answer as to what constitutes a rarest of the rare case or unusual circumstance.
The death penalty is not always abolished by the International Covenant on Civil and Political Rights, to which India became a party in 1979. All that is needed is for:
(1) Death penalty should not be arbitrarily inflicted,
(2) It should be imposed for the most serious crimes.
Thus, the guarantees and prohibitions found in Articles 20 and 21 of our Constitution are the same as the obligations of the International Covenant. Only the most serious acts are eligible for the death penalty, according to the Indian Penal Code. Thus, the Indian Penal Code complies fully with all international obligations. The Supreme Court then instructed the trial court to compile a list of the aggravating and mitigating factors and choose the harshest punishment in another well-known case, Machhi Singh v. State of Punjab. If the judge was left with no other options after taking all of these factors into account, he could then impose the death penalty.
PHASE-WISE CHANGE IN JUDICIAL MIND IN AWARDING THE DEATH PENALTY
The attitude of the Supreme Court of India towards the death penalty has been substantially changed to one of observing more lenience to the offender when his life is in peril. The court has to overcome many fetters imposed by statutes. Thus, in Joseph vs. the State of Goa, Daman . Justice V.C. Krishna Iyer stated that judges are bound by the statutes by the oath of their office . This helplessness is implicit in many decisions and in some cases, the Supreme Court has gone to the extent of mentioning it .
In order to understand the judicial attitude towards the death penalty in the last five decades, this period can be divided into five phases to portray the judicial response to the legislative changes made in this direction in IPC’s as well as Cr. P.C.’s old codes. The five phases may be-
Phase I – When Death Penalty was a rule (1950-55)
Phase II – Age of Judicial Discretion (1955-73)
Phase III – When Life Imprisonment was a Rule (1973-80)
Phase IV – Birth of the Doctrine: “Rarest of Rare Case”(1980-83)
Phase V – Post Bachchan Singh’s Case Era (1980-onwards)
The cases divided into these phases clearly indicate the trend of the judicial mind during the last 50 years.
DESIRABILITY OF CAPITAL PUNISHMENT
The abolitionists argue that even if capital punishment is constitutionally permissible, it is not desirable for society to take the life of a man merely because his mind had at one time derailed and India his variance mind committed a wrongful act. Sometimes, the abolitionists even argue that capital punishment being undesirable cannot be held to be constitutional. On the other hand, the receptionists argue that capital punishment may not foe desirable as a general rule but it may be necessary in certain exceptional cases.
STRUCK DOWN OF THE DEATH PENALTY
Previous research indicates that the administration of the death sentence in India is plainly defective and plagued with error. Since the country’s independence in 1947, this condition has gone largely ignored. As the world gradually abandons the death sentence, it is time for Indian authorities to do the same.
India has entered the 21st century on a note of buoyancy, as expressed by the country’s then Deputy Prime Minister in 2004: “India has acquired a new confidence in what it could achieve and that the twenty-first century would be India’s century.”
As the nation continues to meet its aspirations, it must examine its attachment to capital punishment. Judicial state killing has no place in the modern world and India should abolish the death penalty as soon as practically possible.
SUGGESTION
It seems right and reasonable that the most extreme cases in India involve the use of the death penalty. There are very few cases in which the death penalty is used in India, according to statistics on this subject. There are numerous instances where the Supreme Court commuted the death penalty to life in prison.
The structure of the death penalty has many flaws. The caliber of the attorney representing the accused will determine how the case turns out. Many criminals cannot afford an experienced defence attorney, which increases the likelihood that they will receive the death penalty rather than life in prison. These two offences are closely related, and a defendant who can afford an experienced attorney should do so.
CONCLUSION
139 countries have already abolished the death penalty, and India should follow suit and follow the majority of these countries. The death penalty violates human rights and India’s constitution’s article 21. Alternative methods of punishment for the offender include harsh life in prison without the possibility of parole and no protection from good behaviour relief as described in the prison manual.