Also referred to as “Death Penalty”, Capital punishment is the lawful infliction of death as a punishment and since ancient times it has been used for a wide variety of offences. The word “capital” comes from the Latin word “capitalis”, which means “regarding the head”. Capital punishment is a practice in which prisoners are executed in accordance with judicial practice when they are convicted of committing what is known as a “capital crime.” Capital crimes are crimes deemed so heinous that they should be punishable by death. Worldwide, this practice is extremely controversial, with a variety of concerns ranging from human rights to economic efficiency being raised in discussions about capital punishment. At one point and time capital crimes where punished by severing the head. Capital punishment has been used in societies throughout history as a way to punish crime and suppress political dissent. In most places that practice capital punishment today, the death penalty is reserved as punishment for premeditated murder, espionage, treason, or as part of military justice. In some countries sexual crimes, such as rape, adultery and sodomy, carry the death penalty, as do religious crimes such as apostasy (the formal renunciation of the State religion). In many retentionist countries (those countries that use the death penalty), drug trafficking is also a capital offense. In China human trafficking and serious cases of corruption are also punished by the death penalty.
Madras High Court decision on Rajiv Gandhi killers evokes debate on death penalty in India: After the political controversy over the hanging of Rajiv Gandhi’s assassins comes a legal one. The Madras High Court has suspended the execution, scheduled for September 9, by eight weeks. It should be noted that Santhan, Murugan and Perarivalan - all convicted for being part of the group that conspired to kill the former Prime Minister in 1991 - were sentenced to death by the Supreme Court in 1999. Their mercy petitions, filed 11 years ago asking for their sentence to be commuted to life in prison, were rejected earlier by President Pratibha Patil. On the face of it, there seems to be good justification for staying the executions —scheduled for 9 September —by eight weeks. The three were convicted and their death penalties confirmed 11 years ago, and this fact alone establishes a strong case for clemency. In a previous judgment, the Supreme Court has said that clemency pleas should be disposed of within three months of a death penalty being confirmed. Failing this, it would amount to mental cruelty to the condemned person and his or her relatives. All the three convicts have waited almost 11 years for their death and this seems enough reason for granting them clemency. Interestingly, with the aim to save the three convicts, the Tamil Nadu Assembly has also adopted a unanimous resolution asking President to reconsider their mercy petition. This decision of the TN Assembly is definitely going to set bad examples for other states, which can also pass resolutions in the future for cancellation of mercy petitions of their beloved criminals. Against the backdrop of High Court ruling, the things are definitely going to get harder to resolve. The politicians will only be encouraged to play more politics with condemned men and their relatives – prolonging everybody’s agony. The questions that the HC ruling has raised are: (a) First, the main issue right now is whether the death penalty is a good thing or not. (b) Secondly, the delay in the execution for 11 years points to the failure of the executive to do its job. The successive governments have been sitting on mercy petitions for years on end for lack of political courage. (c) Thirdly, is it cruel to keep a prisoner on death row for so long? We need to understand that the convicts and their families have suffered mentally. Their families certainly must have suffered from not knowing whether their convicted relatives would be reprieved or not. (d) The ban-the-death-penalty supporters seem to wake up only when someone is actually on the threshold of a hanging. This is opportunism of a different kind. One need not doubt their sincerity, but trotting out the same old arguments against death penalty just when justice is at the point of being done is simply not on.
Delay in disposal of mercy petition erodes right to personal liberty: The delay in disposal of mercy petitions by the government is not new in India. For example the mercy petition in Rajiv Gandhi murder case was delayed by almost 11 years when on August, 11, 2011 the President of India ruled out the mercy petition and ordered the execution of the convicts. The indecision and delay by the government in deciding mercy petitions has created a huge backlog and the result is that the fate of convicts is hanging in between; they are dying every day in wait of their death to come. The delay in deciding a mercy petition not only causes trauma to the convict but he can also exploit the situation at a later stage to escape the capital punishment. It can affirmatively be said that the delay in deciding the mercy petition is unconstitutional and illegal and is a clear violation of Article 21 of our constitution (Protection of Life and Personal Liberty). It’s thus imperative that the government should avoid undue delays in deciding the mercy petition to avoid the adverse implication for the victims, the convict and the society at large.
Capital punishment and statutory framework in India: In India, the provisions relating to capital punishment are embodied in Indian Penal Code and Criminal Procedure Code. Indian Penal Code is the substantive law, which suggests the offences, which are punishable with death sentence. Criminal Procedure Code is the procedural law, which explains the procedure to be followed in death penalty cases.
Let us now look at some of the provisions of the Indian Penal Code that provide for the imposition of Capital Punishment:
- (a) Section 121 provides that whoever wages war against the Government of India or attempts towage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine.
- (b) Section 124 - A provides death penalty for sedition.
- (c) Section 302 of Indian Penal Code is the most important section in the jurisprudence of Capital Punishment. It prescribes death sentence for the offence of murder.
- (d) Section 396 states that “If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life.
Pardoning powers under Constitution and judicial review regarding capital punishment: The administration of justice through courts of law is part of the constitutional scheme to secure law and order and the protection of life, liberty, or property. Under that scheme it is for the judge to pronounce judgment and sentence, and it is for the executive to enforce the sentence. Normally this is the procedure. But, sometimes the sentence pronounced by the judge is not carried out as it is. It may be altered into the following forms.
- (a) A pardon releases both the punishment prescribed for the offence and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of law, the offender is as innocent as if he had never committed the offence. If granted before conviction, it removes the penalties and disabilities and restores him to all his social rights. However, pardon is an act of grace and therefore it cannot be demanded as a matter of right.
- (b) Commutation means exchange of one thing for another. Here it means substitution of one form of punishment for another, of lighter character.
- (c) Remission means reduction of the amount of punishment without changing its character.
- (d) Respite means awarding a lesser punishment on some special grounds; for example the pregnancy of a woman offender.
- (e) Reprieve means temporary suspension of death sentence; for example pending proceeding for pardon or commutation.
Article 72 of the Indian Constitution: Under this article the constitution grants power to the President to grant pardon etc., and suspend, remit or commute sentence in certain cases:
- (a) In all cases where the punishment or sentence is by a Court Martial
- (b) In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends.
- (c) In all cases where the sentence is a sentence of death.
Hang them now, hang them not: The recent stay on the execution of Rajiv Gandhi’s killers by the Madras High Court has again brought the issue of capital punishment into national focus. After dealing with the statutory provisions of the capital punishment, let us now concentrate on the larger question i.e. whether capital punishment should be abolished or continued. In the past, capital punishment has been practiced in almost every society. Currently, only 58 nations actively practice it, with 95 countries abolishing it. Many countries have abandoned capital punishment, including almost all European and many Pacific Area states (including Australia, New Zealand and Timor Leste), and Canada. In Latin America, most states have completely abolished the use of capital punishment, while some countries, such as Brazil, allow for capital punishment only in exceptional situations, such as treason committed during wartime. The United States (the federal government and 36 of its states), Guatemala, most of the Caribbean and the majority of democracies in Asia (e.g. Japan and India) and Africa (e.g. Botswana and Zambia) retain it. South Africa, which is probably the most developed African nation, and which has been a democracy since 1994, does not have the death penalty. The debate on capital punishment revolves around number of questions, which are important to layout as a way of summarizing the moral trade-offs off the debate. They include, is capital punishment intended primarily as a punishment? Is it a just and proportional punishment for certain crimes, like murder? Do murderers and some other criminals commit crimes so horrific that they forfeit the right to life? Should innocent life be valued over a murderer’s life, and does capital punishment demonstrate this? Is life imprisonment without parole a sufficient punishment? Is the idea of proportional justice a slippery slope to abusive forms of punishment? Does capital punishment jeopardize our sense of the “dignity of life”? Or, is it important to demonstrate compassion even to murderers by sparing them their lives? Is the purpose of our prison system retribution or rehabilitation?
Let us now analyse the reasons why capital punishment should be and why it needs to be abolished:
Reasons for capital punishment:
(a) The principle of capital punishment is that certain murderers deserve nothing less than death as a just, proportionate and effective punishment. There are problems with the death penalty, but these are with its implementation rather than its principle. Murderers forgo their rights as humans at the moment when they take away the rights of another human. By wielding such a powerful punishment as the response to murder, society is affirming the value that is placed upon the right to life of the innocent person. Many more innocent people have been killed by released, paroled or escaped murderers than innocent people executed.
(b) Prison: There are three purposes for prison. First, prison separates criminals for the safety of the general population. Second, prison is a form of punishment. Third and finally, the punishment of prison is expected to rehabilitate prisoners; so that when prisoners are released from prison, these ex-convicts are less likely to repeat their crimes and risk another prison sentence. The logic for capital punishment is that prisons are for rehabilitating convicts who will eventually leave prison, and therefore prison is not for people who would never be released from prisons alive.
(c) Capital punishment is 100 per cent effective as a deterrent to the criminal being executed; that killer cannot commit any more crimes. As a deterrent to others, it depends on how effectively the death penalty is applied.
(d) A person who has committed a crime like killing or raping another person should be given death penalty, which is as severe punishment as the act. It is said that when a criminal is given a capital punishment, it dissuades others in the society from committing such serious crimes. They would refrain from such crimes due to fear of losing their lives. This would definitely help in reducing crime rate in society.
(e) Cost of Prison: Typically, the cost of imprisoning someone for life is much more expensive than executing that same person. However with the expensive costs of appeals in courts of law, it is arguable if capital punishment is truly cost effective when compared with the cost of life imprisonment.
(f) It is also important for the safety of fellow prison inmates and guards, as people who commit horrifying crimes like murder are believed to have a violent personality and may, in future, attack someone during imprisonment. These reasons emphasize the importance of capital punishment for the betterment of human society. However, there is another section of people who believe that it is an immoral and unethical act of violence.
(g) Some anti-death penalty campaigners describe examples of people on death row, or people have already been killed have then been proved innocent. Today, the accuracy of modern forensics and DNA testing makes it very unlikely for an innocent person to be put on death row. Furthering this point, it is argued that the number of innocent people that may be killed is equalised by the number of actual criminals that are set free.
(h) Criminals who receive the death penalty are typically violent individuals. Therefore for the safety of the prison’s guards, other prisoners, and the general public (in case a death row inmate escapes prison), then logic dictates that safety is a reason for capital punishment.
(i) It is commonly believed that the punishment of a crime should equal the crime, if possible. This is also known as “an eye for eye” justice. Therefore using this logic, the appropriate punishment for murder is death.
Reasons against capital punishment:
- (a) Execution is, in simplest terms, state-sanctioned killing, and it devalues the respect we place on human life; how can we say that killing is wrong if we sanction killing criminals? More importantly, the whole principle is outweighed by the proven risk of executing innocent people. The avoidable killing of an innocent person can never be justified, in any circumstances.
- (b) Not humane: Killing any living being is not at all humane. Even if the crime is committed by any animal it is against the law of humanity to kill back that particular animal. What is humane is subjective to a person’s upbringing, education, beliefs, and religion. Therefore different people interpret what is humane differently. That is the reason some societies have banned capital punishment while some other still maintain it.
- (c) Implementation of the death penalty can cause social or racial bias and in fact be used as a weapon against a certain section of society. Hence this can result in increase in rate of crime in the nation.
- (d) By executing criminals the possibility of rehabilitation is ruled out i.e. we can never expect the criminals to repent their crime that they will serve their sentence of punishment and emerge as a reformed and useful member of society.
- (e) Capital punishment is not always just and appropriate. Usually, it has been seen that poor people have to succumb to death penalty as they cannot afford good lawyers to defend their stance. There are very rare cases of rich people being pronounced capital punishment. Also, an individual from minority communities are more likely to be given death penalty.
- (f) Every human being is entitled to receive a second chance in life. Putting a convict behind bars is always a logical option than killing him, as there is a chance that he may improve. People who have served life sentences are reported to have bettered their earlier ways of living and have made worthwhile contribution to the society.
- (g) It is reported that there is no relation between capital punishment and crime rate i.e. giving death penalty does not decrease crime rate in the society. Crimes are prevalent in countries where capital punishment exists and also where it has been abolished.
- (h) Due to capital punishment the family members of the executed needlessly suffer too, yet the crime itself has victims and family members too.
- (i) Violates Human Rights: Some groups of people deem death a violation of the person’s right to live. Other groups of people disagree that the death penalty is a cruel and unusual punishment. There is no clear definition of what human rights are, so there will always be disagreements with whether it violates human rights.
- (j) Playing God: Some people believe that all deaths should be natural. Other people believe murder is a part of nature.
The debate on this vital issue is seems to an endless one. The debate over the death penalty has in the recent past acquired renewed vigour and passion among the academician as well as politicians. Without a doubt, executions are considered the ultimate punishment for a crime, because there is no repeal from death. The logical alternative for capital punishment is life in prison without parole, yet a lot of nations still perform the death penalty. This is because the debate whether capital punishment is ethical and justifiable is still widely disputed. Thus we can conclude that there will always be debate over whether capital punishment is an effective form of penalty for criminals for as long as it exists because the question whether capital punishment is a moral or an immoral act in a cultured society, does not have a definite answer. Whether to give capital punishment to a criminal or not, may depend on his previous criminal records and the seriousness of the crime he has committed. But, do we really have the right to take the life of our fellow human beings?