- England and US are one of the few countries of the West where capital punishment is legal.
- India follows the doctrine of rarest of the rare for awarding capital punishment.
- In the Middle East, where Sharia Law is followed, capital punishment is legal.
- Capital punishment is legal in 56 countries all across the world.
- In Saudi Arabia, 81 people were executed in public which is the world’s largest mass execution of the time.
The rights vested in individuals by the Governmental authorities ensure the basic living standards for the individuals. While individuals stand for their rights, individuals are required to respect each other’s rights even. Crime leads to an individual infringing the rights of another individual. Hegel’s views present that “The criminal act is a negation, and punishment is the negation of a negation". Punishment is the measure opted by the judiciary to restore the infringed rights. The beliefs behind awarding punishment are:
A. Making the wrongdoer suffer is right and just act.
B. Inflicting punishment of the wrongdoer would discourage any further occurrence of the crime.
One of the most stringent and severe forms of punishment is capital punishment. It is also referred to as the death penalty, it is the order passed by a competent court of law for the execution of the offender. Capital punishment has always existed in the history of human civilization as a mode of punishment for most serious and heinous crimes such as treason, murder, rape, and homicide. Right to Life is an integral right and that very right is infringed by the judiciary by awarding offenders capital punishment. Ab initio, granting capital punishment was a common practice, however, with the progress in society, constant debates revolving around capital punishment have sparked time and again.
Reports from Amnesty International show that status quo capital punishment has been abolished in law for all crimes in 104 countries, it has been abolished for less serious offence in 8 countries, it has been de-facto abolished in 28 countries and it is still retained and in practice in 56 countries- Saudi Arab is one among them. In a recent incident, 81 people were mass executed in Saudi Arabia. In this module, the comparison between the capital punishment of the West, Middle East, and India will be drawn. In India, the doctrine of rarest of rare is used as a measuring stick for awarding capital punishment.
THEORIES OF PUNISHMENT
Capital punishment is different from all other forms of punishment because of its unique nature of being irrevocable. Capital punishment is the product of the primitive theory of punishment that propounds "limb for limb; eye for eye; ear for ear; etc., etc.,". There are four theories of punishment- reformative preventive, retributive, and deterrent.
The reformative theory of punishment is a humane approach of punishing the wrongdoers where regardless of the offence the wrongdoers have committed, they are still considered as a person and make an exertion to reform them during their time of detainment. In the context of capital punishment, the reformative theory is irrelevant as life and death cannot reform a person.
In the preventive theory, punishment aims to disable any prospective crime from occurring any further. The punishment is a check imposed to such an extent that the possibility of repetition of the criminal act is somewhat ruled out. By awarding capital punishment, the sovereign tries to instill fear in the minds of the people in a way trying to prevent any future occurrence of the crime.
The retributive theory outlines the idea of vengeance and does not even attempt to justify punishment by any beneficial results either to the society or to the persons punished. It propounds that a wrong act should be met with an appropriate sanction that is deserved by the wrongdoer. It, further, rules out excessive punishment. The 35th Law Commission Report has seen retribution as an important justification for capital punishment.
The deterrent theory propounds that punishment aims to prevent individuals from committing offence. The assumption behind the theory is that people being rational individuals would commit a crime only if they perceive that the gain they would generate by committing the offence would be far more than the penal consequences they would suffer. So, the deterrence theory proposes the imposition of stringent and harsh punishment. The 35th Law Commission Report stated deterrence to be the most important object of punishment in general.
CAPITAL PUNISHMENT IN WEST
Capital punishment is universal to the history of all nations including the nations in the West. Since 1630, capital punishment existed in America for offences such as murder, arson, burglary, armed robbery, rape, kidnapping, and possession of firearms which were related to violent crimes. Although the practice of granting capital punishment was less widespread in the United Kingdom as compared to the United States, a total of 270 crimes were reported to be capital offenses in England during the 1800s. The convict awarded with capital punishment was hanged publicly with citizens spectating the execution.
With the creation of the penal colony New South Wales in 1788, the English criminal law had arrived at the shores of Australian colonies, and a Court of Criminal Jurisdiction was established for dealing with more serious offences. The Black Act of 1732 had enlisted the offenses which were liable for capital punishment. The public criticism for the practice of granting capital punishment fuelled with the advancement of society.
The Eighth Amendment of the United States Constitution, in 1791, provided that the government agents would be barred from inflicting “cruel and unusual punishment” to convicts and capital punishment was awarded for murder, espionage, and treason. The test of proportionality used while granting the punishment aimed at recognizing and protecting the fundamental freedom of individuals. While the United States had reinterpreted and reanalyzed capital punishment and its application, in Europe, with the inception of the European Union, capital punishment was held to be a wrong practice that deprived the basic human rights of the defendants.
In Furman v Georgia, 408 U.S. 238 (1972), challenges to capital punishment were brought before the Supreme Court of the US as it was imposed in an arbitrary and capricious manner that led to discriminatory results. The Court held capital punishment to be unconstitutional under the Eighth Amendment of the Constitution. Further, on 29th June of 1972, 40 capital punishment statutes were effectively voided, 629 death row inmates’ sentences were commuted and their capital punishment was suspended by the Supreme Court. In Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court held that capital punishment itself was constitutional under the Eighth Amendment. With the impugned judgment, capital punishment was reinstated in various states of the US. Now, 36 American States use lethal injection either as their sole method or as an option to one of the traditional methods.
In Australia, capital punishment was abolished in accordance with section 4 of the Death Penalty Abolition Act, 1973 and there is no further intention for reinstating capital punishment in the nation. In England, the Murder (Abolition of Death Penalty) Act, 1965 had provided for the imposition of capital punishment for four offences:
b. Capital and repeated murder,
c. Piracy along with violence, and
d. Setting fire on the ships of Her Majesty.
The Capital Punishment Amendment Act 1868 had abolished the public execution of convicts. The nation members of the European Union have signed the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights of the Council of Europe which provided for the abolition of capital punishment. Except for Belarus, capital punishment is abolished in all the European Countries.
CAPITAL PUNISHMENT IN MIDDLE EAST
The Middle East countries are mostly part of the Arab World which is governed by Sharia Law. Sharia Law is a set of moral and ethical principles derived from the Holy Quran and are the sayings and practices of Prophet Mohammad. Offences under Sharia Law are divided into three categories: Qisas, Hudud, and Ta’zir and capital punishment are present under all the three domains. Capital punishment is awarded for four special crimes- murder, adultery, apostasy, and waging war against God. In modern times, capital punishments are even awarded for treason, homosexuality, espionage, rape, terrorism, drug smuggling, armed robbery, blasphemy, aggravated burglary with recidivism.
Considering the gravity of capital crimes and punishment, the offence is required to be proven substantially in a fair trial based on indisputable evidence. The Court accepts the confession of the offender as admissible evidence. The methods of execution in the Middle East include beheading, firing squad, hanging, and stoning. Further, a public execution is carried out to heighten the element of deterrence among the citizen.
In Saudi Arabia, recently, 81 people were executed for the offence of terrorism, kidnapping, torture, rape, smuggling, and armed robbery. The convicts were given a fair trial adjudicated by 13 judges and were concluded to be members of al-Qaida and the backers of Yemen’s Houthi rebels. Saudi Arabia does not even exempt children from being executed for a capital offence. Saudi stringently follows the Sharia Law, however, after the recent mass execution, the Crown Prince has claimed that the Judiciary framework of the country is reforming and restricting the use of capital punishment.
CAPITAL PUNISHMENT IN INDIA
Capital punishment is not new to India and has its mention in ancient religious texts such as Yagnavalkya. Yagnavalkya states that the purpose of punishment is to place the offender in the right path and enumerates Vadhdanda (Sanskritic version for Capital Punishment) as one of the forms of punishment. It directs for the consideration of motive, circumstances, the capacity of the criminal, and the crime before awarding capital punishment. The Indian Penal Code of 1860 and the Criminal Procedure Code of 1973 are the legislation that governs the criminal justice framework of India.
For awarding capital punishment, it was a sine qua non to state the reasons for the same under Section 367(5) Code Criminal Procedure of 1898. The said provision was repealed with the enactment of the Criminal Procedure Code of 1973 which was the recommendation of the 35th Law Commission Report of India. An amendment was incorporated under Section 354 (3) of the CrPC which provided for the requirement of “special reason” for the imposition of capital punishment and life imprisonment as punishment.
The Report on Capital Punishment 1949-1953 presented by the Royal Commission that laid out the following conditions that were to be fulfilled while the execution of capital punishment:
a. It was supposed to be less painful.
b. It was supposed to be quick.
c. Body was supposed to be mutilated at the very least.
In Deena v. Union of India, (1983) 4 SCC 645, the following test was laid down for satisfaction while execution of capital punishment:
a. The act of execution was supposed to be quick and simple and free from anything that unnecessarily sharpens the poignancy of the convict's apprehension.
b. The act of execution was supposed to result in the immediate death of the convict.
c. The act of the execution was supposed to be decent.
d. The act of the execution was supposed to not involve mutilation.
185th Law Commission Report had suo moto discussed the mode of execution of capital punishment and analyzed the mode that was most humane, least painful mode, with no mutilation of the body and easy to execute. In India, traditionally, there are two modes of execution- hanging by neck and shooting
Capital punishment faced criticism and opposition in India even. Once, a total of 13 capital punishment judgments of the Supreme Court were rendered per incuruam. The flawed judgments which wrongly granted the accused capital punishment were the gravest miscarriage of justice in the history of criminal justice. Thus, the debates for the abolition of the death penalty had fuelled.
In Jagmohan Singh v State of Uttar Pradesh, AIR1973SC947: (1973) 1 SCC 20: (1973) 2 SCR 541: (1973) 2 SCJ 365: 1973 Cr LJ 370, the Supreme Court had rejected the contention that capital punishment for an offence of murder punishable under s. 302 infringed Article 19 of the Constitution as it was not unreasonable and unnecessary in the interest of the public. It was also held that capital punishment did not violate Article 14 and did not suffer the vice of excessive delegation of legislative functions as the cases in which a Judge would impose capital punishment and life imprisonment were not exclusively provided. Since fair trials were held as per the provisions laid under CrPC and Evidence Act 1872 for imposing capital punishment, it did not contravene Article 21 of the Constitution.
DOCTRINE OF RAREST OF RARE
In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, a Constitution Bench of Supreme Court repealed the challenge of the constitutionality of capital punishment and laid down the doctrine of rarest of rare. It was held that while adjudicating heinous crimes, the mitigating circumstances pertaining to the criminal along with the aggravating circumstances relating to the offence should be given weightage. It was accepted that the rarest of the rare case was to be determined in the facts and circumstances of a given case and there was no hard and fast rule for that purpose. Although there were no strict guidelines for imposing capital punishment, the sentencing procedure was required to be in the nature of safeguards and have an overarching embrace of rarest of rare dictum. In Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra, Crl. A. No. 1478 OF 2005, it was held that the “Rarest of rare case” was an exceptionally narrow opening provided in the domain of negative precept concerning the dignity of human life which required the satisfaction of an additional condition that the alternative option was unquestionably foreclosed. The dictum in its essence breathed life in "special reasons" under section 354(3) of CrPC.
The Indian Penal Code provides for the imposition of capital punishment for the following offences:
i. Treason, for waging war against the Government of India (Section 121)
ii. Abetment of mutiny committed (Section 132)
iii. Perjury resulting in the conviction and death of an innocent person ( Section 194)
iv. Murder (Section 302)
v. Abetment of suicide by a minor, insane person, or intoxicated person (Section 305)
vi. Kidnapping for ransom (Section 364A)
vii. Attempted murder by a serving life convict (Section 307(2))
viii. Rape and injury which causes death or leaves the woman in a persistent vegetative state (376A)
ix. Certain repeat offenders in the context of rape (Section 376 E)
x. Dacoity with murder (Section 396)
Statutes that provide for capital punishment other than IPC:
- The Air Force Act, 1950,
- The Army Act 1950
- The Navy Act 19572
- The Narcotic Drugs and Psychotropic Substances Act, 1985
- Explosive Substance Act, 1908
In Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, the Court held that in accordance to the rarest of rare dictum, the expression 'special reasons' under Section 354 (3) of the CrPC meant 'exceptional reasons' founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal.
In Machhi Singh and others v. State of Punjab, (1983) 3 SCC 470, the accused had murdered an innocent child who could not have provided an excuse or provocation for the murder. The murder was held to be committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner which arouse intense and extreme indignation of the community. Considering the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the case was held to fall in the category of rarest of rare cases calling for capital punishment to be imposed on the accused. The Apex Court had provided for the following contingencies to be considered for murder to fall within the ambit of rarest of rare doctrine:
A. the motive of the perpetrator,
B. the manner of commission of a crime,
C. the magnitude of the crime,
D. the anti-social or abhorrent nature of the crime and
E. the personality of the victim.
In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220, a young girl of the age of 18 years was raped and murdered. It was observed that the accused had committed a cold-blooded and pre-planned cold-blooded and pre-planned murder without any provocation after committing rape on an innocent and defenseless young girl. The offence fell within the ambit of rarest of rare cases where the imposition of capital punishment was inevitable.
In Raju v. State of Haryana, (2001) 9 SCC 50, the accused had raped and murdered an 11-year-old child. While acknowledging rape and murder as heinous offences, three factors were taken into account:
a. The murder was committed without any premeditation;
b. The accused did not have any previous criminal record;
c. There was nothing to show that the accused would be a grave danger to society.
It was held that there was nothing on record that could prove that the accused possessed grave danger to the society at large and was required to be eliminated. Therefore, the case did not fall in the ambit of rarest of rare, and the accused was sentenced to life imprisonment instead of capital punishment.
In Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767, the Supreme Court had held the Bachan Singh v. State of Punjab had indicated for the comparison of other cases for the determination of the rarest of the rare cases. The following principles were laid for determining whether the case fell within the ambit of rarest of the rare case:
a. Comparison of the case with other cases of a similar or even graver nature and
b. Comparison of the punishment awarded in those cases.
In Govindaswami v. State of Tamil Nadu, (1998) 4 SCC 531, the accused had murdered five members of his uncle’s family while they were sleeping. The murder was cold-blooded, premeditated, and the intent behind the offence was to grab property, therefore, the Court had awarded the accused capital punishment.
- Capital punishment is mostly abolished in the West and the countries where it is still existing impose the punishment for serious offences only. In the Middle East, capital punishment is legal and is imposed for a wide range of offences. In India, the imposition of a capital offence is an exception and the dictum of rarest of the rare case is applied.
- The mode of execution of capital punishment in most of the advanced Western Countries is lethal injection. In the Middle East, the modes include beheading, firing squad, hanging, and stoning. India still uses the traditional mode of hanging by neck and shooting.
- In the Middle East, the offender can be a witness of their own offences and in the absence of another witness, the offender is penalized, if they abstain from confessing. In West and India, confession does not have any evidentiary value. In the Constitution of India, the right against self-incrimination is enshrined in Article 20(3).
- In the Middle East, the execution is held in public whereas, in West and in India the execution is confined in between the four walls of the prison.
- One similarity that exists in West, Middle East, and India in the context of capital punishments is they are awarded after a fair trial
The debate over the morality and constitutionality of capital punishment is ongoing and is not going to end any sooner. Capital punishment is said to infringe the fundamental rights of the offender; however, fundamental rights are not absolute and can be restricted reasonably even to the extent of prohibiting it totally if social defence compels such a step. During the argument of the fundamental rights of offender, the fundamental rights of victims are seemingly forgotten. Even capital punishment is a time memorial concept, however, with the progress of society, the law needs to transform to cater to the needs of society. There is a need for change in the traditional capital offences as well as the mode of execution of capital punishment.