This article has been written by Adv. Aniket P. Kamtam, a 2nd Year MBA-LAW Student from SVKM’s NMIMS SBM College, Vile Parle West.
What is Capital punishment? The sentence of death for a serious crime. Also termed death penalty.
This punishment is not new to the modern civilization, it origins its presence from the age of stone –age when men killed the other if they harm them. But during those days it was not the law as on the face of it, it was just reciprocal action.
Now in the modern world Capital punishment is the outcome of the deterrence theory of punishment. This theory say, the act or process of discouraging certain behavior, particularly by fear; especially as a goal of criminal law, the prevention of criminal behavior by fear of punishment.
A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant.1
Is it the need of the society to have resort to such theory?
The answer is not yes, nor No but the answer has its intelligible justification on the lines of state and the morals of the society. Society always expects that it shall live in safe corridors surrounded by good social human beings. But this desires get spoiled when the crime happens, that to in heinous manner which is beyond the imagination of a common man.
Hence to deter the prospective humans from crime the state at large has accepted the capital punishment for the rarest of the rare crime. But there is no proven study that the deterrence theory really deters the humans from the homicide crime. Hence many a times state floats the remission policy were the life imprisonment prisoners are remitted to a specified term punishment and given the opportunity to accommodate themselves with the societal principles.
The argument which is leading the abolish of capital punishment is that many countries have started to adopt the right to life in its very strict manner rather than with exceptional provisions.
The most prominent is the United nations adopted resolution of International Covenant on Civil and Political Rights (ICCPR) PART III Article 6 says that “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”. This article also says that the capital punishment shall be given only in the rarest of the rare case like heinous crime. “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court”2.
Arguments which favors mostly the abolition of capital punishment is the International conventions were by one or the other way the country adopting the capital punishment is party. So, now they have to adhere to those international treaties and convention. UN Economic and Social Council enacted Safeguards in 1984, to protect the rights of the person sentenced with death penalty. It say that the death row person shall have all the rights equal to the other person who have not committed crime.
Safeguards guaranteeing protection of the rights of those facing the death penalty, Approved by Economic and Social Council resolution 1984/50 of 25 May 1984.3
- In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.
- Capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
- Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane.
- Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.
- Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.
- Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory.
- Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.
- Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence.
- Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.
India being the signatory to the resolution has adopted the resolution. But we have our own judicial interpretation to it in Bachan Singh vs. State of Punjab and is termed as ‘Rarest of Rare Case’.
Bachan Singh’s majority rested on 3 tests as such-
- Individualized Sentencing- i.e. pertaining to particular facts and circumstances of case and the individual involved.
- Rarest of Rare case- i.e. the exceptional case.
- Principled sentencing- i.e. examining circumstances of case and comparing them to other similar cases or instances to trace and mark the exceptional rarity for death sentence.
Bachan Singh’s case laid out some of the aggravating factors that can be considered, weighed with mitigating factors-
- The element of previous planning, pre-mediated and calculated act- accompanied by extreme or exceptional brutality.
- If murder is shadowed by exceptional depravity.
- Murder of Armed Force member or Police Force or Public Servant, when such member was on duty or as a result of anything done or attempted to be done by such member in lawful discharge of his duty, notwithstanding if victim was such member or a public servant at the time of the murder or had ceased to be so.
- Murder of person who acted in lawful discharge of his duty, illustratively under section 43 of Cr.P.C or rendered assistance to magistrate or Police Officer as required under relevant provisions.
Bachan singh case is still the benchmark case of the Indian judiciary before penning down the death penalty. This case has both the reasons for the capital punishment and mitigating factors to deter from sentencing capital punishment.
More Information: https://www.ohchr.org/sites/default/files/newyork/Documents/Moving-Away-from-the-Death-Penalty-2015-web.pdf
Reference:
- https://doi.org/10.1080/0731129X.2017.1298879 ; T1 – Taking Deterrence Seriously: The Wide-Scope Deterrence Theory of Punishment
- https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights