Can Capit al Punishment Ever be Justified: A Critical Study · 1P. Shanthini and 2M. Kannappan 1Saveetha School of Law, ... Jackson, 1997) Prof.Andrew Novak deals with the development

Can Capital Punishment Ever be Justified: A Critical

Study 1P. Shanthini and

2M. Kannappan

1Saveetha School of Law,

Saveetha Institute of Medical and Technical Sciences,

Saveetha University,

Chennai.

[email protected] 2Saveetha School of Law,

Saveetha Institute of Medical and Technical Sciences,

Saveetha University,

Chennai.

[email protected]

Abstract The concept of death sentence has been a subject matter of debate for

long period of time in and across the world. Majority opinion of public is

that death penalty must be abolished as it violates the Human Rights at

large. Modern jurists are of the opinion that if killing is wrong, nothing can

make it right either the legal or social sanction . If it is wrong for a man to

kill another man, so it is even for the State to do. It is debated that death

penalty has had no visible effect as a deterrent and has utterly failed to

reduce the number of murders, which, accordingly makes the inflection of

capital punishment completely useless. The death penalty or the capital

punishment is terrible in listing itself and when it is used for someone of

horrify all those whose hear this word. In this paper the researcher tries to

analyse the historical background of death penalty in India and origin of

death penalty in Arab countries. And to study the alternative to capital

punishment and religious views on capital punishment and role of Human

Rights commission in execution of death sentence.

Key Words:Death penalty, human rights commission, murder, execution,

non governmental organisation.

International Journal of Pure and Applied MathematicsVolume 119 No. 17 2018, 1325-1338ISSN: 1314-3395 (on-line version)url: http://www.acadpubl.eu/hub/Special Issue http://www.acadpubl.eu/hub/

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1. Introduction

All kinds of punishments are based on the same proposition that is there must

be a penalty for doing something wrong or an act which is prohibited by law.

There are two main reasons for inflicting the punishment on the offenders or

wrong doers. First reason is that the belief it is both right and just that a person

who has done wrong should suffer for what he has done; the other reason is the

belief that inflicting punishment on wrongdoers discourages and creates fear in

minds of other from doing wrong. The capital punishment or death penalty also

rests on the same proposition as other punishments but is inflicted on wondrous

only in cases of rarest of raw crimes. The debate on capital punishment is the

most controversial debate, keeping in mind the situation that has been brought

about by today. Capital punishment is the integral part of the Indian criminal

justice system. Due to Increasing strength of the human rights movement in

India, the existence of death penalty is questioned as immoral and is considered

as violative Of fundamental rights. Capital punishment, which is also called as

death penalty, is execution of an offender sentenced to death by court of law

after conviction for a criminal offense. The Capital punishment must be

distinguished from the extrajudicial executions which is carried out without

following due process of law. The term death penalty is used interchangeably

with the term capital punishment, though the imposition of penalty is not always

followed by execution, because of the possibility of commutation to life

imprisonment . (Dhar, n.d.). The term death penalty stands for the most severe

kind of punishment. Death penalty is the punishment which is awarded for the

offences which are considered to be most heinous, grievous and detestable

crimes against humanity. The definition and extent of these crimes vary from

country to country, state to state, age to age, and the manner of implication of

capital punishments also differs. Capital punishment is the most extreme

punishment available and also a unique form of punishment which is followed

in almost all the countries in the world to punish an offender or wrongdoer

(Heilbrun, Dvoskin, & Marsh, n.d.). Death penalty was very surprisingly first

banned in Israel. There are many countries in and around the world where the

infliction Of has not been banned and many use it only in extreme cases. Death

sentence are still a matter of major debate. Death penalty has been a subject

matter of debate for long now, and across the world public opinion is in favour

of abolishing it, as it is increasingly seen as a barbaric measure to check crime

(Gregory, 2011) . The author had tried to study the history of capital

punishment in India. To know about the various offences for which capital

punishment is awarded in arab countries. To study the various religious views

on capital punishment. Aim of the paper is to study the role of Human Rights

Commission.

Hypothesis

The human rights commission and other NGOs stand as an obstacle in

executing the death sentence by judiciary in India .

International Journal of Pure and Applied Mathematics Special Issue

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2. Methodology

Present study is a doctrinal study and is based on secondary sources which

includes E Sources, Books, Journals, Research articles, newspaper etc.

3. Review of Literature

The jurisdiction of courts in executing the death sentences and conformation of

death sentences, Pardoning power of the President, and suggest alternative

measures instead of capital punishment (Kumari & Kumari, 2007) . The

constitutional validity of death sentence, judicial application of death penalty

and also deals with the landmark case of Bachan Singh vs. Union of India

(Johnson, n.d.). The law commission report deals with history of death penalty

in India, a international trends in death penalty, penological justifications of

death penalty, sentencing in capital offences (Hiremath, 2003) various aspects

of capital punishment, methods of capital punishment and capital punishment in

various countries (Johnson & Zimring, 2009). History of capital punishment,

death penalty under Indian Penal Code, execrations of death sentence,

constitutional validity of death sentence (Nuemat & Ghnaimat, 2017) .

Historical background of death penalty, religious views on death sentence ,

methods of capital punishment and arguments in favour and against of capital

punishment (Chandra, 2010) . The constitutional validity of death sentence, life

imprisonment as an alternative to death sentence, birth of doctrine of rarest of

rare cases, Test of reasonableness of capital punishment, Role of Presidents

(Noorani & South Asia Human Rights, 2012). The article deals with various

decided case laws such as Jagmohan Singh vs. state of U.P, Rajendra Prasad vs.

State of U.P, Bachan Singh vs. State of Punjab, Machi Singh Vs. State of

Punjab (Kaur & Verma, 2012; Noorani & South Asia Human Rights, 2012).

The jurisdiction of courts in executing the death sentence, confirmation of death

penalty, Pardoning power of President and alternative measures to capital

punishment (Huston, 1946). An interesting argument whether death penalty

should be banned or not and constitutional validity of death penalty, reasons for

abolition of death penalty (Pannick, 1982). A constitutional debate over the

abolition of death penalty in India, constitutional validity of rarest of rare

doctrine, and also deals with judicial process (Bindal & Raj Kumar, 2013) .

India among all country which stands in favour of death penalty it is

increasingly finding itself in the margins of the world politics and international

standards on this issue. India gave reasons for this retention position(Sato,

2013) Various references from Supreme Court previous law commission reports

history of death penalty in India, penological justification of death penalty

sentencing in capital offences (Law Commission of India, 2003) . The book ask

some fundamental questions about the ultimate legal punishment awarded to

those accused of major offences (Gandhi, 2016). Reena Mary deals with social

exclusion marginalisation and antecedents to death penalty, death penalty is

constructed account by state machinery and prisoners on death row (Allen &


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Jackson, 1997) Prof.Andrew Novak deals with the development of Human

Rights and capital punishment as well as those exploring the counters of

competitive criminal justice (Novak, 2016). N.Prabha Unnithan brings together

the driverseset of 32 academics from India the US And UK who have authored

19 chapters on many aspects of crime and justice in India (Johnson, n.d.). A

very recent brutal gang rape of a eight year old child in Jammu and Kashmir

and the author have highlighted that a law should be passed to make death

penalty mandatory for those raping minor (Noorani & South Asia Human

Rights, 2012). Many the experts opinion which says that child sex abuse is a

complex crime, murder, the Societal taboo under reporting and hostility to the

victim can lead to law conviction rates (Maheshwari, 1967). A very recent gang

rape of an eight year old child in Jammu and Kashmir and provision of death

penalty for raping minors below 12 years will deter such heinous crimes in the

country (Winter, 2008)

4. Historical Background of Capital Punishment in India

In all most all the parts of the world death sentence was in existence from the

ancient period. During the primitive conditions of society death due to violence

was an ordinary phenomena. Tribal warfare were often the very conditions of

existence. In such conditions life was very cheap, the concept of personal

vengeance dominated the theme of punishment. The Death and exile were two

principal devices which was used to eliminate the dangerous elements from the

group. Thus death sentence in those days was considered to be the quickest

mode of retribution as well as deterrence. Robertson Smith has stated that, "in

an early society, we may safely affirm that every offence to which death is

attached was viewed primarily as a breach of Holiness, for example, marrying

within the kin and incest, are branches of the holiness of the tribal blood which

would be supernaturally avenged, if men overlooked them. Capital punishment

is the strictest penalty which was awarded. The Punishment, as a rule, by and

large, depends upon the degree of culpability of an criminal act and the danger

posed by it to the society and also the depravity of the offender. The risk of

penalty is the cost of crime which the offender expects. When the sufferings is

high enough, relative to the benefit which the crime is expected to yield, it will

deter a considerable number of people and prevent them from committing the

same crime. This is true in respect of the crimes which is punishable by

awarding death sentence. The Fact that is undoubtedly admitted is that the

death sentence is justified only in extreme cases in which a high degree of

culpability is involved in causing grave danger to the society. During the

ancient period or primitive society the feelings of retaliation used to be very

high and to pay in the same coin by the kith and kin of the victim was regarded

as an honourable act and the respect which was given for life was not upto the

mark and the society was not developed into a body of responsible citizens, but

when the societies have come under the organization of State and when the


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State has assumed the role of guardian to people, it has the duty to answer and

satisfy the wounded feelings of the family members of the victim or the

convicted person who as been murdered by punishing appropriately the

murderer who had no regard for the life of the victim. Moreover, the State has

to and can ensure security to people only by punishing the guilty or wrongdoer.

It is true that the Hammurabi code “eye for an eye” cannot be the vision of

modern penology but at the same time modern penology should take note of the

point that those who have taken the mission of committing murders for gain and

bodily lust (rape resulting in death) and thereby endanger the lives of others

cannot expect to enjoy life and smile in jail.

Pre-Constitutional History and Constituent Assembly Debates

An early attempt for abolition of the capital punishment took place during the

pre-independent India, when Shri Gaya Prasad Singh attempted to introduce a

Bill abolishing the capital punishment for offence mentioned under Indian Penal

Code in the year 1931 but this was defeated. During the same period, in the

March 1931, following the execution of Bhagat Singh, Sukhdev and Rajguru by

the British government, the Congress party moved an resolution in its Karachi

session, which included a demand for the abolition of the capital punishment.

The India’s Constituent Assembly Debates between 1947 and 1949 also raised

questions around the judge-centric nature of the capital punishment and

involvement of arbitrariness in infliction of the punishment, and its

discriminatory impact on people living in poverty, and the possibility of error.

5. Religious Views on Death Penalty

In India, Death sentence is as old as the Hindu society. It was prevalent during

in India from the time immemorial. The references about death penalty in our

ancient scriptures and law books. The Hindu law givers did not find anything

abhorrent in awarding death sentence to wrongdoers, they have justified it in the

cases involving serious offences against the individuals and the state.

Generally, the death penalty was always accompanied with an infliction of

torture and was applied indiscriminately to all the offenders. During the ancient

Indian civilization knew of death sentence its desire at some point of time in

history has been affected because of "The people who were most truthful, soft

hearted and benevolent and to them vocal remonstrance sufficed. But due to the

failure of these measures corporal punishment and death sentence were inflicted

on wrongdoers in order to protect the society from violent criminals." Even

during the Buddhist age when Ahimsa was the basic rule of conduct, the

principle was not applied in the realm of penology. King Ashoka did have

allowed capital punishment. During the 4th century B.C., the science of

penology was fully developed as a subject of study and statecraft in India.

Kalidasa has beautifully stated that the need of punishment of those who deserve

it as necessary for preservation. This idea was also reflected in the Mahabharata

which stated that "if by destroying an individual or a whole family, the kingdom


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become safe and danger-proof it ought to be done (in the interest of Society)

“According to Narada wicked people should be punished by the king. A fire is

not polluted by burning, in the same way a king will not get polluted by

inflicting punishment on criminals. Brihaspati clearly stated that when the

safety of many could be ensured by destroying a single offender, his execution

was productive of religious merit. The Capital punishment and corporal

punishments was regarded as the two effective measures to ensure law and

order in the society (Hiremath, 2003)

6. Under Muslim Laws

The concept of crime and punishment is not new in the society and can be

traced back to unwritten history, though much of it has reached us through the

revealed sacred books and the written laws over a period of 35 centuries or

more. According to Mohammedan law, punishment should always be deterrent.

If An accused is found guilty he must be punished at a public place in order to

open the eyes of other potential criminal. Islamic law has prescribed that death

sentence must be awarded to premeditated murder. This point is stated through

verse 179 Sura II from the Holy Quran. "On wise person (here is safety for

your lives in death penalty and we hope that you would never violate and would

always abide by this law of tranquility. "Punishment is an natural reaction

which directly follow a physical injury caused to any living creatures as a

natural defence or resistance to the wound and pain. Aggression against any

human being, the crime of adultery, rape and defamation, the crime against

property are crimes specified in both the revealed doctrines and the laws made

by man both of which are oriented towards the -welfare of mankind, and the

social system and implementation of right and justice. Punishment for the

commission or the omission of acts prescribed under law and duties which are

commanded by Allah and is oriented towards the extended welfare, with which

the Islamic doctrine is concerned for the good of humans and to protect the

human beings and defend it from evil deeds by specification of the acts which

require implication of penalties against the offenders. First Category Of crimes :

Crimes with an impact on social lives of the people. Under this, fall the

category of crimes that badly affect the society at large. And These are further

subdivided into two types. First Kind of Crime includes those Crimes affecting

the social existence comprise offences liable to hudood which means

punishments ordained by Allah. Thus whoever is guilty of any one of these

offence shall be punished with the corresponding 'had' regardless of the victim's

which is nothing but the aggrieved party's opinion and personality of the

offender. Second Type of Crime is, the crimes affecting the social life consists

of offences includes qisas and diyat. Such offences often constitute cases of

homicide and infliction of wound whether willful or unintentional which are as

under: (1) Intentional or felonious homicide. (2) Suspected willful homicide. (3)

Unintentional homicide. (4) Wounding intentionally. (5) Wounding

unintentionally (Sharma & Bajpai, 2015)


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7. Origin of Capital Punishment in Arab Countries

The concept of Capital punishment is a legal penalty in the United Arab

Emirates, but it is rarely carried out in the country. Under the Emirati laws,

various crimes carry the death penalty, and the only method of execution is

through firing squad. Current Emirate law allows the death penalty for apostasy

from Muslim, treason, murder, rape, theft extortion, aggravated forms of

robbery, kidnapping, terrorism, and drug trafficking, but death sentences are

frequently commuted to life sentences. In the year 1995, Sarah Balabagan, an

Filipino worker, caught the attention of most of the people living in the UAE.

She was reported to have murdered her own employer in his Al Ain house, but

she has always maintained that she only killed her employer in exercising self-

defence in order to protect herself when he tried to rape her. After sometime the

UAE president got himself involved in the case, Balabagan was set free, but

was asked to pay compensation. she deported back to her country and her right

to remain in the country was cancelled. On the day of May 20, 2015, Jennife

Dalquez, from General Santos City, Philippines, was punished by infliction of

death sentence by an Al Ain court for killing her employer on December 7,

2014. But She claimed to have stabbed her employer in self-defence when he

attempted to rape her now an appeal against her sentence with the help of the

Philippine embassy has been filed which Is still pending before the court. In the

month of June 2015, the Federal Supreme Court Of Abu Dhabi sentenced an

Emirati woman, Alaa Bader al-Hashemi, to death for the murder of Ibolya Ryan

and planting a "handmade bomb" in an Egyptian-American doctor's home in

Abu Dhabi. The Emirate woman committed the said crime in the month of

December 2014 and was executed at dawn on July 13, 2015. This is the only

case where a prisoner has been executed within such a short time frame and this

is one of the few cases of a woman being executed (“Judicial caning, Arab

Emirates, Oct 1995 - CORPUN ARCHIVE aeju9510,” n.d.)

The procedure for Death penalty in Saudi Arabia is governed by Mohammedan

law, and are based on religious interpretation and also on Sharia principles. In

Saudi Arabia, the conviction for murder requires a proof beyond a reasonable

doubt (Deokin Lee & Lee, 2010). Moreover the minimal weight is granted to

the circumstantial evidence; the bulk of evidentiary support for a conviction is

drawn from witnesses and confession. Although the principle followed in Saudi

Arabia is that a person is “innocent until proven guilty,” there is no

constitutional right to the jury trial for murder; a panel of three judges acts as an

sole fact finder. In Saudi executions are performed publicly through

decapitation, as the principle behind such execution is to teach the community a

“lesson.”


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8. Constitutional Validity of Death Sentence in India and Role of National Human Rights Commission

Constitution of India is an amalgam of many constitutions which means Indian

constitution includes the principles adopted from various constitutions such of

America, Britain and Japan. Many main provisions in the constitution of India

guaranteeing the right to life has been borrowed from the American constitution

and the Japanese constitutions. The right to life is not something that is created

or even confed by the constitution. The constitutional provision is only an

evidentiary value. Allan Gledhill has stated that In some of older countries the

right to life and liberty receives more effective protection from the

constitutional principles than they do in countries with constitutions elaborating

the right. The right to personal liberty enjoyed by the citizens of India is not

remarkably less than that is being enjoyed by a citizen of any other

parliamentary democracy. In a case of murder for which punishment is

prescribed under Section 302 of the IPC, the judges can choose between death

sentence and imprisonment for life. They enjoy a wide discretionary power to

that effect, but the discretion is not totally unqualified. The question of life and

death is left to the discretion of a judge. It is at this point the constitutionality of

laws providing Death Penalty becomes question. In addition to that, the Indian

constitution guarantees to every citizen a fundamental right to life and personal

liberty subject to its deprivation by the procedure form violates the citizen's

right to life. Further the provision under Art. 14 of Constitution provides

“equality before law and equal protection of the laws", which means that all the

persons are equal before law and has to equally protect the law. The concept of

equality incorporated under Art. 14 of Indian constitution finds echo in the

preamble to the constitution. Thus the Capital sentence, is therefore, an

antithesis of one's right to life

Rarest Of The Rare- Meaning And Concept: (Test of reasonableness of

Capital Punishment in India)

The Protagonists of an "eye for an eye" philosophy demand "death for death”

but The Humanists, on the other hand say that press for the other which means

death in no case. A principle has been developed in the case of Bachan Singh

v/s State of Punjab wherein the 'rarest of rare case’, the formula for imposing

death penalty in a murder case which has been upheld by the Supreme Court .

The constitutional validity of the death sentence was challenged from time to

time in numerous number of cases starting from Jagmohan Singh v. State of U.P

where the Supreme Court has rejected the argument that the death sentence is

the violation of the “right to life” which is guaranteed under article 21 of

constitution of India. In another case of Rajendra Prasad v. State of UP, Justice

Krishna Iyer has empathetically stated that death sentence is violative of articles


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14, 19 and 21 of Indian constitution, But a year later in the landmark case

of Bachan Singh v. State of Punjab, a majority of 4 to 1 (Bhagwati

J.dissenting) the Supreme Court has overruled its earlier decision given in

Rajendra Prasad case. It is expressed that the view that death Sentence , as an

alternative punishment to murder is not an unreasonable punishment and hence

it is not violative of articles 14, 19 and 21 of the indian constitution. The

Hon’ble Supreme Court in the case Of Machhi Singh v State of Punjab laid

down the broad outlines of the circumstances when death sentence should be

imposed on the offenders.

Similarly in various cases the Hon’ble Supreme Court has given its views on

death sentence and on the constitutional validity of infliction of death penalty.

But the punishment is still used in India, few years back the death penalty was

given to Mohammad Ajmal Kasab. The Pakistani gunman was convicted in the

Year 2008 who was involved in the Mumbai attack was sentenced to death by

hanging and after a long discussion, politics and debate and was finally hanged

on 21 November 2012. Next in the row of infliction of death penalty is Afzal

Guru, who was convicted in the Year 2001 for his involvement In the

Parliamentary attacks was also hanged after a long political discussion on 9

February 2013 (G & Sreeparvathy, 2013).

9. National Human Rights Commission

The UN Commission on Human Rights formulated that the Universal

Declaration of Human Rights (UDHR). The principles of UDHR was adopted

by the United Nations General Assembly in the year 1948. But the UDHR was a

nonbinding resolution, but is now considered to have acquired the force of

international customary which may be invoked in appropriate circumstances by

national and other judiciaries (Murthy, 2013). The UDHR urges member

nations to promote a number of human, civil, economic and social rights. The

adoption of the Universal Declaration is a significant international

commemoration marked each year on 10 December, and is known as Human

Rights Day or International Human Rights Day. The theme of this year’s

Human Rights Day – “Human Rights 365” encompasses the idea every day is

Human Rights Day and everybody at all times is entitled to the full range of

human rights (Inam, 2010) ) The Commission performs the following

functions, namely:

Inquire, suo motu or on a petition presented to it by a victim or any person.

1. violation of human rights – this is extremely obvious.

2. negligence in the prevention of such violation, by a public servant.

3. intervene in any proceeding involving any allegation of violation of

human rights pending before a court with the approval of such court.

4. visit, under intimation to the State Government, any jail or any other

institution under the control of the State Government, where persons are

detained or lodged for purposes of treatment, reformation or protection


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to study the living conditions of the inmates and make

recommendations.

5. review the safeguards provided by or under the Constitution or any law

for the time being in force for the protection of human rights and

recommend measures for their effective implementation.

6. review the factors, including acts of terrorism that inhibit the enjoyment

of human rights and recommend appropriate remedial measures.

7. study treaties and other international instruments on human rights and

make recommendations for their effective implementation.

8. undertake and promote research in the field of human rights.

9. spread human rights literacy among various sections of society and

promote awareness of the safeguards available for the protection of these

rights through publications, the media, seminars and other available

means.

10. encourage the efforts of non-governmental organisations and institutions

working in the field of human rights.

10. Conclusion

India has not witnessed any movement for the abolition of death sentences . But

it does not mean that no attempt was made for the abolition of death penalty.

Many number of attempts have been made to get rid of this kind of extreme

penalty. The constitutional validity of death sentence has been challenged in a

number of cases and this has been challenged on a number of grounds. The

controversy of death penalty has assumed a new significance introduced by the

Supreme Court Of India in the interpretation of Article 21 of Indian

Constitution. The epoch making and precedent shattering decision of Maneka

Gandhi Vs Union of India has laid down the doctrine of reasonable procedure

for the deprivation, of life and personal liberty that is no person can be deprived

of right to life and personal liberty except the procedure established by law. The

Supreme Court held that the procedure for the derivation of life and personal

liberty must be fair, just and reasonable and not fanciful, oppressive or arbitrary.

Thus it is clear from the study that not only Human rights Commission and

other NGO stand as an obstacle in executing the death sentence by judiciary.

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[34] Chandra, A. (2010). Gender Dimensions of the Death Penalty in India. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.1617603


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