Lucknow, UP, India, 226028

DEATH PENALTY; FROM THE PRISM OF JURISPRUDENCE

DP

INTRODUCTION

It is the sentence of death order by the court of law after conviction. It is the cruel and inhuman and degrading punishment. If for a highly atrocious crimes done in a inhumane manner, the most deterrent penalization if not given the case of deterrent punishment will lose its significance, it has both deterrent and preventive effect.

The Indian criminal legal philosophy is based on the accumulation of preventative and reformatory concept of penalization.

There pertain always two aspects of punishment. One is by protecting the society by reducing the crime rate or an end to itself. Other is by giving a deterrent effect and reforming him into a law- abiding citizens.

The different theories of penalization are given below:

  1. Deterrent Theory: Here punishment is assumed as a warning for others. The more brutal the crime is committed by the criminal, the severe should be his punishment. The main motive of this punishment is to create deterrent effect in the minds of individuals of society.
  2. Preventive Theory: This theory lies it basis on the view of bar on the repetition of evil-doing by incapacitating the offender through measures such as imprisoning him, capital punishment, etc. The objective of punishment according to the given concept is to divest the wrongdoer from the ability to reiterate the offence. Death penalty is the most trenchant mode of punishment. 
  3. Retributive Theory: This theory believes in the maxim “An eye for an eye and tooth for tooth”. This theory involves two conceptions –
  4. Punishment is an end.
  5. The primary justification is found in the fact that the offence which has been committed already should not gain any future advantages to be gained by its infliction.

HISTORY OF DEATH PENALTIES

Since the beginning of civilizations on earth, corporal punishment of criminals and dissidents has been used by nearly all social groups. “Even, most of the diachronic records and various tribal be speak that death penalty was a part of their justice system. This is the reason that consequently, different classes of royalty, aristocracy, commoners and slave holding emerged”.

“The earliest and most famous example of codified death penalty law is code of Hammurabi (1754 BC) which set the different punishment and compensations according to a different class/ group of victims and perpetrators”.

INDIAN LAW AND DEATH SENTENCE

  • In the British era, Indians were executed after or before
  • ‘The execution of death sentence is carried out by hanging by the neck until death (under P.C.)’. The law however allows death by shooting in case related to the armed forces if the court martial hearing the case deems fit.
  • The most recent case of execution is that of NIRBHAYA rape case (2012) convicts on MARCH 20,
  • ‘Article 21 of the Indian constitution says that every citizen has the right to life and it cannot be taken away except by the due procedure established by law’.

CASE: “Bachan Singh vs. State of Punjab, 1980 2 SCC 689”

 In this case, the constitutional bench made it very clear that in India death penalty can be bestowed only in the rarest of the rare cases.

According to IPC, along with other Acts, 11 offences committed within the territory of India are punishable by death. Offences like Murder, criminal conspiracy to commit a capital offence, abetting suicide of minor, abetting a mutiny in the armed forces or engaging in it, Drug trafficking under the Narcotics Drugs and Psychotropic Substances Act, 1953, aiding or abetting an act of sati, etc.

  • It has been contented many a times that a level of legislative structure needs to be formulated for the “Rarest of the Rare” cases so that it can be pertained that no one is punished just because the judge or the court is satisfied that it is the rarest of the rare It is solely dependent on the individual philosophy of judges constituting the bench, according to the critics.
  • Even the procedure or time period of executing death sentence after the offence is too long. Nirbhaya convicts were hanged after 7 years and 3 months of the

ARGUMENTS IN THE FAVOR OF THE DEATH SENTENCE

  1. The Death Penalty ensures to deliver justice to those who have been put to death by the    culprits

“Death Penalty is necessary to deliver justice — especially to victims of homicide and utmost violence. The capital punishment provides for retribution against perpetrators and makes sure that they pay for their actions. Without the death penalty, it’s otherwise difficult to make murderers pay sufficiently for their crime, as no punishment other than death really equates to that of the crime of killing”.

  1. The Death Penalty is of immense important in lieu to  protect the society

“Some criminals are so difficult to be reformed that they cannot be simply allowed to live in the society this is because every moment they are viable is another minute that they are a dangerous to the society”.

  1. The Death Penalty is Necessary for Families of Victims to Move on Properly

“The capital punishment is needed as many families who suffers the pain of being a victim of a violent incident will always live in a trauma and fear of being the victim again if they know that the person who did the inhuman act of executing their family members is still viable. The fear of being affected again by the criminal always grips the families of the victims even if the criminal is placed in the most established tight security facility possibly available”.

  1. The Death Penalty is Cheaper Than a Lifetime Prison Term

“One of the most disputable controversy for the capital punishment is that the cost of keeping the criminal imprisoned for the duration of their natural life is immense. It would be unjust if the expenditure   levied on the criminal maintenance while being in life term imprisonment is taken from the pockets of   the society i.e. the taxes”.

ARGUMENTS IN OPPOSITION TO THE DEATH SENTENCE

  • Capital punishment has failed to serve as a deterrent to control It violates the international human rights laws.
  • As capital punishment is unalterable: – righteous person can also be wrongly put to death.
  • There is no uniform and fair principle on the execution of convicts on death row.

1: Value of human life

“Everyone thinks human life is valuable. According to the believe of people in opposition of the death penalty human life is so precious that even the pessimal murderers should not be disadvantaged of their lives”.

2: Right to live

“From the birth an individual is provided with an intrinsic human right to life under fundamental rights, even if a person who commits murder; which sentences him with death penalty and executing them violates that fundamental right to life”.

3: Execution of the innocent

“The most common and most cogent argument against death penalty is that sooner or later, vindicated people will get killed, because of mistakes or imperfectness in the justice system”.

THOMAS ACQUINAS and SUMMA THEOLOGY

“According to Aquinas, certain contexts change a bad act (killing) into a good act (killing to repair the violation of justice done by the person killed, and killing a person who has forfeited their natural worthiness by killing)”.

HART’S VIEW ON DEATH PENALTY

According to Hart’s views, a legal system combines both primary and secondary rules in a rather complex society. Hart considers the rule of recognition as a primary rule out of all the secondary rules.  The theories of Hart and Kelsen allows for the enforcement of the death penalty on the respective premises where there is a primary norm which recognizes the capital punishment as being a valid course of action,

CONCLUSION

Therefore, after analyzing all the pros and cons of providing death penalty as a capital punishment of heinous crimes we can conclude by saying that CAPITAL PUNISHMENT of course has a preventive result on potentially fierce offenders.

For the community for whom mere threat of incarceration is not adequate limitation. Death Penalty is the only penalization which adequately reflects the gravity of the umbrage of heinous crimes like homicide and treason and that death penalty is the only way of ascertain that a murderer or traitor won’t be able to restate his crimes and will serve as an example.

Author(s) Name: Muskan (Panjab University Regional Centre , Ludhiana)

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